The "Lotus M"

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 22 January 1997
• Neutral Citation: [1997] SGHC 18
• Date: 22 January 1997
• Subject Matter: Tort,Damages,Indemnity sought from tortfeasor by employer,Negligence,s 18 (b) Workmen's compensation Act (Cap 354)
• Docket Number: Admiralty in Rem No 399 of 1992
• Published date: 19 September 2003
• Defendant Counsel: B Ganesh and Richard Bangras (Kong & Lim)
• Court: High Court (Singapore)
• Plaintiff Counsel: Liew Teck Huat and Chua Hwee Ping (Niru & Co)

The facts

The plaintiff is a company engaged in ship repairs.

The `Lotus M` now named `Pretty` (Lotus M) is a motor tanker of 16,793 gross tons. She was built in 1981 by Kurushima Dockyard Co Ltd of Japan. Her length is 172 m, her breadth is 25.4 m and her depth is 14.35 m. Her forward area is divided into 15 cargo tanks, five each on port, centre and starboard, and two slop tanks. It was the No 5 centre tank that featured in these proceedings. Her port of registry is Panama and her owners at the material time were Easy Shipping Corporation of Liberia. Her operators were Navix Line Ltd of Japan whose local representative was Navship (Singapore) Pte Ltd (Navship).

The Lotus M was deployed to transport petroleum products. She arrived in Singapore on 3 February 1992 with a full load of gasoline from Dalien, China and berthed at the Tankstore Terminal at Pulau Busing to discharge her cargo. Having completed the discharge of her cargo on 5 February 1992, she carried out shuttling operations entailing loading and unloading petroleum products at various offshore refineries in Singapore. On 6 February 1992 she took on a cargo of naphtha at the Singapore Refinery Company and ESSO terminals for discharge at the Van Ommeren Terminal at Pulau Sebarok. The discharge was completed on 10 February 1992.

In the meantime on 7 February 1992, the plaintiff had been contacted by one Nagase (Nagase), the superintendent in the employ of Navship, with a view to its being engaged to carry out some repairs on board the Lotus M.

On 10 or 11 February 1992, a representative of the plaintiff, one Chu Yeng Choon (Chu) and Nagase went on board the Lotus M where Chu met the Master Captain Yasunosuke Kato (the Master), the Chief Officer Toru Sato (the Chief Officer) and the Chief Engineer. After some discussion a list of repairs was drawn up. Some of the repairs involved hot work, that is, cutting and welding. Chu therefore stipulated that the tanks must be made gas free. He was thereupon assured by the Master, the Chief Officer and Nagase that the tanks would be gas freed prior to the plaintiff`s commencement of work.

Following agreement on the list of repairs to be carried out, measurements were taken and parts fabricated at the plaintiff`s workshop from 12 to 14 February 1992.

Pending commencement of repairs, the Lotus M continued with her offshore shuttle service. The last consignment was discharged at 0620 hours on 14 February 1992 at the Van Ommeren Terminal. At that time the Lotus M had been committed to undertake a voyage to Kerteh, Trengganu, Malaysia with her expected time of arrival there at 11am on 18 February 1992.

To gas free her tanks, the Lotus M left port for South China Sea at around 1215 hours on 14 February 1992. At about 1300 hours the Lotus M under the direction of the Chief Officer commenced tank cleaning operation. This was done by pumping sea water at high pressure through the tank cleaning machines installed inside the tanks. Each tank was cleaned for approximately an hour. After tank cleaning, gas freeing began. This was to reduce the concentration of hydro-carbon vapours to bring it to less than 10% of the lower explosive limit (LEL). Gas freeing can be done either by the use of inert gas fans to pump in inert gas or by water driven fans to blow fresh air into the tanks. The use of inert gas is the safer method. Both methods were used. But in the case of No 5 centre tank gas freeing was done by blowing of fresh air with portable water driven fans placed on deck. This was followed by ventilation of the tank for four hours.

On 15 February 1992 at 0400 hours Lotus M set sail to return to Singapore. Gas freeing was completed at about 0800 hours. At 1140 hours the Lotus M anchored in the sea off Johore Shoal Buoy in position being latitude 01o 17.6`N and longitude 104o 06.6`E. This was approximately 1.0 nautical mile outside the port limits as defined in the Port of Singapore Authority (Port Limits) Notification pursuant to s 3(1) of the Port of Singapore Authority Act (Cap 236) in Gazette Notification s 201/79 of 1 October 1979. But the location was within Singapore`s territorial waters.

