The "Pangkalan Susu/Permina 3001"

• Jurisdiction: Singapore
• Judge: A P Rajah J
• Judgment Date: 12 January 1977
• Neutral Citation: [1977] SGHC 1
• Docket Number: Admiralty in Rem No 340 of 1976
• Date: 12 January 1977
• Year: 1977
• Published date: 19 September 2003
• Plaintiff Counsel: Michael Thomas QC and P Arul (Rodyk & Davidson)
• Citation: [1977] SGHC 1
• Defendant Counsel: Richard Stone QC and S Selvadurai (Selvadurai & Emmanuel)
• Court: High Court (Singapore)
• Subject Matter: Practice and procedure of action in rem,Meaning of 'beneficial owners',Admiralty and Shipping,Claim against defendants for non-payment of charter hire,Whether defendants 'beneficial owners' and liable,O 70 r 4(7) Rules of the Supreme Court 1970,Writ in rem,s 4(4) High Court (Admiralty Jurisdiction) Act (Cap 6, 1970 Ed)

On a motion praying for the setting aside of the writ of summons in Admiralty Suit No 340 of 1976 and all subsequent proceedings therein, after hearing arguments on both sides I acceded to the motion and ordered costs of the motion and action against the plaintiffs. The material facts, as they appeared from the affidavits and the documents put before me, are as follows.

On 23 August 1973 a charterparty was entered into between Rasu Maritima SA (Rasu), a company incorporated in Liberia, the owners (the plaintiffs herein), and Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina), Jalan Perwira 6, Jakarta, Indonesia, the Charterers (the defendants herein), in respect of a subject charter (Hull No 2391), now named Bruce Ruthi II, for ten years from date of delivery of the said vessel. By a rider dated 7 July 1975 to the said charterparty the parties thereto, for the consideration therein stated, agreed to convert the subject charter (Hull No 2391) from a time charter to a hire-purchase charter and Rasu thereby undertook `upon termination of the subject charter after 120th fully paid consecutive months to transfer title of the vessel to Pertamina. Upon delivery to Pertamina under this Rider the vessel shall be in class, free of all mortgages, liens and encumbrances provided that Pertamina has fully complied and performed all of the obligations on their part to be performed under the terms and conditions of the subject charter.` It was not in dispute that Hull No 2391 after being named Bruce Ruthi II had been delivered to Pertamina under the terms of the said charterparty on or before February 1976.

On 20 September 1976 Rasu commenced an Admiralty in Rem action (No 340 of 1976) against the owners of and other persons interested in the ship or vessel Pangkalan Susu otherwise known as Permina 3001 whereby they claimed against the defendants the sum of US$3,929,090.24 for nonpayment of the instalments of charter hire due for the months of February to August 1976 and bunkers under the aforementioned charterparty in respect of the vessel Bruce Ruthi II.

In para 6 of the affidavit, filed on behalf of the plaintiffs on 20 September to lead the warrant of arrest, it was deposed as follows:

This action is brought by the Plaintiffs pursuant to s 4(4) of the High Court (Admiralty Jurisdiction) Act (Cap 6). To the best of my knowledge and belief the defendants were at the time when the cause of action arose the charterers or in possession or control of the ship or vessel `Bruce Ruthi II`, and would be liable to the plaintiffs in an action in personam. They were, also at the date of the issue of the Writ in this action the beneficial owners of the ship or vessel `Pangkalan Susu` otherwise known as `Permina 3001` as respects all the shares therein.

The vessel Permina 3001 was accordingly arrested on 23 September 1976.

Section 4(4) of the High Court (Admiralty Jurisdiction) Act (Cap 6, 1970 Ed) (the Singapore Act) reads as follows:

In the case of any such claim as is mentioned in paras (d) to (q) of sub-s (1) of s 3 of this Act, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of the action arose, the owner or charterer of, or in possession or in control of, the ship, the admiralty jurisdiction of the court may (whether the claim gives rise to a maritime lien on the ship or not) be invoked by an action in remagainst -

(a) that ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person; or

(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid.

It is to be noted that the law relevant to the subject case in the Singapore Act is on all fours with the Administration of Justice Act 1956 (the English Act). The English Act was passed for the purpose, among others, of giving effect to the adherence of the United Kingdom to the International Convention Relating to the Arrest of Seagoing Ships (Command Paper 8954) made at Brussels on 10 May 1952. The Republic of Singapore is neither a signatory nor has it acceded to the Brussels Convention of 10 May 1952.

The history of the Permina 3001 is that on 9 May 1974 a purchase contract for the construction and purchase of one (1) 35,250 DWT motor tanker (Kanasashi Hull No 1120) was entered into between Greenock Shipping Corp (Greenock), a corporation registered under the laws of the Republic of Liberia, the seller, and Pertamina, the buyer. The vessel was to be delivered on or before 31 March 1976. The first payment was to be made on delivery date and the balance of the payments was to be made in 71 consecutive monthly instalments. Both the seller and the buyers had the right to assign subject to certain provisions in the contract. Upon full payment of all the 71 consecutive monthly payments there was to be a transfer of title. Under art XI (7):

TRANSFER OF TITLE UPON FULL PAYMENT:

Upon payment in full as specified herein for the VESSEL furnished hereunder, the title to the VESSEL with all its belongings on board and/or ashore is to be transferred to BUYER without any further payment to SELLER, free from all encumbrances and maritime liens. At the time of transfer of title to the VESSEL to BUYER she shall be in class and her class certificates shall be free of recommendations.

On full payment or prepayment as stipulated in this Contract, SELLER shall immediately execute or procure to be executed a legal transfer of the VESSEL to BUYER or its nominees free from all encumbrances and maritime liens. The SELLER shall provide for deletion of the VESSEL from the Ships Registry and deliver a Certificate of Deletion therefrom to the BUYER.

By an assignment agreement dated 1 November 1975 between Greenock and Ozark Shipping Co SA of Panama (Ozark) Greenock assigned all of its rights and interests under the said purchase contract to Ozark. The vessel was duly delivered under the contract to Pertamina on or about 29 March 1976 and since then Pertamina have been in possession and control of her. However, she was registered in the Republic of Panama on 12 July 1976 in the name of Ozark carrying the name of Pangkalan Susu/Permina 3001.

It is in these circumstances that the defendants Pertamina entered a conditional appearance on 27 September 1976 without prejudice to an application to set aside the writ and all subsequent proceedings.

Accordingly they filed a motion dated 5 October 1976 for the following order or orders:

1. That the Writ of Summons and all subsequent proceedings herein be set aside for want of jurisdiction in remunder s 4(4) of the High Court (Admiralty Jurisdiction) Act (Cap 6) and/or for non-compliance with the

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