The Alexandrea

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Belinda Ang Saw Ean JC
• Judgment Date: 23 April 2002
• Neutral Citation: [2002] SGHC 82
• Citation: [2002] SGHC 82
• Defendant Counsel: LD Dason (Steven Lee, Dason & Partners)
• Plaintiff Counsel: Sin Lye Kuen and Candice Kwok (Khattar Wong & Partners)
• Published date: 19 September 2003
• Docket Number: Admiralty in Rem No 600090 of 2002
• Date: 23 April 2002
• Subject Matter: Whether court has admiralty jurisdiction,Admiralty jurisdiction and arrest,Conditions which claimant has to satisfy before action in rem can be brought against vessel,ss 3(1)(l) & 4(4) High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Ed),Words and Phrases,Arrest of vessel,Whether plaintiffs' claim falls within scope of High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Ed),Admiralty and Shipping,'In respect of','A ship',Action in rem

Judgment

GROUNDS OF DECISION

1. This was an appeal by the Defendants against the decision of the Assistant Registrar dismissing the Defendants’ application to set aside the arrest of "ALEXANDREA". At the conclusion of the hearing, Defendants’ Counsel orally applied to set aside the Writ of Summons as well. I granted leave to the Defendants to amend their application and Notice of Appeal.

2. The Plaintiffs, Sumitomo Corporation (Singapore) Pte Ltd, were a party in the chain of contracts for the supply of marine fuel oil ("MFO"). The Plaintiffs’ immediate buyer was Sumitomo Corporation Europe PLC ("SCEP"). Pursuant to a contract made between the Plaintiffs and Meridian Petroleum and Bunkering Pte Ltd ("Meridian"), on 21 September 2001 Meridian purportedly supplied MFO to "FRONT MELODY" at Singapore.

3. The Plaintiffs alleged that the MFO stemmed from the "ALEXANDREA", a bunker tanker owned by J S Pink Pte Ltd, was contaminated in that it contained Di-methyl Ester of Hexabedioic acid, a chemical compound used in paint strippers. The "FRONT MELODY" suffered loss or damage as a result of using the contaminated bunkers which affected the performance of the ship’s machinery. Owners of "FRONT MELODY" gave notice of their loss or damage to SCEP who in turn is holding the Plaintiffs answerable.

4. On 22 March 2002, the Plaintiffs commenced an in rem action against the "ALEXANDREA" in negligence, alleging a failure on the part of the Defendants to ensure that MFO stemming from "ALEXANDREA" was free of contaminants. In the event of liability to SCEP, they in addition, sought an order to be indemnified against any adverse financial consequences they might suffer as a result of the "FRONT MELODY" using contaminated marine fuel.

5. The "ALEXANDREA" was arrested on 22 March 2002.

The Relevant Statutory Provisions

6. The High Court (Admiralty Jurisdiction) Act (Cap 123) ("the Act") provides:

"3. (1) The admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims:

…

(l) any claim in respect of goods or materials supplied to a ship for her operation or maintenance;

…

4. (4) In the case of any such claim as mentioned in section 3(1)(d) to (q), being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of the action arose, the owner or charterer of, or in possession or in control of, the ship, the admiralty jurisdiction of the High Court may (whether the claim gives rise to a maritime lien on the ship or not) be involved by an action in rem against-

(a) that ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person; or

(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid."

The Defendants’ application and appeal - basis and opposition

7. The Defendants’ application for the warrant of arrest to be set aside and for damages for wrongful arrest was filed on 26 March 2002. Having failed before the Assistant Registrar, the Defendants’ filed Notice to Appeal on 1 April 2002.

8. The Defendants challenged the validity of the arrest of "ALXANDREA" on two grounds. The first is that the admiralty jurisdiction under s. 4(4) of Act had been improperly invoked. Secondly, that there was material non-disclosure in the Plaintiffs’ affidavit leading the warrant of arrest. There was no mention there that the Plaintiffs’ contract to supply MFO to the "FRONT MELODY" was with Meridian and not with the Defendants.

9. Before me, Counsel for the Defendants, Mr. Dason, proceeded on the basis of a concession that the Plaintiffs’ claim framed in negligence fell within the scope of s 3(1)(l) of the Act.

