The "Andres Bonifacio"

• Jurisdiction: Singapore
• Judge: Karthigesu J
• Judgment Date: 15 March 1991
• Neutral Citation: [1991] SGHC 44
• Docket Number: Admiralty in Rem Nos 254, 255 and 256 of 1989
• Date: 15 March 1991
• Published date: 19 September 2003
• Year: 1991
• Plaintiff Counsel: Richard Kuek (Gurbani & Co)
• Citation: [1991] SGHC 44
• Defendant Counsel: P Selvadurai (Rodyk & Davidson)
• Court: High Court (Singapore)
• Subject Matter: Words and Phrases,Application to set aside,Admiralty and Shipping,Arrest of ship to enforce claim for breach of charterparty,Beneficial ownership of ship in issue,Action in rem,Whether defendants liable in an action in personam,Beneficial ownership of arrested vessel,Arrest of ship,Admiralty jurisdiction,'Beneficially owned',High court,Improper invocation of admiralty jurisdiction,s 4(4) High Court (Admiralty Jurisdiction) Act (Cap 123),Whether sufficient for plaintiff to show good arguable case,Admiralty jurisdiction and arrest,Courts and Jurisdiction

On 3 June 1989, Far East Oil Tanker SA as the owners of the ship or vessel `Feoso Ambassador 2`, commenced Admiralty in Rem Suit Nos 254 of 1989 and 255 of 1989 against the owners of the ship or vessel `Andres Bonifacio` as the charterers of `Feoso Ambassador 2`. The former suit was in relation to a 7 voyage charterparty orally concluded in January 1986 at Manila and the latter in relation to an Intertankvoy 76 charterparty dated 30 April 1985. A third Admiralty in Rem Suit No 256 of 1989 was also commenced against the owners of the ship or vessel `Andres Bonifacio` on 3 June 1989 by the owners of the ship or vessel `Feoso Ambassador`. The third suit was in relation to the charter of the `Feoso Ambassador` pursuant to a charterparty dated at Manila on 23 June 1983.

The `Andres Bonifacio` was arrested in Admiralty in Rem No 254 of 1989 on 17 October 1989. No arrests were made in the other two in rem suits which were not served. She was released on 20 October 1989 on the defendants (the owners of the ship or vessel `Andres Bonifacio` who had entered a conditional appearance in all three in rem suits) providing bail bonds in the maximum sum of US$1,650,211.42 in respect of the In Rem Suit No 254 of 1989, the maximum sum of US$48,266.12 in the In Rem Suit No 255 of 1989 and the maximum sum of US$387,837.50 in the In Rem Suit No 256 of 1989.

On 2 November 1989 the defendants filed a summons-in-chambers in each of the three in rem suits claiming that the writ of summons issued on 3 June 1989 in that in rem suit and all subsequent steps and/or proceedings therein taken by the plaintiffs, including the service thereof, be set aside and that the bail bond furnished be cancelled or, in the event that the writ of summons is not set aside, the bail bond be reduced to such sum as the court may deem fit. The basis of these applications was that the defendants, as the beneficial owners of the `Andres Bonifacio`, were not the persons liable in personam to the plaintiffs in respect of the plaintiffs` claims either when the causes of action arose or on the dates the actions were brought by the plaintiffs, for the purposes of s 4(4) of the High Court (Admiralty Jurisdiction) Act (Cap 123) (the Act). There was an additional ground in respect of the In Rem Suit No 254 of 1989, namely, that the service of the writ including the execution/service of the warrant of arrest was bad in law in view of the praecipe for caveat against arrest filed on 11 September 1989.

Also on 2 November 1989 the defendants filed a motion in the In Rem Suit No 254 of 1989 claiming that the warrant of arrest and all subsequent proceedings be set aside on the grounds that, in view of the praecipe for caveat against arrest filed on 11 September 1989, the arrest of the `Andres Bonifacio` was wrongful and an abuse of the process of the court and further claiming that the plaintiffs pay to the defendants damages to be assessed by the registrar for the wrongful arrest and detention of the `Andres Bonifacio` from the date of arrest until the date of release.

Counsel for both parties had agreed and the court had directed that all affidavits be filed in the In Rem Suit No 254 of 1989 and that the three summonses-in-chambers and the motion be heard together in open court. At the hearing, both Mr Richard Kuek for the plaintiffs and Mr P Selvadurai for the defendants agreed that the main issue for the determination of the court was whether PNOC Oil Carrier Inc, the defendants, to whom I shall refer hereafter as `POCI`, were the beneficial owners of the `Andres Bonifacio` on the date these actions were brought, as on that question would depend whether or not the admiralty in rem jurisdiction of this court had been properly invoked pursuant to the provisions of s 4(4)(b) of the Act.

