The "Kapitan Temkin"

• Jurisdiction: Singapore
• Judgment Date: 31 May 1998
• Date: 31 May 1998
• Docket Number: Admiralty in Rem No 390 of 1996
• Court: High Court (Singapore)

The “Kapitan Temkin”

[1998] SGHC 427

G P Selvam J

Admiralty in Rem No 390 of 1996 (Registrar's Appeal 157 of 1997)

High Court

Admiralty and Shipping–Admiralty jurisdiction and arrest–Action in rem–Ownership of vessels–Meaning of beneficial ownership for purpose of ascertaining jurisdiction–Whether company was beneficial owner of the ship–Relevance of Lloyd's Register of Shipping and certificate of registration in determining beneficial ownership–Section 4 High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed)–Conflict of Laws–Jurisdiction–Admissibility of evidence to determine jurisdiction–Whether lex fori to apply–Whether statement in certificate of registration as to conclusiveness of evidence to have application in Singapore

By an admiralty writ in rem against the “Kapitan Temkin” (“the ship”), the plaintiff charterer claimed for damages for breach of charterparty. The charterparty was made between the plaintiff and Black Sea Shipping Co (“Blasco”) of Odessa, Ukraine as owners. An application was filed by Blasco seeking dismissal of the action on the ground that the court had no jurisdiction over the defendants in respect of the subject matter of the claim. It was alleged that the Republic of Ukraine and, not Blasco, was the beneficial owner of the ship. To support its claim, Blasco relied on a certificate issued by the Odessa, Ukraine port office stating, inter alia, that “according to art 30 of the Merchant Shipping Code of the USSR this certificate is to be considered as final and complete evidence of the right of property of USSR of the ship Kapitan Temkin”. The Republic of Ukraine did not file any affidavit nor did it intervene to contest the court's jurisdiction. In the charterparty the registered owners were stated as “Black Sea Shipping Co, Odessa”. Lloyd's register of ships also showed Blasco as the owner. The registrar granted the defendant's application. The plaintiff appealed.

Held, allowing the appeal:

(1) To establish beneficial ownership for the purposes of establishing jurisdiction, entry in the Lloyd's Register of Shipping would be a good starting point. In addition, the certificate of registration, which had the function of proclaiming the nationality and ownership of the ship would be an important documentary evidence. Even though as a general rule the entry regarding ownership in the ship registry is not conclusive evidence of who the beneficial owners of a ship are for the purpose of s 4 of the High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed), in most cases it would be so. There must be clear evidence to look beyond the register and the certificate. The evidence showed that the owner of the ship was Blasco: at [7], [10] to [14].

(2) Beneficial ownership, for the purpose of s 4 of the High Court (Admiralty Jurisdiction) Act, was construed to refer to such ownership of a ship as was vested in a person who had the right to sell, dispose of or alienate all the shares in that ship: at [8].

(3) Questions relating to jurisdiction were to be decided by applying the lex fori.What was admissible as evidence to determine whether a claim was within the jurisdiction of the court was also determined by the lex fori. The statement in the certificate of registration as to conclusiveness of evidence had no application in Singapore because whether it was conclusive evidence had to be determined by this court by applying Singapore Law: at [5] and [14].

Andres Bonifacio, The [1991] 1 SLR (R) 523; [1991] SLR 694, HC (folld)

Andres Bonifacio, The [1993] 3 SLR (R) 71; [1993] 3 SLR 521, CA (folld)

Bineta, The [1967] 1 WLR 121; [1966] 2 Lloyd's Rep 419 (folld)

Guiseppe di Vittorio, The [1998] 1 Lloyd's Rep 136 (distd)

Nazym Khikmet, The [1996] 2 Lloyd's Rep 362 (distd)

Ohm Mariana ex Peony, The [1993] 2 SLR (R) 113; [1993] 2 SLR 698 (refd)

Pangkalan Susu/Permina 3001, The [1977-1978] SLR (R) 105; [1975-1977] SLR 252 (folld)

Smith's Dock Co Ltd v The St Merriel (Owners); The St Merriel [1963] P 247 (folld)

Evidence Act (Cap 97, 1997 Rev Ed) s 108

High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed) s 4 (consd)

Merchant Shipping Code (USSR) arts 30, 33, 34

Supreme Court Act 1981 (c 54) (UK) s 21 (4)

Winston Kwek (Joseph Tan Jude Benny & Scott) for the plaintiff

Srivathsan s/o Rajagopalan (Haridass Ho & Partners) for the defendant.

Judgment reserved.

G P Selvam J

Application to set aside proceedings

1 By an admiralty writ in rem against the Kapitan Temkin dated 9 July 1996 the plaintiffs, an Australian corporation, asserted a claim for damages for breach of charterparty. The charterparty was made between the plaintiffs as charterers and Black Sea Shipping Co (“Blasco”) of Odessa, Ukraine as owners. It was common ground that Blasco would be the party liable in an action in personam.In the charterparty the registered owners were stated as “Black Sea Shipping Co, Odessa”. It was also stated in the charterparty that “Silver Line Ltd, London” were the disponent owners.

2 Admiralty jurisdiction of this court would have been properly invoked to enforce the claim in this action if and only if Blasco were, at the time the writ was issued, the beneficial owners of all the shares in the Kapitan Temkin. The evidence adduced in the affidavit leading to the warrant of arrest to support the assertion of such beneficial ownership was an entry in Lloyd's Register of Shipping 1995/1996. A warrant was issued and the ship arrested.

3 On 27 August 1996 an appearance was entered “for the defendants in this action”. The appearance did not reveal the identity of the defendants by name. On 21 September 1996 an application was filed seeking dismissal of the action on the ground that the court had no jurisdiction over the defendants in respect of the subject matter of the claim. The application further stated that Blasco were not the beneficial owners of the ship Kapitan Temkin. It was alleged that the Republic of Ukraine was the beneficial owner. No person in the employment of the Republic, however, filed an affidavit on its behalf. The affidavits of fact were made by the solicitor for the defendants but produced no evidence to show that the Republic was his client. Thus the identity of the client was not expressly stated. Furthermore, there was no doubt that the application was made by Blasco because there was an alternative prayer to refer the claim to arbitration pursuant to an arbitration clause in the charterparty to which the Republic admittedly was not a party. In other words the applicant...