The "Pacific Wisdom"

• Jurisdiction: Singapore
• Judgment Date: 09 September 1998
• Date: 09 September 1998
• Docket Number: Civil Appeal No 60 of 1998
• Court: Court of Appeal (Singapore)

The “Pacific Wisdom?

[1998] SGCA 77

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 60 of 1998

Court of Appeal

Admiralty and Shipping—Practice and procedure of action in rem—Writ in rem—Identity of party bringing action—Endorsement describing party bringing action as “owners? of ship or vessel—Meaning of “owners?—Whether “owners? including bareboat charterer—Civil Procedure—Amendments—Amendment of endorsement in writ—Identity of party bringing action—Endorsement describing party bringing action as “owners? of ship or vessel—Meaning of “owners?—Bareboat charterer’s address omitted from writ—Whether omission curable under O 2 r 1 The Rules of Court 1996—Addition of bareboat charterer’s address and particulars—Whether conditions under O 20 r 5 (3) The Rules of Court 1996 complied with—Words and Phrases—“Owners?—Whether including bareboat charterer

Following a collision between its ship, the Pacific Wisdom, and the respondent’s ship in Singapore waters, the appellant commenced an action in rem to obtain security for its claim. The appellant was described in the writ as “The Owners of the Ship or Vessel ‘Pacific Wisdom’?, “being a body corporate according to the laws of Liberia and having their registered office at 80, Broad Street, Monrovia, Liberia? (“the endorsement?). A year later, the parties discovered that thePacific Wisdom had in fact been on bareboat charter during the collision. The respondent, in its defence, denied the claim of the registered owner, since damage and loss had actually been suffered by the bareboat charterer. The appellant applied for leave to amend the writ by adding the registered office and place of incorporation of the bareboat charterer to the endorsement on the writ, but this application was dismissed, and the appellant appealed. The appellant also took out a second application for leave to amend the writ by substituting the particulars of the bareboat charterer for the particulars of the registered owner. The appeal and second application were heard together, and the trial judge granted leave to the appellant to withdraw its appeal, and dismissed the second application. The appellant appealed against the dismissal and contended that: “owners? might include bareboat charterers, and the omission of the bareboat charterer’s address was an irregularity curable under O 2 r 1 of the The Rules of Court 1996.

Held, dismissing the appeal:

(1) The objective test to determine the meaning of “owners? referred to what an objective and reasonable person in the shoes of the respondent would rationally believe the word in the particular context to refer to. It might in some circumstances refer to the bareboat charterer of the vessel, but not in the present context: at [20] and [21].

(2) The maritime practice of allowing several plaintiffs to sue collectively in the name of “The Owners of the ship or vessel X? was one of great practical convenience and was well recognised in the industry. However, this practice had to always be subject to the general principle that a party was entitled to know who his opponents were. This was especially so in the case of a defendant who did not enjoy the advantage of choosing his opponents. In order for a defendant to know the case he had to meet, he had to be capable of ascertaining precisely the identity of the party or parties bringing the action against him: at [25] and [26].

(3) As the bareboat charterer was never a party to the proceedings, there was therefore no irregularity in the writ. Further, as the bareboat charterer’s claim was already time barred, it would have had to comply with O 20 r 5 (3) before it could invoke the court’s power of amendment under O 2 r 1: at [30] and [31].

(4) As the relevant period of limitation in the present case had expired and the claim was time barred, the court would allow an amendment under O 20 r 5 (3) only if: (a) the omission was a genuine mistake; (b) the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intending to sue; and (c) it was just to allow the amendment. The appellant failed to satisfy the court that the persons who brought the action intended the bareboat charterer, either by name or description, to be the plaintiff in the action: at [33] and [36].