Counsel were also agreed on two subsidiary issues, namely, whether in view of the praecipe for caveat against arrest of the `Andres Bonifacio` filed on 11 September 1989, the arrest was wrongful and an abuse of the process of the court and whether the failure to disclose in the affidavit leading to the issue of the warrant of arrest of the `Andres Bonifacio`, the praecipe for caveat against arrest and the reference to arbitration of the disputes or differences arising from the charterparties in question were material non-disclosures which also amounted to an abuse of process of the court.

It is not disputed that the charterers of the `Feoso Ambassador 2` and the `Feoso Ambassador` under the charterparties in question were the Philippine National Oil Company (PNOC). The plaintiffs proceeded to arrest the `Andres Bonifacio` on the basis that PNOC were her beneficial owners at the time when these actions were brought, namely, 3 October 1989. In the affidavit leading to the arrest of the `Andres Bonifacio` filed in the In Rem Suit No 254 of 1989 on 17 October 1989, the deponent, the plaintiffs` counsel, said at para 5:

This action is brought by the plaintiffs pursuant to s 4 of the High Court (Admiralty Jurisdiction) Act (Cap 123). To the best of my knowledge and belief the defendants who are the persons liable in personam, were when the cause of action arose, the charterers of the `Feoso Ambassador 2` in connection with which this claim arose and were also, at the time of the issue of the writ, the beneficial owners of all the shares in the `Andres Bonifacio` against which this action is brought. The grounds of my belief is that according to the instructions I received from Ince & Co, the plaintiffs` Hong Kong solicitors, the defendants are the Philippine National Oil Company and the owners of the `Andres Bonifacio` are, as at the date of the time of the issue of the writ, the Philippine National Oil Company. There is now produced and shown to me exhibit marked `RK-1` being a true copy of a certification of the Philippine Coast Guard to the effect that the `Andres Bonifacio` is owned by the Philippine National Oil Company.

The exhibit referred to is dated 30 June 1989 and does certify that the `Andres Bonifacio` is owned by PNOC. It is admitted that the Philippine Coast Guard is the registration authority of merchant vessels in the Philippines.

The interpretation or construction of s 4(4) of the Act is now well settled by authority both in Singapore and in England. In ` The Permina 108 ` [1977] 1 MLJ 49 at p 50 Wee Chong Jin CJ delivering the judgment of the Court of Appeal said:

In our judgment, on the true construction of s 4(4) of the Act, a ship to be liable to arrest must be:

(a) The ship in connection with which the claim [being a claim under paras (d) to (q) of s 3(1)] made in the action arose, if at the time when the action is brought it is the property of the defendant to the action, the defendant being the person who would be liable on the claim in an action in personam and who was either the owner or charterer of or in possession or in control of, the ship, at the time when the cause of action arose; or

(b) Any other ship which, at the time when the action is brought, is the property of the person liable in personam and who, at the time when the cause of action arose, was either the owner or charterer of, or in possession or in control of, the ship in connection with which the claim arose.

In `The Pangkalan Susu/Permina 3001 ` [1977] 2 MLJ 129 at p 130 Wee Chong Jin CJ delivering the judgment of the Court of Appeal dealt with the meaning of the words `beneficially owned` in the context of the Act as follows:

The question is what do the words beneficially owned as respects all the shares `therein` mean in the context of the Act. These words are not defined in the Act. Apart from authority, we would construe them to refer only to such ownership of a ship as is vested in a person who has the right to sell, dispose of or alienate all the shares in that ship. Our construction would clearly cover the case of a ship owned by a person who, whether he is the legal owner or not, is in any case the equitable owner of all the shares therein. It would not, in our opinion, cover the case of a ship which is in the full possession and control of a person who is not also the equitable owner of all the shares therein. In our opinion, it would be a misuse of language to equate full possession and control of a ship with beneficial ownership as respects all the shares in a ship. The word `ownership` connotes title, legal or equitable whereas the expression `possession and control`, however full and complete is not related to title. Although a person with only full possession and control of a ship, such as a demise charterer, has the beneficial use of her, in our opinion he does not have the beneficial ownership as respects all the shares in the ship and the ship is not `beneficially owned as respects all the shares therein` by him within the meaning of s 4(4).

In The I Congreso del Partido [1977] 1 Lloyd`s Rep 536; [1978] 1 All ER 1169 Robert Goff J (as he then was) said in relation to s 3(4) of the Administration of Justice Act 1956 [UK], which is the equivalent provision to s 4(4) of the Act, at p 560:

I start with the statute, and the words with which I am particularly concerned, and which I have to construe in the context of the statute, are `beneficially owned as respects all the shares therein`. In my judgment, the natural and ordinary meaning of these words is that they refer only to such ownership as is vested in a person who, whether or not he is the legal owner of the vessel, is in any case the equitable owner ... then at p 561 he said:

... s 3(4) of the Act is concerned with title, the word `beneficial` being introduced to allow for the peculiar English institution of the trust.

and finally at p 563 (second column) he said:

As I read s 3(4), the intention of Parliament in adding the word `beneficially` before the word `owned` in s 3(4) was simply to take account of the institutions of the trust, thus ensuring that, if a

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