Seow Teck Ming and Another v Tan Ah Yeo and another and another appeal

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 06 June 1991
• Neutral Citation: [1991] SGCA 16
• Plaintiff Counsel: Karuppan Chettiar (Murphy & Dunbar),Loh Boon Huat and Steven Ang (Godwin & Co)
• Date: 06 June 1991
• Year: 1991
• Subject Matter: O 57 rr 4 & 17 Rules of the Supreme Court 1970,Whether Singapore River place for navigation,Whether solicitors filed worthless action,Relevance of post-writ factor,s 8 Maritime Conventions Act 1911,Pleadings,Limitation action,Measure of damages,Application to amend to include defence of limitation,Appeal from decision of judge-in-chambers,Prejudice as a post-writ factor,Prejudice to plaintiffs caused by amendment,s 34(2) Supreme Court of Judicature Act (Cap 322),Motor sampan and bumboat colliding at Singapore river,Procedure for appeal,Extension of limitation period,Application of s 8 of Maritime Conventions Act 1911,Judge hearing further arguments,Tort,Civil Procedure,Prejudice to plaintiffs if limitation period not extended,Limitation of Actions,Circumstances of the case,Admiralty and Shipping,Whether 'vessels' under Maritime Conventions Act 1911,Defence of limitation,Defence of limitation under s 8 of Maritime Conventions Act 1911,Claim for damages on behalf of dependants and estate of deceased,Damages,Collision,Death,Appeals,Limitation,Conformity of Maritime Conventions Act 1911 with Brussels Convention 1910,Test to be applied,Collision between motor sampans on Singapore river,Negligence,Amendment,Injustice to plaintiffs,Negligence of solicitors in commencing action already time-barred
• Docket Number: Civil Appeals Nos 76 and 18 of 1989
• Citation: [1991] SGCA 16
• Court: Court of Appeal (Singapore)
• Published date: 19 September 2003

Cur Adv Vult

These are appeals against two decisions made under different interlocutory applications in the same action, viz Suit No 1399 of 1981. As they raised related issues of law on the same facts, we heard them one immediately after the other. We now give our judgment on both appeals.

In Suit No 1399 of 81, the plaintiffs are the personal representatives of Tay Kian Ho, deceased (TKH). The defendants are Seow Teck Ming and Lim Pin. The plaintiffs are claiming damages on behalf (a) of the dependants and (b) of the estate of TKH against the defendants arising from the death of TKH in a collision between a motor sampan of 79.11 tons, belonging to the second defendant and a motor sampan (bumboat) of 12.34 tons belonging to one of the plaintiffs. The collision took place at about 7.30am on 20 May 1978 at a stretch of the Singapore River in the vicinity of the Attorney General`s Chambers.

The writ was issued on 30 April 1981, just short of three years after the collision. The statement of claim was filed on 12 February 1982. By their defence filed on 11 March 1982, the defendants denied negligence and claimed that the collision was caused solely or contributed to by TKH who was then in control of the bumboat. Directions for the trial of the action were given on 21 August 1984. Notice of trial was given on 18 September 1984 and on 11 December 1987, a date of hearing was fixed for 4 August 1988. On 20 July 1988, the solicitors for the defendants applied to discharge themselves on the ground of inability to trace the defendants. The hearing of this application was fixed for 29 July 1988.

Defence of limitation

Instead of proceeding with the application to discharge themselves, the defendants` solicitors took out further directions on 26 July 1988 to amend the defence to add the defence of limitation based on s 8 of the Maritime Conventions Act 1911 (the MCA 1911) which, if applicable, would have barred the action upon the expiration of two years from the date of the collision. On 1 August 1988, the assistant registrar gave leave to the defendants to amend the defence. The amended defence was filed on 2 August 1988 and the reply was filed on 3 August 1988.

On 4 August 1988, the plaintiffs gave notice of appeal against the order of the assistant registrar. The appeal was heard on 15 March 1989 by Rajah J who dismissed the appeal. On 21 March 1989, the solicitors for the plaintiffs requested for further arguments. Rajah J, after hearing further arguments, changed his mind and allowed the appeal. Civil Appeal No 76 of 1989 is the defendants` appeal against the order. The manner in which the defendants` solicitors proceeded to file this appeal is a matter on which we will make some observations at the end of this judgment.

Immediately after the defendants were given leave to amend their defence to plead limitation, the plaintiffs` solicitors took out a notice of motion for an order to try the issue whether s 8 of the MCA 1911 applied to this action, and if it did, for an order that the limitation period be extended and the plaintiffs allowed to proceed with the action. This application was heard before Chao Hick Tin JC on 4 August 1988 and 11 October 1988. Judgment was given on 14 February 1989, before Rajah J heard the appeal against the assistant registrar`s de. His Honour held that s 8 of the MCA 1911 applied to the action. He also refused leave to extend time. Civil Appeal No 18 of 1989 is the plaintiffs` apagainst this decision.

