The "Kusu Island"

• Jurisdiction: Singapore
• Judge: Sinnathuray J
• Judgment Date: 14 September 1989
• Neutral Citation: [1989] SGCA 11
• Docket Number: Civil Appeal No 77 of 1983
• Date: 14 September 1989
• Year: 1989
• Published date: 19 September 2003
• Plaintiff Counsel: Denis Murphy (Goodwin & Co)
• Citation: [1989] SGCA 11
• Defendant Counsel: AB Reddy (Niru & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Effect of limitation period,Amendment to writ to add names of two other ships,Whether amendment should be allowed,Civil Procedure,Amendment to add names of two other ships,Whether owner of ship or res is party to action,O 20 r 5(3) Rules of Supreme Court 1970,Writ against ship,Admiralty and Shipping,Whether owner of ship or res party to action,020 r 5(3) Rules of Supreme Court 1970,art 111 of r 6 Carriage of Goods by Sea Act (Cap 33),Whether statutory discretion to extend time exists

Cur Adv Vult

(delivering the judgment of the court):The appellants, the defendants in this action, were at the material time the owners of three ships, Brani Island, Senang Island and Kusu Island. The respondents, the plaintiffs, were owners of 93 bales of cotton sheets which were shipped and carried on board the ship Brani Island from Karachi to Singapore under two bills of lading dated respectively 15 September and 30 September 1979. Each of the bills of lading provides that the laws of Singapore shall be the governing law, and contains, inter alia, the usual provisions that in any event the carrier shall be discharged from all liability in respect of loss or damage of the goods unless a suit is brought within one year after delivery of the goods or the date when the goods should have been delivered, and that the contract of carriage is `subject to the provisions of the Rules as applied by the Singapore Carriage of Goods by Sea Ordinance`.

The Brani Island arrived in Singapore on 15 October 1979 and the respondents took delivery of the cargoes on 27 October 1979, and it was found that part of the cargo was damaged. Negotiations between the parties took place, but did not lead to any settlement. Just ten days before the expiry of the period of one year, ie on 16 October 1980, the respondents commenced this admiralty action in rem against the owners of the ship or vessel Brani Island claiming damages for breach of contract and/or negligence. Approximately six months later, on 21 April 1981, the respondent amended the writ by deleting `The owners of the ship or vessel Brani Island and substituting therefore `The owners of the ships or vessels Brani Island, Senang Island, and Kusu Island. In effect, the amendment consisted of an addition of two ships, Senang Island and Kusu Island, to the writ, which were sister ships of Brani Island. Thenceforward there were three ships named on the writ, and the writ could be served on any one of them. At the time of the amendment the writ had not been served; the amendment was made pursuant to O 20 r 1(1) of the Rules of Supreme Court, and no leave of the court was required.

On 14 October 1981, which was one day before the validity of the writ expired, the respondents took out an ex parte application for a renewal of the writ for a further period of 12 months from 16 October 1981 and an order was made on 23 October 1981 in terms of the application. On the same day, the respondents` solicitors were informed that the ship Kusu Island was in port and, immediately on the following day, the writ, after a further amendment by the deletion of the names of the ships, Brani Island and Senang Island, was served on Kusu Island. This amendment was, of course, essential, and nothing turns on it. On 2 November 1981 the appellants entered a conditional appearance, and following that, on 11 November 1981, applied for an order that the amendment to the writ, ie the addition of two ships, Senang Island and Kusu Island, made by the respondents be disallowed and struck out and that the service of the amended writ on the ship Kusu Island be set aside, or in the alternative, for an order that the order of the court dated 23 October 1981 renewing the writ for the period of 12 months and the service thereof on ship Kusu Island be set aside. The appellants` application was heard before the registrar, and he allowed the application. Against his decision, the respondents appealed, and the appeal was heard before Lai Kew Chai J in chambers.