At about 1130 hours, the boats with Nagase, 61 workmen in the employ of the plaintiff and the fabricated parts and equipments on them arrived alongside the Lotus M. The transfer of the workmen, fabricated parts and equipment on board the Lotus M was completed at around 1530 hours. Work commenced at 1600 hours but no hot work was permitted pending completion of desloping whereby the slop was discharged onto a barge. This was on the specific instructions of Nagase to Chu who was also told that Lotus M had been gas freed.

At 1630 hours desloping was completed and the barge carrying the slop left. Chu then sought permission from Nagase to commence hot work. He was told by Nagase that hot work could commence after all the covers for the manholes and hatches were closed. Similar assurances were given by the Master and the Chief Officer. The Chief Officer then checked the gas reading of all tanks and found them to be less than 2% of LEL. However he only took one sample from each tank. They were taken from a depth of about 12 m from the main deck. Satisfied with the gas readings taken by him the Chief Officer had all the covers closed. Chu was then instructed to commence hot work. Work proceeded uneventfully and stopped at 0200 hours on 16 February 1992 when the workmen retired for the night during which they slept on board.

Work resumed at 0800 hours on 16 February 1992. At 0935 hours a violent explosion took place at the deck above No 5 centre tank. As a result of the explosion, five of the workmen were found dead, five missing and presumed dead and many were injured. Consequently the plaintiff as the employer paid compensation under the Workmen`s Compensation Act (Cap 354) (the Act) to those who elected to proceed under the Act amounting to $348,946.62 (the compensation).

Three of those injured however chose to proceed at common law against the plaintiff for damages and loss sustained by them as a result of the explosion. The proceedings are in Suit No 808 of 1995, Suit No 255 of 1995 and MC Suit No 2262 of 1995 (the three common law claims).

The plaintiff having paid the compensation brought this action for:

(i) an indemnity under s 18(b) of the Act against the defendant in respect of the same (the s 18(b) claim); and

(ii) a declaration (the additional claim) that it is entitled to be indemnified by the defendant in respect of the three common law claims.

By an order of court the three common law claims were ordered to be heard together with this suit or immediately thereafter.

When this suit came up for hearing, no statement of claim had been filed in MC Suit No 2262 of 1995. In Suit No 808 of 1995 the plaintiff herein as sole defendant therein had allowed interlocutory judgment to be entered. As no pleadings had been filed in MC Suit No 2262 of 1995 and it was not ready for trial I released counsel for the plaintiff there from further attendance. To obviate the need to recall witnesses at the hearing of Suit No 808/95 and Suit No 255/95 at a later date, I gave leave to counsel for the plaintiffs in those two suits to cross-examine witnesses testifying in this suit. I also ordered that the evidence adduced in this suit would form part of the evidence in those two suits.

At the end of the hearing I allowed the s 18(b) claim but I made no order on the additional claim. The plaintiff was accordingly awarded two thirds costs. The plaintiff thereupon appealed against my decision. The defendant then cross appealed. I now give my reasons.

The law

Section 18 of the Act reads:

Where any injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof -

(a) the workman may take proceedings against that person to recover damages and may claim against any person liable to pay compensation under this Act, but he shall not be entitled to recover both damages and compensation; and

(b) if the workman has recovered compensation under this Act, the person by whom the compensation was paid, shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.

By s 2, ` any reference to a workman who has been injured shall where the workman is dead, include a reference to his legal personal representative or to his dependants or any of them .`

Section 18 of the Act is in pari materia with s 6 of the English Workmen`s Compensation Act 1906 (the English Act) which read:

Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof - (1) the workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to recover both damages and compensation; and (2) if the workman has recovered compensation under this Act, the person by whom the compensation was paid, shall be entitled to be indemnified by the person so liable to pay damages as aforesaid,

Section 6 of the English Act came up for construction in Cory & Son Ltd v France, Fenwick & Co Ltd [1911] 1 KB 114. There a steamer belonging to the plaintiff was approaching a staith which was being used by the defendant for the purpose of taking a cargo of coal from the defendant. Two workmen employed by the plaintiff were in attendance on the steamer in a boat. As a result of the plaintiff`s servants in charge of the steamer complying with the direction given by the staith-master employed by the defendant the propeller was set in motion. This upset the boat and one of the workmen was drowned and the other injured. The plaintiff having been compelled to pay compensation under the English Act brought an action for...