The "Epar"

• Jurisdiction: Singapore
• Judge: T Kulasekaram J
• Judgment Date: 13 June 1984
• Neutral Citation: [1984] SGHC 16
• Docket Number: Motion in Admiralty Suit No 158 of 1980
• Date: 13 June 1984
• Published date: 19 September 2003
• Year: 1984
• Plaintiff Counsel: AB Reddy (Niru & Co)
• Citation: [1984] SGHC 16
• Defendant Counsel: V Ramayah (Wee & Ramayah)
• Court: High Court (Singapore)
• Subject Matter: Stay of proceedings,Claim for damage to cargo,Court's discretion,ss 2 & 3, arts I, III, IV & X of Sch Carriage of Goods by Sea Act 1972,Admiralty and Shipping,Civil Procedure,Choice of forum clause in bill of lading,Hague-visby rules,Effect of exclusive choice of jurisdiction clause,Dispute as to convenient forum,Bills of lading

By a contract of carriage contained in three bills of lading numbered BEL45, 46 and 47 signed by and on behalf of the defendants and all dated 27 June 1978 the defendants contracted to carry on board their vessel `Epar` 349 pallets of oil drilling muds duly delivered to the defendants in good order and condition at Singapore from the said port to Belawan, Indonesia.

The plaintiffs allege the defendants, their servants or agents negligently and/or in breach of the said contract and/or in breach of their duty as bailees delivered 53 pallets of the said cargo damaged and claim damages for the damage and loss done to their said goods during the said voyage.

The writ in this action was issued on 24 March 1980 served on the defendants on 27 September 1980 and unconditional appearance to the action. was entered by the defendants on 30 September 1980. The plaintiffs filed their statement of claim on 21 April 1981.

By a motion on 29 April 1981 the defendants applied for the following orders:

(1) that all further proceedings herein be stayed on the grounds that Indonesia is the more convenient forum and that the plaintiffs have agreed to refer and submit all disputes arising out of or in connection with the said agreement (in respect of which matters this action is brought) for determination to the court (Pengadilan Negeri) of Djakarta;

(2) that in default this action be dismissed out of this honourable court;

(3) that the plaintiffs do pay the defendants the cost of this action.

The bills of lading contained, inter alia, the following clauses which are relevant for considering the defendants` motion here:

9 ... if the value has not been declared in the Bill of Lading the Carrier is not bound to refund an amount exceeding £100 per package.

(16) Law applicable to this B/L. The B/L shall be governed by Indonesian Law, observant of the stipulations, laid down herein. The contents of this B/L must be considered as cancelled in so far as these contents are contrary to the stipulations of s 470 of the Commercial Code of Indonesia.

(17) Claims. In the event of delivery from warehouse, claims are to be lodged in writing not later than 3 (three) days after the last day of discharge (excluding Sundays and holidays). In case of delivery alongside the vessels or by ships, boats, claims are to be lodged at the time of discharge.

Any claim for loss, damage or short delivery or otherwise, arising out of this B/L, shall be dealt with, at the option of Pelayaran Nasional Indonesia in the court (Pengadilan Negeri) of Djakarta, to the exclusion of proceedings in any other court.

(18) Bills of Lading issued in the States of Malaya and the Republic of Singapore. The following clause will apply to Bills of Lading issued in the States of Malaya and the Republic of Singapore.

This Bill of Lading is to have effect subject to the provisions of the rules contained in the Sch to the Carriage of Goods by Sea Ordinance 1927, herein -

Provided that

a) If any clause covenant or agreement herein in part contravenes the Rules and in other parts is capable of being construed so as not to contravene and is permissible under the, Rules, such last mentioned part shall be deemed to be included in the agreement between the carrier and the shipper and that

b) Nothing contained in this Bill of Lading shall deprive the carriers of the right to claim the full benefit of all limitations of and exceptions from liability conferred on hire and/or the ship by the Carriage of Goods by Sea Ordinance 1927, the Rules, or otherwise under any law for the time.

The defendants in support of their motion assert by the terms of the contract of carriage which are embodied in the bills of lading and in particular cl 17 thereof which has already been set out above, the parties have agreed that any claim for loss, damage or short delivery or otherwise arising out of these bills of lading shall be dealt with at the option of Pelayaran Nasional Indonesia (Pelni), the owners of the vessel the defendants, in the court (Pengadilan Negeri) of Djakarta to the exclusion of proceedings in any other court. The defendants say the court in Singapore ought to give effect to this choice of forum clause by granting the stay.

The defendants further contend the court of Djakarta, Indonesia, is the most appropriate and convenient forum for the resolution of the disputes between the parties in all the circumstances.

The plaintiffs dispute both these contentions of the defendant. The exclusive choice of jurisdiction clause should be treated as inoperative or of no effect here having regard to the House of Lords decision in The Morviken (1983)1 Lloyd`s Rep 1. They also say the court in Singapore is the most appropriate forum and not the court in Djakarta.

It is, however, not in dispute that under s 3(1)(g) of the High Court (Admiralty Jurisdiction) Act which is in the following terms:

The Admiralty Jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims:-

(g) any claim for loss of or damage to goods carried in a ship; this court has jurisdiction to entertain the claim of the plaintiffs against the defendants.

Let me deal with the first issue. To answer this question we must consider the Carriage of Goods by Sea Act 1972 by which Singapore ratified the Brussels Protocol of 1968 amending the Hague Rules, commonly known as the Hague-Visby Rules which are scheduled to the 1972 Act - as did the...