The "Asian Plutus"

• Judgment Date: 15 May 1990
• Docket Number: Admiralty in Rem No 106 of 1988
• Date: 15 May 1990
• Court: High Court (Singapore)

The “Asian Plutus”

[1990] SGHC 119

Yong Pung How J

Admiralty in Rem No 106 of 1988

High Court

Admiralty and Shipping–Admiralty jurisdiction and arrest–Stay of action proceedings–Governing law and foreign jurisdiction clause in bill of lading–Action commenced in breach of foreign jurisdiction clause–Whether action should be stayed in favour of foreign jurisdiction–Factors to consider in deciding if stay should be granted–Conflict of Laws–Choice of jurisdiction–Exclusive–Bill of lading providing for actions to be brought before foreign court–Whether action should be stayed in favour of foreign court–Factors to consider in deciding if stay should be granted

By a bill of lading issued in Osaka, Japan, the defendants acknowledged shipment on board their vessel Asian Plutus of four steel boxes containing a lathe machine for delivery to the plaintiffs in Singapore. Clause 3 of the bill of lading provided that “the contract evidenced by or contained in this bill of lading shall be governed by Japanese law … and any action against the carrier thereunder shall be brought before the Tokyo District Court in Japan”. The vessel arrived in Singapore and the machine was found to be seriously damaged. The plaintiffs commenced the present action in rem against the vessel. The defendants applied for the action to be stayed on the ground that the bill of lading had expressly provided for any action against the carrier to be brought in the Tokyo District Court in Japan. The Registrar stayed the plaintiffs' action on a number of conditions. The plaintiffs appealed against the Registrar's order.

Held, dismissing the plaintiffs' appeal:

(1) Where there was a foreign jurisdiction clause, effect should be given to it. The parties were deemed to have agreed to the jurisdiction of the foreign court with knowledge of how it worked and what it could or could not do. But a court has discretion to refuse an application for a stay if the plaintiffs succeed in showing that the facts and circumstances of the case are so exceptional as to amount to strong cause and to warrant such a refusal: at [11] and [19].

(2) A strong factor in favour of a stay was the fact that the contract of carriage was governed by Japanese law. While a Singapore court was not precluded from deciding questions of Japanese law, it was very much more satisfactory for the law of Japan to be decided by the court of that country: at [16].

(3) The fact that Singapore was the country of discharge was a neutral factor. The transportation of witnesses was an unavoidable problem which could arise in every case where a foreign jurisdiction clause applied. With improving means of travel between countries, this did not cause insuperable difficulties: at [18].

(4) If parties have chosen to submit their disputes to the exclusive jurisdiction of a foreign court, neither party could complain of the procedure of that court. In very exceptional cases, extremely serious defects in the procedure of a foreign court could justify a Singapore court taking another view of the matter. But this was clearly not the position in the present case: at [19] and [20].

(5) The existence of another action commenced by the plaintiffs against the defendants' agents in Singapore was not of sufficient relevance to affect the prima facie case for a stay. While the existence of more than one action in different jurisdictions would cause difficulties, the plaintiffs were precluded from using this circumstance to their advantage as it was brought about by them: at [24] and [25].

Abidin Daver, The [1984] AC 398; [1984] 1 Lloyd's Rep 339 (distd)

Adolf Warski, The [1976] 2 Lloyd's Rep 241 (refd)

Amerco Timbers v Chatsworth Timber Corp [1977-1978] SLR (R) 112; [1975-1977] SLR 258 (folld)

Atlantic Star, The [1974] AC 436; [1973] 2 Lloyd's Rep 197 (distd)

Athenee, The (1922) 11 Ll L Rep 6 (refd)

Austrian Lloyd Steamship Co v Gresham Life Assurance Society [1903] 1 KB 249 (refd)

Bernarty, The [1984] 2 Lloyd's Rep 244 (refd)

Cap Blanco, The [1913] P 130 (refd)

El Amria, The [1981] 2 Lloyd's Rep 119; [1981] Com LR 136 (distd)

Eleftheria, The [1970] P 94; [1969] 1 Lloyd's Rep 237 (folld)

Epar, The [1983-1984] SLR (R) 545; [1984-1985] SLR 409 (distd)

Fehmarn, The [1957] 1 WLR 815; [1957] 1 Lloyd's Rep 511 (refd)

Fehmarn, The [1958] 1 WLR 159; [1957] 2 Lloyd's Rep 551, CA (refd)

Kirchner & Co v Gruban [1909] 1 Ch 413 (refd)

