The "Kota Pahlawan"

• Jurisdiction: Singapore
• Judge: T S Sinnathuray J
• Judgment Date: 09 October 1981
• Neutral Citation: [1981] SGHC 22
• Docket Number: Admiralty in Rem No 190 of 1980
• Date: 09 October 1981
• Year: 1981
• Published date: 19 September 2003
• Plaintiff Counsel: J Prakash (Drew & Napier)
• Citation: [1981] SGHC 22
• Defendant Counsel: K Gopalan (Wu & Rajah)
• Court: High Court (Singapore)
• Subject Matter: Whether new party had been substituted,App A Form 155, O 6 r 4 & O 70 r 1(1) Rules of the Supreme Court 1970,Application to amend indorsement of writ- Leave to amend,Indorsement,Writ of summons,Leave to amend,art III r 6 of Schedule Carriage of Goods by Sea Act 1972,Writ in rem,Civil Procedure,Whether defendants deprived of defence of limitation,Practice and procedure of action in rem,Admiralty and Shipping

This is an appeal by the defendants against the decision of the Assistant Registrar giving the plaintiffs leave to amend the indorsement of the address of the plaintiffs on p 3 of the writ of summons. From:

This writ was issued by Wu & Raja, of No 205 Colombo Court, Singapore, Solicitors for the said plaintiff(s) whose address is at 34, Lorong 32, Geylang Road, Singapore 14.

To:

This writ was issued by Wu & Raja, of No 205 Colombo Court, Singapore, Solicitors for the said plaintiff(s) whose address is at Jalan Sunan Ampel, No 12, Jakarta, Indonesia and is a partnership firm with limited liability and registered according to the laws of Indonesia.

The writ of summons relates to an admiralty action in rem. The plaintiffs are `The owners of cargo lately laden on board the ship or vessel `KOTA PAHLAWAN`. The defendants are `The owners of the ship or vessel `KOTA PAHLAWAN`. In the indorsement of claim the plaintiffs claim as owners of certain goods or indorsees or holders for value of the bill of lading in respect of the goods shipped on board the defendants` vessel `KOTA PAHLAWAN` for carriage from Singapore to Indonesia against the defendants damages for breach of contract and/or breach of duty and/or negligence of the defendants, their servants or agents in respect of damage and/or short delivery of some of the goods.

The writ of summons was issued on 10 April 1980. Service of the Summons on the solicitors for the defendants was deferred because there was a banker`s guarantee furnished by the defendants through their solicitors to Universal Union Trading Co Pte Ltd c/o the plaintiffs` solicitors. Universal Union were the shippers and the consignors of the goods.

On 23 January 1981, the writ together with the statement of claim were served on the solicitors for the defendants. On 20 February the plaintiffs obtained leave to enter a judgment in default of appearance. On 5 March judgment was entered against the defendants for the amount quantified in the statement of claim.

On 16 March the defendants moved the court to set aside the judgment. One of the grounds raised at that hearing, though not the ground on which I set aside the judgment, was that Universal Union were not, at the time the cause of action arose, the owners of the goods, nor were they the holders or indorsees of the bill of lading of the goods. It was therefore said that they were not entitled to bring this action.

At the hearing of this appeal, the defendants relied on the same ground. It was contended for the defendants that by amending the indorsement of address, a new party has been substituted as the plaintiffs in the action, and this has deprived the defendants of the defence of limitation that had been available to them under Article III r 6 of the Schedule to the Carriage of Goods by Sea Act 1972 (No 30 of 1972).

The first point to note is that an admiralty action in rem, like an action inpersonam, is commenced by a writ of summons except that there is a special form for an action in rem in Form 155 in App A of the Rules of the Supreme Court. The Form provides, indeed it confirms, the practice that when the parties in an action in rem are owners of a ship, and I include owners of cargo, they need not be identified by name, but can be described generally as has been done in this case.

Next to be noted is, when it comes to the giving of the address of the parties, in a writ in personam, in the case of a defendant his address is a necessary part of the writ and must be correctly stated. As for defendants in an admiralty in rem action, Form 155 provides,

To:

The (owners of and other) persons interested in the ship of the port of (or cargo, etc, as may be .that it is sufficient to name the port of the registration of the ship without

...