Civil Appeal No 18 of 1989 - application of the MCA 1911

The MCA 1911 is an imperial legislation enacted by the United Kingdom Parliament. It came into force on 16 December 1911 and pursuant to s 9 thereof, its application was on 1 February 1913 extended to the Straits Settlements as part of His Majesty`s dominions. In his grounds of judgment, Chao Hick Tin JC held that the MCA 1911 was still part of the law of Singapore as it had not been repealed by any local legislation. Counsel for the plaintiffs has not argued against this finding. In our view, the finding was undoubtedly correct. Section 4 of the Contributory Negligence and Personal Injuries Act (Cap 54), which came into force on 1 March 1954, was enacted on the basis that the MCA 1911 was part of the law of Singapore then. When Singapore became independent, first as a constituent state of Malaysia on 16 September 1963 and then on 9 August 1965 as a sovereign republic, the MCA 1911 continued as part of the laws of Singapore under the relevant constitution: see Butterworth & Co (Publishers) Ltd & Ors v Ng Sui Nam [1985] 1 MLJ 196 , affirmed by the Court of Appeal ( [1987] 2 MLJ 5 ).

Scope of the MCA 1911

Counsel for the plaintiffs has raised two arguments on the scope of the MCA 1911. The first is that the MCA 1911 does not apply to common law negligence actions but only to admiralty actions in rem or in personam. He relies on the historical source of the MCA 1911 and also s 5 in support of this argument. Section 5 provides as follows:

Any enactment which confers on any court Admiralty jurisdiction in respect of damage shall have effect as though references to such damage included references to damages for loss of life or personal injury, and accordingly proceedings in respect of such damages may be brought in rem or in personam.

On this basis, counsel maintains that as the present action was brought as a common law action, it was not subject to the limitation period of two years as provided in s 8 of the MCA 1911 but to the ordinary limitation period of six years under the Limitation Act (Cap 10, 1970 Ed) (as it stood in 1981).

We are unable to accept this submission. We are of the view that the MCA 1911 applies to all actions whether brought as admiralty or common law actions for the reasons following. Firstly, the MCA 1911 makes no distinction between admiralty actions and common law actions. Section 9(3) thereof provides that it applies to all cases heard and determined in any court having jurisdiction to deal with the case and in whatever waters the damage or loss in question was caused. This action was brought on the basis that the High Court has jurisdiction. Secondly, if it were necessary to refer to the terms of the Brussels Convention 1910 (the Convention), which was an international agreement, pursuant to which the MCA 1911 was enacted, one would not find nor expect to find in them any distinction between the two forms of curial proceedings simply because they are peculiar to the English judicial system. Moreover, as art 1 of the Convention expressly refers to collisions between vessels `in whatever waters the collision takes place`, any municipal legislation giving effect to the Convention would be made applicable to such collisions. In the present case, it has not been argued that the tidal part of the Singapore River (where the collision occurred) is not part of the `waters` of Singapore. Thirdly, in The Vadne [1959] 2 Lloyd`s Rep 480, Lord Merriman P said that he had not the slightest doubt that the MCA 1911 would have been applicable even if the writ in that case had been issued in the Queen Bench`s Division.

The second point raised by counsel for the plaintiffs is that the MCA 1911 should be construed to apply only to collisions between sea-going vessels or between sea-going vessels and vessels of inland navigation, as that was the ambit of the Convention pursuant to which the MCA 1911 was enacted.

The Brussels Convention 1910 - collisions between vessels

Counsel has referred to the following articles of the Convention:

Article 1. Where a collision occurs between sea-going vessels or between sea-going vessels and vessels of inland navigation, the compensations due for damages caused to the vessels, or to any things or persons on board thereof, shall be settled in accordance with the following provisions, in whatever waters the collision takes place. (Emphasis added.)

Article 4. If two or more vessels are in fault the liability of each vessel is in proportion to the degree of the faults respectively committed. Provided that if, having regard to the circumstances, it is not possible to establish the degree of the respective faults, or if it appears that the faults are equal, the liability is apportioned equally.

...

In respect of damages caused by death or personal injuries, the vessels in fault are jointly as well as severally liable to third parties, without prejudice however to the right of the vessel which has paid a larger part than that which, in accordance with the provisions of the first paragraph of this Article, she ought ultimately to bear, to obtain a contribution from the other vessel or vessels in fault.

It is left to the law of each country to determine, as regards such right to obtain contribution, the meaning and effect of any contract or provision of law which limits the liability of the owners of a vessel towards persons on board.

Article 12. The provisions of this Convention shall be applied as regards all persons interested when all the vessels concerned in any action belong to States of the High Contracting Parties, and in any other cases for which the national laws provide.

Provided always that -

(1) As regards persons interested who belong to a non-contracting State, the application of the above provisions may be made by each of the contracting States conditional upon reciprocity.

(2) Where all the persons interested belong to the same State as the court trying the case, the provisions of the national law and not of the Convention are applicable.

We agree with counsel that the Convention was intended to apply only to collisions between (1) sea-going vessels and (2) between sea-going vessels and vessels of inland navigation. It was not intended to apply to collisions between vessels of inland navigation, which were matters within the exclusive jurisdiction of each state.

The MCA 1911

As we have stated earlier, the...