THE MOLIERE REVISITED: SINGAPORE’S JURISDICTION TO HEAR STATUTORY AND CONTRACTUAL CLAIMS UNDER SECTION 3(1)(f) OF THE HIGH COURT (ADMIRALTY JURISDICTION) ACT (CHAPTER 123)

• Author: HARIDASS AJAIB CHANAKA KUMARASINGHE
• Citation: (2001) 13 SAcLJ 456
• Date: 01 December 2001
• Published date: 01 December 2001

Abstract

The following article is an analysis of a recent Singapore Court of Appeal decision, which held that The Moliere[1925] P 27 was of no assistance to determining jurisdiction under Section 3(1)(f) of the High Court (Admiralty Jurisdiction) Act (Chapter 123) (‘the Act’). The significance of this is that the Singapore Courts now have jurisdiction to hear contractual and statutory claims under Section 3(1)(f), while current academic literature still cite The Moliere as authority to suggest that such claims cannot be heard under this admiralty jurisdiction. The wider implication of this judgment is that all heads of jurisdiction under Section 3(1) could arguably be interpreted more widely to include more types of claims.

The Appeal

The appeal of Zarkovic Stanko v Owners of the Ship or Vessel ‘MARA’1 (“The Mara”) to the Singapore Court of Appeal centred on a disputed contractual payment of US$122,400.00. The claim arose from an injury suffered by the appellant, a fitter on board the ‘Mara’ where he was employed. Pursuant to article 15 of a collective agreement, he was entitled to a disability compensation of US$122,400.00 from the owners of the ‘Mara’, without prejudice to such damages he was entitled to in law. He was paid a settlement sum of US$420,000.00 pursuant to O 70 r 34 of the Rules of Court,2 which did not include the claim for US$122,400.00. It was further agreed under O 70 r 34 that the owners had the right to challenge the appellants’ claim for US$122,400.00 and that after the payment of the settlement sum, the action would continue solely to decide whether the appellant was entitled to the contractual sum.

The High Court refused to grant him this additional sum on the basis of lack of jurisdiction and disallowance of double recovery.3 The subsequent appeal to the Court of Appeal raised two questions:

1. 1. Does Section 3(1)(f) of the High Court (Admiralty Jurisdiction) Act (Chapter 123) (“the Act”) give the Singapore Courts jurisdiction to hear this contractual claim?

   and

2. 2. Was the appellent, having already been paid the settlement sum plus costs under the Rules of Court, still entitled in law to the claim for US$122,400.00?

The Court of Appeal answered both questions in the affirmative, and the upshot of its decision on the first question is noteworthy. It undoubtedly clarified the jurisdictional width of Section 3(1)(f) of the Act in relation to contractual claims. By also confining the old English authority of The Moliere4 to its historical roots. The Mara has now effectively left the door open to further interpret not only Section 3(1)(f) of the Act, but arguably the whole of Section 3(1) of the Act, based on an important observation made by Lord Brandon in The Antonis P Lemos; Samick Lines Co Ltd v Owners of the Antonis P Lemos5 (“The Antonis P Lemos”).

This article will now proceed to analyse how this was achieved, by discussing how the Court of Appeal dealt with the first question on appeal: what is the exact nature of the court’s jurisdiction under Section 3(1)(f) of the Act?

The Incompatibility of Section 3(1)(f) of the Act and The Moliere

Section(3)(1)(f) of the Act sets out the admiralty jurisdiction of the High Court to hear and determine any of the following matters:

“any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship”.

As set out in The Mara,6 this Section envisages two types of claims for loss of life or injury. The first one is ‘fault free’, where the death or loss of life is sustained in consequence of any defect in the ship, or in her apparel or equipment. The second type of claim requires there to be ‘fault’, in that the death or injury is caused by a wrongful act or default of the owners or the other persons enumerated, and in a manner as listed, in Section 3(1)(f) of the Act. The Section is straightforward when used directly: for example, where there is death or injury in one of the two ways as envisaged in the Section, a claim can be made against the vessel based on that direct tort. However, before The Mara, the uncertainty in Singapore seemed to lie in the situations where this claim was brought by way of either a statutory or contractual indemnity, or where such a claim was made irrespective of fault. The origins of this problematic distinction can be traced back to The Moliere.

What was in issue in this 1925 case was a claim made by the owners of the ‘Adolf’ against the owners of the ‘Moliere’ after the collision of their respective vessels. They claimed an indemnity for what they had already paid the relatives of the crew who died during the collision. The owners of the ‘Adolf’ made this payment under Swedish statutory compensation rules. In England, the legislation which was in force at the time was the Admiralty Court Acts of 1840 and 1861, and the Supreme Court of Judicature Act 1873, as extended by the Maritime Conventions Act 1911. The Maritime Conventions Act 1911 by Sections 2, 3(1) and 5 extended the admiralty jurisdiction of the High Court. They provided the following:

“2 Where loss of life or personal injuries are suffered by any person on board a vessel owing to the fault of that vessel and of any other vessel or vessels, the liability of the owners of the vessels shall be joint and several:

Provided …

3(1) Where loss of life or personal injuries are suffered by any person on board a vessel owing to the fault of that vessel and any other vessel or vessels, and a proportion of the damages is recovered against the owners of one of the vessels which exceeds the proportion in which she was in fault, they may recover by way of contribution the amount of the excess from the owners of the other vessel or vessels to the extent to which those vessels were respectively in fault:

Provided …

5 Any enactment which confers on any court Admiralty jurisdiction in respect of damage shall have effect as though references to such damage included references to damages for loss of life or personal injury, and accordingly proceedings in respect of such damages may be brought in rem or in personam.”

Commenting on these provisions, Roche J rightly came to the conclusion that:

“It is to be observed that ss. 2, 3 and 5 of the Act are concerned with damages and with actions therefor. No mention is made of compensation or of claims for compensation arising independently of fault in a shipowner, and no right of contribution or indemnity is conferred in respect of payments made by way of compensation.”

The two broad categories where Roche J held that there was no admiralty jurisdiction seemed to be for claims for ‘compensation’or claims for ‘compensation arising independently of fault’. This is a clear indication that this statute only allowed damages to be recovered when...