The "Arktis Fighter"

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 04 June 2001
• Neutral Citation: [2001] SGHC 124
• Citation: [2001] SGHC 124
• Defendant Counsel: Navinder Singh (Joseph Tan Jude Benny Anne Choo)
• Published date: 07 November 2003
• Plaintiff Counsel: Belinda Ang SC and Chan Leng Sun (Ang & Partners)
• Date: 04 June 2001
• Docket Number: Admiralty in Rem No 600223 of 2001
• Court: High Court (Singapore)
• Subject Matter: Form of security,Whether ex parte application for inspection of vessel and discovery appropriate,Amount of security payable,Release of vessel in exchange for security,Arrest of vessel,Admiralty jurisdiction and arrest,Admiralty and Shipping

: The plaintiffs are claiming to be persons who have an interest in some steel plate cargo on board the Arktis Fighter. They sued the defendant owners of the vessel for damage to the cargo consisting of about 1,100mts of steel plates (with nickel content). The vessel was arrested by the plaintiffs on 23 May 2001 and on 25 May 2001 the plaintiffs obtained orders from the High Court enabling them to inspect the vessel and gain access to various documents with liberty to make copies of them.

The defendants applied before me to set aside or, alternatively, vary the orders of court of 25 May 2001, and also for an order to release the vessel. The defendants were not present or represented at the ex parte hearing on 25 May but were represented by Mr Navinder Singh in the present application.

Mr Navinder submitted that the orders of 25 May 2001 ought not to have been made without notice. In reply, Mr Chan, counsel for the plaintiffs, submitted that the orders were properly made under O 70 r 28 and O 29 r 2 (inspection of vessel and detention or preservation of property respectively). The orders of 25 May 2001 were, in my view, within the purview of these rules. However, it seems wrong to me that the application was made on an ex parte basis. If there are reasons to believe that critical evidence may vanish or diminish in quality unless a preservation order is made, the proper course was to seek an interim injunction pending a full hearing of the application. Ex parte applications ought to be made only in cases where the rules so provide or on exceptional basis. In this case, I see no reason why notice of the application was not served on the defendants. I am mindful that a similar application in The Mare del Nord [1990] 1 Lloyd`s Rep 40 was made ex parte; but in that case the facts show that the defendants were given notice of the intended application and the affidavits were served on them.

In a similar situation in the case of The Cienvik [1996] 2 Lloyd`s Rep 395, Clarke J had this to say:

It is difficult to envisage circumstances in which it would be appropriate for such an order to be made otherwise than on reasonable notice. If there was a reasonable fear that a defendant or proposed defendant might do some harmful act before an inspection or survey could be carried out, it might be that the proper course would be to seek an ex-parte injunction restraining the doing of such an act pending an application for an order for inspection or survey on notice.

On my part, I am more inclined to the position adopted in the Cienvik case. In the Mare del Nord itself Sheen J expressed the view that the plaintiff must first show that he has a good arguable case on the merits, and secondly, that the exercise permitted under the order of court will assist the judge at trial. It seems to me, therefore, that in either case, the presence of the defendant`s counsel will assist the court in forming a balanced view. This is all the more so when one bears in mind that at this stage the court is not putting the plaintiff`s case on trial. In the present case, the question of whether the plaintiffs had a good arguable case did not appear to have been raised (mainly because the defendants were not notified and therefore not represented) at the application before the judge on 25 May 2001. When counsel appeared before me, the fact that the plaintiffs` cargo was damaged was not in dispute, but Mr Navinder submitted that the defendants have a strong defence based on `perils of the sea` in that the Arktis Fighter was caught in a severe tropical storm in mid voyage. This assertion was challenged by Mr Chan, and it is obvious that that will be a major contention at trial.

Part of the orders of 25 May 2001 is spent. The inspection by the surveyors, for example, had already been carried out, and Mr Chan informs me that the plaintiffs are unlikely to board the vessel again. The documents specified in the orders of court of 25 May 2001 were handed up to the plaintiffs but have since been released to the defendants` solicitors on their undertaking not to dispose of them. I am aware of the shortness of time in which the plaintiffs had to act, and given the circumstances, I am of the view that in that respect they had not...