The "Damavand"

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 31 May 1993
• Neutral Citation: [1993] SGCA 44
• Date: 31 May 1993
• Subject Matter: Amendment of indorsement on a writ,Disclosure of material facts,Test for material non-disclosure,O 20 r 1 Rules of the Supreme Court 1970,Fresh admiralty action in rem commenced,Civil Procedure,Admiralty and Shipping,Action in rem,Sister ship arrested in second action,Claim deleted from writ after arrest of vessel,Rules of the Supreme Court 1970 O 20 r 1,Writ,Time for amendment,Arrest of vessel,Whether admiralty jurisdiction can be invoked by second action in rem,Whether 'single ship arrest rule' infringed,Want of jurisdiction,s 4(4) High Court (Admiralty Jurisdiction) Act (Cap 123),Admiralty jurisdiction and arrest
• Docket Number: Civil Appeal No 134 of 1992
• Published date: 19 September 2003
• Defendant Counsel: Steven Chong and Douglas Choo (Drew & Napier)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: M Namazie and Tan Teng Muan (Mallal & Namazie)

Cur Adv Vult

This is an appeal against the decision of Karthigesu J in which he dismissed an appeal from the decision of the senior assistant registrar dismissing the application by the appellants to set aside the writ and the warrant of arrest of their ship, the Damavand. The appeal raises novel points of law.

The material facts which gave rise to the appeal are these. The appellants are the National Iranian Tanker Company, the owners of the ship, the Damavand. They also owned other ships, including the Minab 4, Alamoot, Khark 2, Shir Kooh, Taftan and Bisoton. The respondents, International Paint Ltd, on 26 January 1989, entered into a contract with the appellants for the supply of marine paint products to the latter`s fleet. The goods and materials were supplied or sold both before and after the conclusion of the contract, namely, during the period from 1988 to 1989, and were supplied to the Alamoot, Khark 2, Shir Kooh, Taftan and Bisoton at various ports, including Singapore. The appellants failed to pay the respondents for the goods and materials supplied. Accordingly, on 24 October 1989, the respondents commenced an admiralty action in rem No 487 of 1989 against the Minab 4 (`the Minab 4 action`) and the claim as endorsed on the writ was `for goods and materials supplied to the ships or vessels Alamoot, Bisoton, Khark 2, Shir Kooh and Taftan all of the port of Bandar Abbas at various ports including the port of Singapore for the period from 1988 to 1989 at the request of the defendants, their servants or agents`. The Minab 4 was arrested and the writ was served on her on the same day. As we have described, the writ of summons was generally endorsed and the particulars of the goods and materials supplied and of the amounts claimed in respect of the supplies to each of the vessels named were not stated therein. The particulars were also not stated in the affidavit leading to the issue of the warrant of arrest of the Minab 4.

On 25 October 1989, the respondents amended the writ in the Minab 4 action by striking out the reference to the Bisoton in the endorsement pursuant to O 20 r 1 of the Rules of Supreme Court, and immediately thereafter on the same day commenced a separate admiralty action in rem against the ship, Damavand, (`the Damavand action`) and the claim endorsed on the writ was `for goods and materials supplied to the ship or vessel, Bisoton, of the port of Bandar Abbas at a port in Portugal in or about the month of April 1989 to June 1989 at the request of the defendants, their servants or agents`. On the same day, the respondents arrested the Damavand which was also in port and the writ was served on her. Similarly, in the Damavand action no particulars of the goods and materials supplied to Bisoton and of the amounts claimed were stated in the endorsement on the writ or in the affidavit leading to the issue of the warrant of arrest. On 1 November 1989, the Damavand was released after the appellants had made payment of o353,737.29 which was the sum stated in the respondents` statement of account of 10 July 1989. As it transpired, the sum paid was sufficient to discharge all the moneys owed to the respondents in respect of supplies to the Bisoton. Accordingly, the respondents did not proceed to deliver a statement of claim in the Damavand action. But in the Minab 4 action the statement of claim was delivered on 1 December 1989 and was restricted to the claims for goods and materials supplied to the Alamoot, Khark 2, Shir Kooh and Taftan of which particulars were given.

Prior to that, on 14 November 1989, the appellants took out an application to set aside the writ and the warrant of arrest in the Damavand action on the grounds that the court lacked jurisdiction and that the action and/or the arrest was frivolous and vexatious and was an abuse of the process of the court. The application was dismissed by the senior assistant registrar and the appellants appealed. The appeal was heard before Karthigesu J. The learned judge in a reserved judgment, reported in [1992] 2 SLR 1058 , dismissed the appeal with costs. Against his decision this appeal has been brought.

