The "Ching Ho" And Another

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 04 September 2001
• Neutral Citation: [2001] SGHC 259
• Date: 04 September 2001
• Subject Matter: Writ,Ex parte application,Whether fatal to application,Non-disclosure of material facts,Civil Procedure,Grounds for extension,Whether good reason shown for extension,Originating processes,Whether balance of hardship per se good reason for extension,O 6 r 4 Rules of Court,Whether on-going negotiations with defendants relieves plaintiff of duty,Need for matters constituting good reason to exist,Plaintiffs had had reasonable opportunities to serve writ during its validity,Duty to serve promptly,Issue of writ against vessel,Extension of validity,Non-service of writ due to plaintiffs' alleged misinterpretation of document
• Docket Number: Admiralty In Rem No 150 of 2000
• Published date: 19 September 2003
• Defendant Counsel: Leong Kah Wah and Derek Tan (Joseph Tan Jude Benny)
• Court: High Court (Singapore)
• Plaintiff Counsel: Corina Song and Kok Tsung Hao (Allen & Gledhill)

Judgment:

1. This admiralty action against the vessels ‘Ching Ho’ and ‘Chun Ho’ is one of five similar actions filed against those vessels on 25 April 2000. The facts leading to the registrar’s appeal in this action which is now before me have led to similar appeals in the other four actions and it is common ground that the decision that I make here will be the decision for those other appeals as well.

2. When the writ herein was issued, four parties were named as plaintiffs . The first plaintiffs were described as ‘The owners of cargo and/or persons interested in and/or having rights to sue in relation to the cargo lately laden on board the ship or vessel ‘Ching Ho’. The second plaintiff was named as Rimbuan Hijau General Trading Sdn Bhd (‘RHG Bhd’), a Sarawak company. The third plaintiff was Grandsell Trading Pte Ltd, a Singapore company and the fourth plaintiff was Bordamur Gabon, an entity existing in Gabon, West Africa. It should be noted that each of the second, third and fourth plaintiffs is a separate entity and as plaintiffs they are several and not joint. Only one of them (it has not yet been established which) has the legal right to bring this action against the defendants. The solicitors who issued the writ on behalf of the plaintiffs were Messrs Allen & Gledhill (‘A&G’).

3. The defendants, the owners of the two vessels, are represented by Messrs Joseph Tan Jude Benny (‘JTJB’). JTJB were appointed to act for the defendants by The Britannia Steamship Insurance Association Ltd (‘Britannia’), a protection and indemnity association with which the defendants are entered. On behalf of the defendants, JTJB have accepted service of the writ in this action as issued by the third plaintiff. They have not accepted service of the writ as issued by the second and fourth defendants.

4. On 24 April 2001, A&G, having learnt that JTJB had no instructions to accept service of proceedings issued by the second and fourth plaintiffs, applied to court on behalf of these plaintiffs for an extension of the validity of the writ for a period of 12 months from 25 April 2001. This application was heard by the assistant registrar that same day and was granted. On 14 June, the defendants applied to set aside the renewal of the writ. Their application was heard by a senior assistant registrar on 27 July. It was not successful and the defendants therefore lodged the present appeal.

Background

5. In February 2000, the defendants’ vessel ‘Ching Ho’ loaded a cargo of sawmill accessories and logging spare parts at the port of Tanjong Manis, Sibu, Sarawak and then set sail for Libreville, Gabon. On route, the vessel met with very heavy weather and 25 containers of cargo were swept over board. Other cargo was damaged. The vessel arrived at the port of destination towards the end of March 2000.

6. The shippers of the cargo had taken out insurance for the voyage with QBE Insurance International Ltd. When the insurers were notified of the loss and possible damage, they appointed a Singapore company, Insight Marine Services Pte Ltd (‘Insight’) to investigate and deal with the cargo claims. The person in charge in Insight was one Dan Yeo Puay Song. The first thing he did was to instruct solicitors to issue writs against the ‘Ching Ho’ and her sister vessel ‘Chun Ho’ to protect against the possibility of a change of ownership. Since five bills of lading had been issued, five writs were taken out. In each writ, there were three or four plaintiffs, one of whom was described in a generic fashion, whilst the others were named specifically. The persons named as plaintiffs were involved with goods either as shippers or consignees.

7. Immediately following the issue of the writs, Insight, having ascertained that the vessels were entered with Britannia, wrote to Britannia’s local correspondents notifying them of the plaintiffs’ claim and requesting security for it. Mr Yeo told Britannia that Insight acted for the owners and insurers of the goods. He did not, however, notify them at that stage that the writs had been issued.