Before the learned judge in the case of Owners of Cargo Laden on Board MV Brani lsland v Owners of MV Kusu Island [1985] 1 MLJ 342 there were two substantive issues. The first was whether the amendment to the writ made by the respondents should be disallowed and struck out and the service of the writ on the ship `Kusu Island` be set aside, and the second issue was whether the order made by the assistant registrar on 23 October 1981 renewing the validity of the writ for the period of 12 months should be set aside. On the second issue the learned judge agreed with the learned registrar and held that the latter had exercised his discretion properly in setting aside the order renewing the validity of the writ. Against this part of his decision there was no appeal. On the first issue the learned judge allowed the appeal and held that the amendment to the writ ought not to have been struck out. It is against this part of his decision that the appellants brought this appeal.

It is convenient at this stage to refer to the relevant provisions of the Rules of Supreme Court governing amendments to a writ of summons. As we have said, the amendment to the writ (ie the addition of the two ships, Senang Island and Kusu Island) was made by the respondents on 21 April 1981; it was made pursuant to O 20 r 1(1), and no leave of the court was required. However, after the amended writ was served, the appellants were entitled to apply to court under O 20 r 4(1) to disallow the amendment; that precisely was what they did. On the hearing of an application under r 4(1), the court is required to act under r 4(2) which is as follows:

Where the Court hearing an application under this rule is satisfied that if an application for leave to make the amendment in question had been made under r 5 at the date when the amendment was made under r 1(1) or r 3(1) leave to make the amendment or part of the amendment would have been refused, it shall order the amendment or that part to be struck out.

And r 5, in so far as relevant, provides as follows:

(1) Subject to O 15 rr 6, 7 and 8 and the following provisions of this rule, the court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the court for leave to make the amendment mentioned in paras (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) An amendment to correct the name of a party may be allowed under para (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

Having regard to these rules, the main issue before us is whether if an application to court for leave to make the amendment by the addition of the two ships had been made under r 5 on 21 April 1981, leave to make that amendment would have been refused. On this issue it is necessary to consider within which of the two paragraphs of r 5, namely, paras (1) and (3), the amendment falls.

The learned judge treated the amendment as a variation or amplification of the name of the respondents and held that the amendment fell within para (3) of O 20 r 5. He said, at p 346:

I am of the view that the amendment, which added the names of both `Senang Island` and `Kusu Island`, was merely a variation or amplification of the name of the appellants which owned all three ships at all material times. The appellants were the only defendants intended to be sued from beginning to end. It is fallacious to assume that a new defendant was introduced or added by the amendment. An action in rem is not an action against the res itself but is merely a procedural device to obtaining jurisdiction over the owner of the res. In a writ in rem, the defendant is not described simply as `the ship X` but as `The owners of the ship X`.

And later he continued:

The consideration before me is whether the respondents have brought themselves within para (3) of O 20 r 5. In my view, the respondents have brought themselves within the provisions of that paragraph. The mistake in not including the names of two other vessels was a genuine mistake. What is most significant is the fact that the appellants were the only party impleaded at all material times. And they knew it beyond any peradventure. In effect, he held that the amendment was a correction of the name of the defendants, ie the appellants, and the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the appellants. With respect, we find ourselves unable to agree with the learned judge on this point.

In our opinion, the amendment was not a correction of the name of the appellants; their names as originally appeared in the writ was correct: `The owner of the ship or vessel Brani Island.` What the plaintiffs, ie the respondents, did was to add to that name two sister ships of Brani Island, namely, Senang Island and Kusu Island. There is nothing in the affidavits filed on behalf of the respondents to suggest that the omission to insert the names of the two sister ships at the time of the commencement of the action was due or attributable to a mistake; no explanation was given for this omission. Nor was there any statement by anyone on their behalf to say or explain when and how they came to know that Senang Island and Kusu Island were sister ships of Brani Island. It is true that Brani Island was broken up, but this came to the knowledge of the respondents` solicitors only in March 1982 or thereabouts. In his affidavit affirmed on 4 March 1982, Mr Gopalan, the solicitor for the respondents, said as follows:

It has lately come to my attention that the vessel Brani Island was broken up and disposed off in Pakistan. This was reported in the August 1981 issue of Lloyds Register of Shipping, Casualty Return. A copy of p 76 of the said return is annexed and marked

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