10. For the reasons explained below, Counsel’s concession is misplaced. I accordingly rejected it. Selvam J in The "Ohm Marina" [1992] 2 SLR 623 at 630 stated:

"The admiralty jurisdiction of the High Court of Singapore is essentially statutory, namely the jurisdiction conferred on the High Court by the High Court (Admiralty Jurisdiction) Act (cap 123) ("the Act"). The Act lays down the conditions, which must be satisfied before a claimant avails himself of the right to institute in rem proceedings against a ship and the powerful right to effect an arrest of the ship. As the in rem jurisdiction is created and limited by statute, the parties cannot confer such jurisdiction by agreement or waiver."

11. That is also the case, when a concession has been wrongly given. The court would clearly be acting without jurisdiction if the Plaintiffs’ claim did not satisfy the basic condition for jurisdiction.

12. Plaintiffs’ Counsel, Mr. Sin, contended that the Plaintiffs’ claim fell squarely within s 3(1)(l) of the Act. It was common ground that the bunkers were supplied to the "FRONT MELODY" for her operation or maintenance. It was also common ground that the beneficial owners of "ALEXANDREA", both when the cause of action arose and at the date of the issue of the Writ of Summons was J S Pink Fuel Pte Ltd.

13. On that basis, he submitted that the Plaintiffs had established jurisdiction in rem and were entitled to arrest the "ALEXANDREA".

14. Mr Sin essentially rested the Plaintiffs’ opposition to Defendants’ application on the interpretation of s 3(1)(l) and s 4(4) of the Act. He urged the Court to construe widely s 3(1)(l) and s 4(4) of the Act.

15. Mr. Sin argued that there was no material non-disclosure of the matter alleged as it was made known at the outset of the arrest that the claim against the "ALEXANDREA" was framed in negligence.

Jurisdiction and Onus of Proof

16. In the appeal, the question relating to the admiralty jurisdiction in rem, which I was concerned with, was whether there is jurisdiction in rem against the "ALEXANDREA" in respect of the Plaintiffs’ claim framed in negligence for damages.

17. Having decided that question in favour of the Defendants, there was no need for me to consider the ancillary question which was whether the Plaintiffs could include in their claim an order to be indemnified against their possible liability to SCEP.

(1) Whether there is jurisdiction in rem against the "ALEXANDREA"

18. When faced with an application of this nature, it is for the arresting party to show on a balance of probabilities that the action is within the in rem jurisdiction of the Court.

19. In order to be entitled to bring an action in rem against the "ALEXANDREA", the Plaintiffs must establish:

(i) that the claim is within the scope of s 3(1)(l) of the Act;

(ii) that the claim arises in connection with a ship;

(iii) the 2-stage test in s 4(4) of the Act - that is to say, satisfy the in personam and in rem test.

(See: Selvam J in The "Opal 3" [1992] 2 SLR 585 at 590)

(i) Section 3 (1) (l) - "any claim in respect of goods or materials supplied to a ship for her operation or maintenance"

20. The Plaintiffs’ submission is that Court has jurisdiction to hear and determine this claim under s. 3(1)(l) of the Act.

21. Mr. Sin contended that the words "in respect of" in par. (l) should be substituted for the words "arising out of". In The "Indriani" [1996] 1 SLR 305, the words "arising out of" were interpreted widely to mean "connected with". On this wide interpretation, par. (l) would cover the Plaintiffs’ claim in tort even though there was no contractual relationship between the Plaintiffs and the owners of "ALEXANDREA".

22. Such an approach, he stated, would be in keeping with several decisions of the Court of Appeal (such as The "Trade Fair" [1994] 3 SLR 827"; Alexander G Tsavliris & Sons Maritime Co v Keppel Corp Ltd [1995] 2 SLR 113) where some provisions of s. 3(1) of the Act were given a wide and liberal construction. Mr. Sin argued for a wider admiralty jurisdiction.

23. The Court of Appeal in The "Trade Fair" construed the word ‘for’ in s. 3(1)(f) of the Act as bearing the wider meaning of ‘arising out of’. Mr. Sin referred to the speech of Lord Brandon in The "Antonis P Lemos" [1985] 1 Lloyd’s Rep 283 which was relied on by Karthigesu JA in The "Trade Fair". Karthigesu JA at p 832 of the report observed:

"Lord Brandon in delivering the main speech in the House of Lords remarked (see p 289) in relation to s 20(2) of the 1981 Act that he ‘never understood’ why the expression ‘arising out of’ appearing in the convention was not used for all claims listed under s 20(2) but only to three of them (as is the case under s 3(1) of the Act)…..In any case, Lord Brandon said that in compliance with the convention the words ‘arising out of’ should apply to all the maritime claims and that these...