(5) The trial judge was right in finding that even if the omission of the address of the bareboat charterer in the endorsement was a mistake, it was misleading as to the identity of the real plaintiff. There was no mistake on the part of the persons who brought the proceedings. If it was a mistake, it was a mistake of identity, and not name, thus it did not fall within O 20 r 5 (3). On whether it was just to allow the amendment, the position was no different from that of a party which had neglected to issue proceedings in time and failed to persuade the court to show sympathy to him: at [34], [37], [40] and [41].

Anna L, The [1994] 2 Lloyd’s Rep 379 (refd)

Father Thames, The [1979] 2 Lloyd’s Rep 364 (refd)

Great Loyalty, The [1981-1982] SLR (R) 467; [1982-1983] SLR 287 (refd)

Hopper No 66, The [1908] AC 126 (refd)

Ilos, The [1982] 1 Lloyd’s Rep 39 (folld)

International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corp of India [1996] 1 All ER 1017 (folld)

Jason Textile Industries Pte Ltd v QBE Insurance (International) Ltd [1988] 2 SLR (R) 491; [1988] SLR 111 (refd)

Lim Yong Swan v Lim Jee Tee [1992] 3 SLR (R) 940; [1993] 1 SLR 500 (folld)

Sardinia Sulcis and Al Tawwab, The [1991] 1 Lloyd’s Rep 201 (folld)

Stolt Loyalty, The [1993] 2 Lloyd’s Rep 281, HC (folld)

Stolt Loyalty, The [1995] 1 Lloyd’s Rep 598, CA (folld)

Virginia Rhea, The [1983-1984] SLR (R) 639; [1984-1985] SLR 214 (refd)

Rules of Court 1996,TheO 2r 1, O 20r 5 (3) (consd);O 2r 1 (2), O 6r 2 (1) (e),O 20r 5

Loo Dip Seng (Ang & Pnrs) for the appellant

Philip Tay Twan Lip (Rajah & Tann) for the respondent.

M Karthigesu JA

(delivering the grounds of judgment of the court):

1 The appellants appealed against Goh Joon Seng J disallowing their application to amend the endorsement on the writ describing themselves as “being 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?. We dismissed the appeal and now give our reasons.

Background

2 The registered owners of the Pacific Wisdom are Pacific Wisdom Shipping Inc (“PWSI?), a company incorporated in Liberia with their registered office at 80 Broad Street, Monrovia, Liberia. By a bareboat charter (“the charter?) entered into on 22 November 1991, the Pacific Wisdom was chartered to Charterad Enterprises Ltd (“the bareboat charterers?), 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 the date of delivery of the vessel.

3 On 28 August 1993, during the currency of the charter, the Pacific Wisdom collided with the vesselFong Shin near Jong Fairway, Singapore. After the collision, Sinclair Roche & Temperley representing Pacific Wisdom and Drew & Napier representing Fong Shin entered into negotiations for the apportionment of blame.

4 On 17 June 1994, an agreement (“the June 1994 agreement?) was arrived at, whereby Pacific Wisdom accepted 45% blame and Fong Shin 55%. A further agreement (“the July 1995 agreement?) was reached on 27 July 1995 whereby, pending exchange of each vessel’s claims, the period of limitation was extended on terms that the extension could be terminated by either party giving 21 days’ notice.

The proceedings

5 On 8 June 1996, on the instructions of Sinclair Roche and Temperley, Ang & Partners commenced the proceedings in Admiralty in Rem 325/96. According to the appellants, the purpose of these proceedings was to obtain security for their claim as well as for the claims to be assessed by the registrar in the event that the parties could not agree. They were the plaintiffs in the suit.

6 The appellants are referred to in the title of the writ as “The Owners of the Ship or Vessel ‘Pacific Wisdom’ (LR No 9001801)?. The writ contains the endorsement, which was made pursuant to O 6 r 2 (1) (e), Rules of Court 1996. O 6 r 2 (1) (e) reads:

Order 6

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

   …

   1. (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;

…

7 The appellants’ claim, endorsed on the writ, reads:

...