The "Mosgulf"

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 06 January 1994
• Neutral Citation: [1994] SGCA 2
• Docket Number: Civil Appeal No 216 of 1992
• Date: 06 January 1994
• Year: 1994
• Published date: 19 September 2003
• Plaintiff Counsel: Francis Goh (Joseph Tan Jude Benny & Co)
• Citation: [1994] SGCA 2
• Defendant Counsel: R Govintharasah s/o Ramanathan and Tan Siew Tiong (Gurbani & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Negligence,Implied terms,Bailee did not rely on bailor's skill or judgment when hiring goods,Bailment,Whether bailee breached duty of care by failing to apply anti-freeze to generator's cooling water,Contract,Fitness of goods for a particular purpose,s 9(4), (5) & (6) Supply of Goods and Services Act 1982 [UK],Contractual terms,Duty to take reasonable care of goods as bailees

(delivering the grounds of judgment of the court): The defendants were the owners of the bulk carrier Mosgulf. It operated as a tramper and was managed by Hudson Steamship Co Ltd of London (`Hudson`).

In September 1989 one of the generators on board the Mosgulf sustained damage. An auxiliary generator was required until the ship`s own generator had been repaired.

On 29 September 1989 Hudson telexed Barwil Agencies enquiring if the latter could supply a portable generator of certain specifications. The ship was then on her way from Rotterdam to Taichung via Singapore.

The plaintiffs, an associate company of Barwil Agencies, then offered by telex of 2 October 1989 to supply a generator on a monthly rental of $24,450 complete with standard and specified additional attachments. For consumables they were to be billed separately. The generator offered by the plaintiffs was not their own. It was to be hired from Yeow Kong Electrical Co (Pte) Ltd (`Yeow Kong`).

Following the plaintiffs` offer, there were telephone conversations between the plaintiffs` sales and operations executive, Steven Lee Ting Hoon (`Steven Lee`), and Captain Frank Davies (`Captain Davies`), the operations manager of Hudson. Steven Lee confirmed that he could supply the Aggreko generator which was what Captain Davies wanted. Since the vessel was trading on a worldwide basis, it was not known when and where the generator could be redelivered. So it was finally agreed that the hire would be for a minimum period of three months at $24,450 per month. The generator was then installed on board while the vessel was in Singapore on 11 October 1989 with various accessories and consumables. The consumables did not include antifreeze as none was requested.

Later that month when the ship was in South Korea, the generator broke down when its dynamo insulator burnt out. The plaintiffs decided to replace the generator with another generator of the same make and specifications. On her way to Greece via Singapore the replacement was carried out on board outside Singapore. The ship then proceeded on her way to Europe. This was around the end of November 1989.

In January 1990 while the ship was at the Black Sea Russian port of Yushny the ambient temperature fell to around minus 20[deg ]C. In consequence, the cooling water of the generator froze, causing cracks to the cooling pipes and casings. The generator became unworkable. It was eventually returned to Singapore in May 1990 as cargo on board another vessel, the Nedlloyd Seoul. The defendant had paid hire charges only for the period 11 October 1989 to 10 March 1990.

The plaintiffs thereupon commenced these proceedings for the sum of $110,118.75 being arrears of hire charges from 11 March 1990 to 10 May 1990 and loss of earnings from 11 May to 10 August 1990 plus miscellaneous items. The defendants denied the plaintiffs` claim and counterclaimed for the expenses incurred in connection with the replacement of the generator off Singapore and the return of the replacement generator to Singapore amounting to US$22,081.45. The matter went before the learned judicial commissioner Mr GP Selvam, who dismissed the plaintiffs` claim with costs and awarded the defendants their counterclaim with costs. In delivering his judgment, the learned judicial commissioner said:

I was clear that the English Supply of Goods and Services Act 1982 should be applied to this case under s 5 of the Civil Law Act (Cap 43). It was common ground between the parties that the Civil Law Act imports the English Act into Singapore.

The surrounding circumstances of the case are these: The defendants required an adventitious mobile generator on a temporary basis for an ocean going ship. At first, the ship called at Singapore on a voyage from Northern Europe to Taiwan. Later, the ship came to Singapore on her way to Europe where the ship would operate in winter. The plaintiffs were given clear notice of these matters.

The generator was required for only one particular purpose, namely to generate electricity. Furthermore, the particular purpose for which it was required was made known to the plaintiff [sic] when Captain Davies advised them that he needed a generator - that is a machine to produce electric power for a ship trading worldwide. He thus impliedly, if not explicitly, advised the particular purpose for which the defendants were hiring it. The plaintiffs failed to supply a suitable generator fit for that purpose. The generator they furnished was not fit for the purpose of producing electricity in winter conditions which a vessel trading worldwide could be reasonably expected to encounter.

The plaintiffs would have furnished a generator fit for the purpose if adequate information and instructions on the use of antifreeze together with adequate supply of antifreeze had been given. They failed to do this. In this case the suppliers had detailed information on antifreeze in a separate manual called ` Know Your Cooling System `. This book contained more details and specifications on water and the cooling system but it was not given to the ship. Additionally, it must be emphasized that without an adequate supply of antifreeze, the information and the generator would have been useless. I therefore hold that the plaintiffs were in breach of the implied term.

It is principally against this part of the learned judicial commissioner`s judgment that the appeal was directed.

The relevant provision of the English Supply of Goods and Services Act 1982 [UK] is s 9, which reads:

(1) Except as provided by this section and section 10 below and subject to the provisions of any other enactment, there is no implied condition or warranty about the quality or fitness for any particular purpose of goods bailed under a contract for the hire of goods.

(2) Where, under such a contract, the bailor bails goods in the course of a business, there is (subject to subsection (3) below) an implied condition that the goods supplied...