The "Pacific Wisdom"

JurisdictionSingapore
JudgeGoh Joon Seng J
Judgment Date08 April 1998
Neutral Citation[1998] SGHC 100
Docket NumberAdmiralty in Rem No 325 of 1996 (SIC 8503 of 1997)
Date08 April 1998
Year1998
Published date19 September 2003
Plaintiff CounselLoo Dip Seng (Ang & Partners)
Citation[1998] SGHC 100
Defendant CounselPhilip Tay (Rajah & Tann)
CourtHigh Court (Singapore)
Subject MatterWhether endorsing writ with address of plaintiffs mere irregularity capable of amendment,Amendment of endorsement,Application for leave to amend endorsement in writ describing plaintiffs and their registered office,O 20 r 5 Rules of Court 1996,Whether mistake in endorsement genuine,Pleadings,Whether mistake misleading or such as to cause any reasonable doubt as to identity of real plaintiffs,Civil Procedure,Change in address of plaintiffs on writ constituted change of party suing as plaintiffs,Address on writ served as identification of plaintiffs
Judgment:

GOH JOON SENG J

This is an application by the plaintiffs for leave to amend the endorsement in the writ describing themselves as `a body corporate according to the laws of Liberia and having their registered office at 80, Broad Street, Monrovia, Liberia` (the endorsement) to `being a body corporate according to the laws of Hong Kong and having their registered office at 3/F, Wong House, 26-30 Des Voeux Road West, Hong Kong`.

2. The background

The registered owners of the `Pacific Wisdom` are Pacific Wisdom Shipping Inc, a company incorporated in Liberia, with their registered office at 80 Broad Street, Monrovia, Liberia.

3.By a bareboat charter (the charter) entered into on 22 November 1991, the Pacific Wisdom was chartered to Charterad Enterprises Ltd, a company incorporated in Hong Kong with their registered office at 3/F, Wong House, 26-30 Des Voeux Road West, Hong Kong. The period of the charter was five years from date of delivery of the vessel.

4.On 28 August 1993, during the currency of the charter, the Pacific Wisdom collided with the vessel `Fong Shin` near Jong Fairway, Singapore.

5.After the collision, Sinclair Roche & Temperley representing the Pacific Wisdom and Drew & Napier representing Fong Shin entered into negotiations for apportionment of blame.

6.On 17 June 1994, an agreement was arrived at, whereby Pacific Wisdom accepted 45% blame and Fong Shin 55% blame.

7.On 27 July 1995, pending exchange of each vessel`s claims, the period of limitation was extended on terms that the extension could be terminated by 21 days` notice.

8. The proceedings

On 8 June 1996, on the instructions of Sinclair Roche & Temperley, Ang & Partners commenced these proceedings. The plaintiffs are referred to in the title of the action as `The Owners of the Ship or Vessel "Pacific Wisdom" (LR No 9001801)`. The writ contains the endorsement which is made under O 6 r 2(1)(e) of the Rules of Court 1996.

9.The claim, endorsed on the writ, reads:

The plaintiffs` claim is for damages arising from damage caused to their ship `Pacific Wisdom` and loss and expense sustained by them by reason of a collision between the `Pacific Wisdom` and the ship `Fong Shin` of the port of Singapore which occurred near Jong Fairway, Singapore on or about 28 August 1993 as a result of the negligence of the defendants, their servants or agents in the navigation, control or management of the said `Fong Shin`.

10.Paragraph 3 of the affidavit of Kenneth Lie Kong Beng, solicitor for the Pacific Wisdom filed on 8 June 1996 for the arrest of the Fong Shin states that `[the] plaintiffs` claim is for damages arising from damage caused to their ship "Pacific Wisdom" and loss and expense sustained by them `.

11.Following the arrest of the `Fong Shin` on or about 9 June 1996, security was provided on behalf of the defendants by way of a letter of undertaking from Ocean Marine Mutual Insurance Association Ltd. The undertaking is addressed:

[to] the owners of the ship or vessel `Pacific Wisdom`, the plaintiffs in Admiralty in Rem No 325 of 1996.

