The "Patraikos 2"

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 12 May 2000
• Neutral Citation: [2000] SGHC 86
• Citation: [2000] SGHC 86
• Defendant Counsel: Augustine Liew and Wendy Ng (Haridass Ho & Partners)
• Published date: 19 September 2003
• Plaintiff Counsel: Navinder Singh (Joseph Tan Jude Benny)
• Date: 12 May 2000
• Docket Number: Admiralty in Rem No 81 of 1996
• Court: High Court (Singapore)
• Subject Matter: s 128(1) Evidence Act (Cap 97, 1997 Ed),Civil Procedure,Whether correspondence privileged,Correspondence between defendants' solicitors in separate action and third party,Discovery of documents,O 24 r 7(3) Rules of Court,When discovery of particular documents will be ordered,Whether volume of documents so massive as to make discovery oppressive,Whether documents relate to matters in question,Privilege

JUDGMENT:

GROUNDS OF DECISION

The background

1. The defendants in this case entered into a contract of carriage sometime at the end of 1995, whereby they agreed to ship various consignments of cargo ("the cargo") on board their vessel, the "Patraikos 2" ("the vessel"). On or about 7 January 1996, the vessel was navigating through the Singapore Straits when it ran aground on the rocks of South Ledge, approximately 2.2 miles off the Horsburgh Lighthouse. The plaintiffs, who claimed to be the owners of the cargo, alleged that the grounding led to ingress of seawater into the vessel’s cargo holds. This in turn led to the cargo becoming submerged, requiring rescue by professional salvors.

2. The plaintiffs now bring the present action against the defendants, claiming for damage sustained by their cargo. In so doing, the plaintiffs based their claim on Art III rr 1 and 2 of the Hague Rules as amended by the Brussels Protocol 1968 ("the Rules"). Rules 1 and 2 read:

1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to —

(a) Make the ship seaworthy.

(b) Properly man, equip and supply the ship.

(c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.

3. It was the plaintiffs’ case that the defendants breached the duties imposed by the above provisions. Amongst other things, the plaintiffs alleged that the vessel’s Filipino second officer, Ben Gallardo Orlanda ("Orlanda"), was not competent to serve on the vessel as second officer. They contended that sometime in June 1989, Orlanda was second officer on another ship called the Saronikos II, which had also run aground. The plaintiffs further alleged that the vessel had no proper bridge management team.

4. The plaintiffs also contended that the grounding of the vessel alone could not have resulted in damage to the cargo, but that entry of seawater was facilitated by there being large corrosion holes in the vessel’s bulkhead.

5. The defendants denied all the plaintiffs’ allegations. Firstly, they contended that the vessel was in fact seaworthy. Apparently, the vessel had been surveyed and classed in Belgium just before the voyage. The vessel had then undergone extensive maintenance repairs at Rotterdam, and passed a drydocking inspection. This included a thorough inspection of all her compartments, which disclosed no defects therein. Secondly, the defendants maintained that the ship was properly manned, to a level exceeding flag requirements, by competent and certified officers and men. The defendants further maintained that the ship was fully and properly equipped and supplied. Finally, the defendants denied that any part of the ship was ever unfit or unsafe for the reception, carriage or preservation of goods carried on board.

6. In addition to the above contentions, the defendants also alleged that the grounding of the vessel was caused by Orlanda’s negligence. In this regard, the defendants relied on Art IV r 2 of the Rules, which reads:

2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from —

(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.

…

(c) Perils, dangers and accidents of the sea or other navigable waters.

7. Apart from the present action, other proceedings had also been instituted against the defendants in England ("the English action") by various other cargo owners whose cargo was also on board the vessel when the grounding took place.

The documents discovered by the defendants

8. On 8 October 1999, the defendants filed their list of documents for discovery. The plaintiffs were dissatisfied with the list, and filed Summons-in-Chambers 7688 of 1999, applying for a Further and Better List of Documents and Affidavit Verifying the same. Some of the documents requested were those which were referred to by documents disclosed in the defendants’ original list. Some of the other documents were said to exist based on the surrounding circumstances. The Assistant Registrar granted an order in terms, and the defendants appealed by Registrar’s Appeal No. 600005 of 2000 (the defendants’ appeal). I dismissed the defendants’ appeal with costs when it came up for hearing on 12 January 2000. The defendants have appealed against my decision (in Civil Appeal No. 17 of 2000) in so far as they relate to the following sets of documents ordered to be disclosed:-

(i) Survey reports for the vessel’s Annual Class Survey, Annual Loadline Survey, Annual Construction Survey, Annual Safety Equipment Survey and Annual Cargo Gear Survey.

(ii) Two faxes from Sinclair, Roche & Temperly (SRT) to Dioryx Maritime Corporation (Dioryx), dated 19 August 1996 and 3 September 1996 respectively. (SRT are the defendants’ solicitors in the English action. Dioryx was the agent employed by the defendants to manage the vessel.)

(iii) All documents, including surveys relating to class recommendations after survey of the vessel in Belgium.

(iv) All invoices evidencing repairs made to the vessel in the past 5 years prior to grounding.

(v) All classification survey reports/records, including but not limited to the Lloyd’s Classification Reports/Repairs, of the vessel for a period of five years prior to its grounding

(vi) All documents pertaining to the grounding of the Saronikos II in June 1989, including statements, if any, given by Orlanda in relation to the grounding.

I will now deal with each of these sets of documents in turn.

(i) Survey reports for the vessel’s Annual Class Survey, Annual Loadline Survey, Annual Construction Survey, Annual Safety Equipment and Annual Cargo Gear Survey.

9. Before an application for discovery of particular documents will be granted, the documents in question must be shown to "relate to matters in question in the cause or matter" (see O 24 r 7(3) of the Rules of Court). In this regard, the test laid in Compagnie Financiere v Peruvian Guano [1882] 11 QBD 55 (at 63), should be borne in mind. A document relates to the matters in question if:

(i) they would be evidence upon any issue

(ii) they contain information which may (as opposed to must) enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, or

(iii) they may fairly lead him to a train of...