8. On 10 May 2000, Britannia informed Insight that the defendants were agreeable to providing security subject to agreement on the wording and the quantum. Britannia also asked for a letter of authority from Insight’s principals authorising Insight to act on their behalf. The next day, Insight sent Britannia a draft of the wording required for the letter of undertaking. This draft was addressed to ‘Owners of Cargo mentioned below’. Before the main body of the letter, particulars of the vessel, voyage, cargo and all five bills of lading were given. The first paragraph of the document began ‘In consideration of the owners and other persons entitled to sue in respect of the above-mentioned claims concerning the cargo referred to above (hereinafter together referred to as "the Cargo Owners") …’. The second paragraph contained an undertaking by Britannia to instruct solicitors to accept service of proceedings against the ‘Ching Ho’ within 14 days of being asked to do so.

9. The letter of authority asked for was forwarded under separate cover. It was issued and signed by four companies namely, I-PPON Trading Pte Ltd (‘I-PPON’), Grandsell Trading Pte Ltd (‘Grandsell’), Wimbush Limited (‘Wimbush’) and Pacific Barter Trade Limited (‘Pacific Barter’). At that time Insight had not received authority to act from any other cargo interest including the second and fourth plaintiffs.

10. Britannia responded by forwarding a draft of the letter of undertaking that it was prepared to provide. This draft was based on the draft provided by Insight. In its covering letter, Britannia pointed out that the quantum was slightly less than Insight had requested and that the only other real amendment it had made was to provide for English law and jurisdiction to govern the undertaking instead of Singapore law. There was one change in the draft which Britannia did not highlight and this was that instead of being addressed to ‘Owners of Cargo’ it was addressed as follows:

‘To – Insight Marine Services Pte Ltd acting on behalf of

I-PPON Trading Pte Ltd

Grandsell Trading Pte Ltd

Wimbush Limited

Pacific Barter Trade Limited

as owners of cargo mentioned below.’

On 16 June, Insight informed Britannia that the quantum and wording proposed by Britannia were acceptable and asked for the letter of undertaking to be forwarded as soon as possible. The original letter of undertaking was issued by Britannia the same day and sent to Insight who received it on 23 June 2000. The wording of the actual letter was identical to that of the draft which Britannia had sent Insight.

11. Following this, the claim made by the cargo interests (ie the various plaintiffs in the five actions) against their insurers was adjusted and settled by the insurers. On 18 November 2000, Insight notified Britannia of the settlement and, on behalf of the cargo insurers, forwarded claim documents to Britannia for their consideration. The total amount claimed was US$1,130,586.64. Among the documents forwarded was a letter signed by the fourth plaintiffs authorising the cargo insurers to use their name in legal proceedings for the recovery of the loss. Similar letters signed by the third plaintiff in Admiralty 151 of 2000, Shimmer International GE Ltd, and the fifth plaintiff in Admiralty 152 of 2000, Societe Forestiere Et Industrielle De Koulamdutou, were also forwarded. At that stage, there was still no authority from RHG Bhd, the second plaintiffs herein, who are also the second plaintiffs in Admiralty 152 of 2000.

12. Subsequently, Insight sent Britannia several letters asking it to forward a settlement proposal. On 3 February 2001, in one of these letters, Insight told Britannia that if no favourable response was received within the next seven days, it would have to recommend that its principals proceeded with legal action. On 7 February, Britannia replied to advise Insight that the defendants did not consider that they were responsible for the claim because the goods had been carried on deck. More than a month later, on 28 March, Insight asked Britannia to re-examine its case and then, in the absence of a reply, wrote again on 9 April to inform Britannia that suit time had been preserved and that writs had been issued in Singapore on 25 April 2000. A copy of one of the writs was enclosed. Insight asked Britannia to nominate lawyers in Singapore to accept service of the writ, pursuant to the undertaking since the writs were due to expire on 24 April 2001. This was the first time that Britannia had notice of the issue of the writs in the five actions.

13. Britannia then appointed JTJB to handle the matter for the defendants. On 12 April, JTJB wrote to A&G stating that under the letter of undertaking, Britannia was obliged to appoint solicitors to accept service of process commenced by I-PPON, Grandsell, Wimbush and Pacific Barter. They noted that these entities apart, the parties named in the writ had not been included in the Britannia letter and asked for copies of all the writs issued so that they would be in a position to advise Britannia whether to accept service or not. Copies of the writs were sent over by A&G the same day. At the same time, A&G asked JTJB to respond on the substantive issue of service by the close of the day. Subsequently, there was a telephone conversation in which JTJB informed A&G that in view of the intervening Easter weekend, they would not be able to respond with Britannia’s instructions until Tuesday, 17^th April or Wednesday, 18^th April.

14. By Wednesday, 18^th April, nothing had been heard. A&G therefore wrote to JTJB asking them to take instructions on amending the wording of the letter of undertaking so that it would include the names of all cargo interests (including the second and fourth plaintiffs) who had not been mentioned originally. On Friday, 20 April, JTJB informed A&G that it had been instructed to accept service of the...