12.On 15 August 1996, the agreement on settlement of liability in terms of 45% blame on the part of the `Pacific Wisdom` and 55% blame on the part of the `Fong Shin` was filed by the parties in court.

13.On 13 December 1996 the plaintiffs filed a reference to the registrar for assessment of their claims. Paragraph 1 of the reference describes the plaintiffs` claim as being `for damages arising out of a collision which occurred on the 28 day of August 1993 between their ship "Pacific Wisdom" and the defendants` ship "Fong Shin" near Jong Fairway, Singapore`.

14.Thus, it was quite clear that up to that stage the plaintiffs were Pacific Wisdom Shipping Inc, the registered owners of the `Pacific Wisdom`.

15.It was only when the defendants` solicitors sought clarification of the plaintiffs` claims that the plaintiffs` solicitors on 12 June 1997 disclosed the charter, contending that the description `owners` included the charterers, Charterad Enterprises Ltd.

16.On 28 July 1997, the defendants filed their defence and counterclaim. In their defence, the defendants contend that the damage and loss claimed were sustained by the charterers. As the plaintiffs are the registered owners and not the charterers, the claims are denied.

17.On 16 September 1997, the plaintiffs filed an application in SIC 7159/97 for leave to amend the writ by adding to the endorsement the address of the registered office and place of incorporation of Charterad Enterprises Ltd. This would bring in Charterad Enterprises Ltd as one of the plaintiffs.

18.The application was dismissed by the assistant registrar on 31 October 1997. The plaintiffs thereupon appealed in RA 403/97 against the assistant registrar`s decision.

19.Pending the hearing in RA 403/97, the plaintiffs filed an application in SIC 8503/97 for leave to amend the writ. This time the leave sought was to delete the endorsement and substitute in its place the description reading `being a body corporate according to the laws of Hong Kong and having their registered office at 3/F Wong House, 26-30 Des Voeux Road West, Hong Kong`. Quite clearly the application was to substitute as plaintiffs the charterers, Charterad Enterprises Ltd in place of Pacific Wisdom Shipping Inc, the registered owners of the Pacific Wisdom.

20.SIC 8503/97 and RA 403/97 came up for hearing before me. I dismissed the application in SIC 8503/97 and gave leave to plaintiffs to withdraw their appeal in RA 403/97. The plaintiffs have appealed to the Court of Appeal against the dismissal of their application in SIC 8503/97. I now give my reasons.

21.Counsel for the plaintiffs contended that the application in SIC 8503/97 should be allowed on the following grounds: (i). endorsing the writ with the wrong address of the plaintiffs was an irregularity capable of amendment, there being no change of party suing as plaintiffs; and/or

(ii). if it did constitute such a change, the application should nonetheless be allowed under O 20 r 5(3).

To address the issues raised in this application, it is necessary to set out the provisions of O 6 r 2(1)(e) and O 20 r 5.

22.Order 6 r 2(1)(e) reads:

Order 6

2(1) Before a writ is issued, it must be endorsed -

(a)

(b)

(c)

(d)

(e) where the plaintiff sues by a solicitor, with the plaintiff`s address and the solicitor`s name or firm and a business address of his within the jurisdiction;

(f)

(g)

Order 20 r 5 reads:

Order 20

5 (1) Subject to Order 15, Rules 6, 6A, 7 and 8, and 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 paragraph (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 paragraph (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.

(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.

(5) An amendment may be allowed under paragraph...

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1 cases
  • The "Pacific Wisdom"
    • Singapore
    • Court of Appeal (Singapore)
    • 9 September 1998
    ...1 Lloyd’s Rep 39, found that the word “owners? in the title of the writ included the bareboat charterers. He said (The Pacific Wisdom [1998] 1 SLR (R) 964 at [18]): After considering the submission of counsel for the plaintiffs and the authorities cited by him, I have come to the view that ......

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