Before us, as before the learned judge, two main arguments have been raised: the first pertaining to want of jurisdiction in the action in rem against the Damavand and the second to non-disclosure of material facts in the affidavit leading to the issue of the warrant of arrest of the Damavand. It was argued on behalf of the appellants that the admiralty jurisdiction of the court had been invoked when the Minab 4 action was instituted on 24 October 1989 and the writ of summons at the material time included, among others, a claim for goods and materials supplied to the Bisoton (`the Bisoton claim`). Thenceforth, it was no longer possible to invoke the admiralty jurisdiction again by an action in rem against the Damavand making the same claim, ie the Bisoton claim, notwithstanding that that claim had been deleted in the Minab 4 action before the Damavand action was commenced. The learned judge rejected this argument and held that a plaintiff could amend his indorsement of claim by removing therefrom a part of his claim, so long as the part was severable and could survive as a separate cause of action. He therefore held that there was no want of jurisdiction. He further held that the respondents had not abused the process of the court since they made the amendment in the Minab 4 action before the time limited for an appearance had expired. On the second issue, it was argued on behalf of the appellants that the prior arrest of the Minab 4 and the inclusion of the Bisoton claim in the Minab 4 action, though the latter was subsequently deleted, were material facts and these were not disclosed in the affidavit leading to the issue of the warrant of arrest. The learned judge, however, held that these were not material facts and accordingly the failure to mention these in the affidavit leading to the issue of the warrant of arrest of the Damavand did not constitute non-disclosure of a material fact.

We consider first the argument on the want of jurisdiction which indirectly turns on the construction of s 4(4) of the High Court (Admiralty Jurisdiction) Act (Cap 123). The provision of this subsection is as follows:

(4) (4) In the case of any such claim as is 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 Court may (whether the claim gives rise to a maritime lien on the ship or not) be invoked 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 construction of this provision has been the subject of litigation in a number of cases and it is established law that the admiralty jurisdiction in rem may be invoked against either the offending ship, ie the ship in connection with which the claim arose, or against any other ship in the same ownership, but not against both. This is commonly called the `single ship arrest rule`. This rule was laid down in `The Banco`; Monte Ulia (Owners) v Banco and Ors (Owners) [1971] P 137 an English Court of Appeal decision on s 3(4) of the Administration of Justice Act 1956 which is the English equivalent of s 4(4) of our Act. In that case, the plaintiffs` vessel, the Monte Ulia, collided with a jetty in the Thames whilst taking emergency action to avoid the defendants` vessel, the Banco, owing to alleged negligent navigation of the latter. The collision caused damage to the plaintiffs` vessel and to many other parties who then claimed against the plaintiffs. The plaintiffs brought an admiralty action in rem against the defendants and the writ was served on the Banco and six sister ships and they were arrested. The defendants applied to set aside the service of the writ on the six sister ships and to discharge the warrant of arrest of those ships. Lane J allowed the application and held that s 3(4) of the Administration of Justice Act gave jurisdiction only to arrest either the ship concerned with the claim, ie the Banco, or any other ship in the same ownership, and not both. Her decision was affirmed on appeal. Lord Denning MR in his judgment said, at p 152:

The important word in that subsection is the word `or.` It is used to express an alternative as in the phrase `one or the other.` It means that the admiralty jurisdiction in rem may be invoked either against the offending ship or against any other ship in the same ownership, but not against both. This is the natural meaning of the word `or` in this context.

Later he said, at p 153:

I would add that the word `ship` in the phrase `any other ship,` means `ship` and not `ships.` Although the Interpretation Act 1889, says that words in the singular include the plural, that does not apply when the contrary intention appears. The contrary intention does not appear here. The jurisdiction may be invoked against either the offending ship or any other ship in the same ownership, but not more than one.

The decision in The Banco [1971] P 137 was followed by this court in `Brunei 602`, Owners of Cargo Aboard MV v MV Hai Hin 28, Owners of, & Anor [1984] 1 MLJ 227 In that case, the cargo consisting of 390 pieces of coated pipes was loaded on board a dumb barge Brunei 602 towed by the tug Hai Hin 28 for carriage from Singapore to Indonesia. On the way the cargo fell into the sea off the coast of Kalimantan and was totally lost. The plaintiffs took out a writ against the first defendant as the owner of the tug Hai Hin 28 and the second defendant as owner of the...