Makefjell, The [1976] 2 Lloyd's Rep 29 (refd)

Maldive Importer, The [1983-1984] SLR (R) 250; [1982-1983] SLR 510 (distd)

Media, The (1931) 41 Ll L Rep 80 (refd)

Rockware Glass v MacShannon [1978] AC 795 (distd)

Sidi Bishr, The [1987] 1 Lloyd's Rep 42 (distd)

Spiliada, The [1987] 1 Lloyd's Rep 1 (distd)

Trendtex Trading Corp v Credit Suisse [1980] QB 629; [1980] 3 All ER 721 (refd)

Civil Law Act (Cap 43,1988Rev Ed)ss 5 (1),5 (3) (a)

High Court (Admiralty Jurisdiction) Act (Cap 123, 1985Rev Ed)s 3 (1) (g)

International Carriage of Goods by Sea Act 1957 (Japan)

N K Pillai and Liew Teck Huat (Niru & Co) for the plaintiffs

Loo Dip Seng (Ang & Partners) for the defendants.

Judgment reserved.

Yong Pung How J

1 By a bill of lading dated 2 May 1987 issued by them in Osaka, Japan, the defendants acknowledged shipment on board their vessel Asian Plutus at Kobe, Japan, of four steel boxes containing a lathe machine for carriage to and delivery at Singapore to the plaintiffs. Among the large number of clauses in the bill of lading were the following:

1. 2 Clause Paramount. As far as this bill of lading covers the carriage of the goods by water, this bill of lading shall have effect subject to the provisions of the International Carriage of Goods by Sea Act 1957 of Japan, unless it is adjudged that any other legislation of a nature similar to the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 compulsorily applies to this bill of lading, in which case it shall have effect subject to the provisions of such legislation, and the said Act or legislation (hereinafter called the Hague Rules legislation) shall be deemed to be incorporated herein. If any provision of this bill of lading is held to be repugnant to any extent to the Hague Rules legislation or any laws, statutes or regulations applicable to the contract evidenced by this bill of lading, such provision shall be null and void to such extent but no further.

2. 3 Governing Law and Jurisdiction. The contract evidenced by or contained in this bill of lading shall be governed by Japanese law except as may be otherwise provided for herein, and any action against the carrier thereunder shall be brought before the Tokyo District Court in Japan.

2 The vessel arrived in Singapore on 11 May 1987 and the cargo including the steel boxes containing the lathe machine was duly discharged from it into a warehouse to be unstuffed for delivery. The warehouse known as Keppel Block 37 belonged to the Port of Singapore Authority, and was leased to the carrier's agents, Integrated Agency Pte Ltd, and operated by them. Later, while the boxes were still in the possession of the carrier's agents and were being unstuffed, the machine was found to be seriously damaged.

3 After a lapse of almost one year, the plaintiffs commenced an action in rem against the vessel. The bill of lading showed that the carrier was Interasia Lines Ltd of Japan, and the shipper Yamazen Co Ltd of Osaka, Japan. An exhibit to one of the plaintiffs' affidavits disclosed that Lloyd's Register of Ships (1985-1986) showed the Port of Registry of the vessel as Panama, and Lloyd's List of Shipowners (1983-1984) showed the owners as Fairwind Navigation SA with its principal place of business in Panama City, Republic of Panama. In the writ which was filed on 9 May 1988, the plaintiffs were described as the owners of cargo lately laden on board the ship or vessel Asian Plutus, and the defendants as the owners of and other persons interested in the vessel. The writ carried the following indorsement:

The plaintiffs as the owners of cargo lately laden on board the defendants' ship or vessel 'Asian Plutus' of the Port of Panama, and/or as holders and/or indorsees of the bill of lading whereunder the said cargo was shipped, claim damages from the defendants for loss of and/or damage to the said cargo during the voyage from Kobe, Japan to Singapore in or about the month of May 1987, sustained by reason of the defendants' breach of contract and/or duty and/or negligence in and about the carriage thereof.

4 On 27 May 1989, the defendants applied to the court for the plaintiffs' action to be stayed, on the ground that the contract of carriage upon which the plaintiffs' claim was brought expressly provided for any action against the carrier under the contract to be brought in the Tokyo District Court in Japan. On 15 September 1989, the Registrar ordered that the plaintiffs' action be stayed on condition (a) that the defendants provide security acceptable to all parties for the plaintiffs' action to be brought in the Tokyo District Court in Japan; (b) that the defendants refrain from raising time bar as a defence in the action in the Tokyo District Court, if the plaintiffs commence the action there within...