The "Rainbow Joy"

• Judge: Chao Hick Tin JA
• Judgment Date: 20 July 2005
• Neutral Citation: [2005] SGCA 36
• Citation: [2005] SGCA 36
• Defendant Counsel: Yap Yin Soon (Allen and Gledhill)
• Published date: 22 July 2005
• Plaintiff Counsel: Richard Kuek Chong Yeow and R Govintharasah (Gurbani and Co)
• Date: 20 July 2005
• Docket Number: Civil Appeal No 116 of 2004
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether court should refuse to grant stay on ground doctrine of forum non conveniens not applicable where foreign forum not court of law,Forum non conveniens,Stay of proceedings,Whether court should refuse to grant stay if party seeking stay having no real defence to claim,Civil Procedure

20 July 2005

Chao Hick Tin JA (delivering the judgment of the court):

1 This was an appeal against the decision of Tan Lee Meng J who upheld the decision of the assistant registrar to stay the present action instituted by the appellant against the respondent arising out of personal injuries suffered by the appellant on board the vessel, “Rainbow Joy” on the ground of forum non conveniens. The respondent was the owner of the vessel. We heard and dismissed the appeal on 27 April 2005. We now give our reasons.

The background

2 The appellant is a Philippine national, who signed on board the vessel as a second engineer. The respondent is a one-vessel Panamanian company, and the vessel was flying the Hong Kong flag. The appellant was recruited by the respondent’s manning agent in the Philippines, Cleene Maritime Corporation (“Cleene Maritime”).

3 The appellant’s contract of employment with the respondent was set out in two documents. The first was a standard contract for Philippine seafarers approved by the Philippine Overseas Employment Administration, a division of the Department of Labour and Employment of the Philippines (“The POEA contract”). The POEA contract incorporated the “Standard Terms and Conditions Governing the Employment of Filipino Seafarers On-Board Ocean Going Vessels” (“POEASTC”). It was clear that the POEA contract sought to protect Philippine seafarers as it provided, inter alia, for minimum compensation to seafarers for injuries or death arising out of their employment on board vessels. The appellant signed the POEA contract in the Philippines on 9 August 2002.

4 The second document was signed by the appellant in Singapore on 27 August 2002 when he came on board the vessel. This document was required by the laws of Hong Kong to be executed between the crew and the shipowner and was entitled “Agreement and Lists of the Crew”.

5 On 3 September 2003, while the vessel was at sea, the master of the vessel instructed the appellant, the chief engineer and some other crew members to repair the starboard side accommodation ladder which was then damaged. While the chief engineer was hammering the ladder, with the appellant holding onto it, a shard of metal was dislodged and it hit the appellant’s right eye. As a result of the impact, there was bleeding from that eye. Eye drops were applied and apparently the appellant also took some medication.

6 The incident occurred when the vessel was about 50 nautical miles off the West coast of Myanmar. The master of the vessel, appreciating the injury caused to the appellant’s eye, and on the advice of the Hong Kong Rescue Coordination Centre (“HKRCC”) diverted the vessel to Yangon with a view to seeking medical help. The HKRCC is the centre which coordinates all maritime search and rescue missions in international waters off the South China Sea. The ophthalmologist in Yangon found that the appellant’s right eye had a laceration over the right cornea. As the ophthalmologist had limited facilities, he advised the appellant to undergo surgery in the appellant’s home country.

7 As to what happened thereafter, there was a divergence of evidence. The appellant said that he had asked the vessel’s agent and P&I Club representative in Myanmar to send him to Singapore for the operation. On the other hand, the respondent averred that the appellant never requested to be treated in Singapore as he told the master of the vessel that he wished to return to the Philippines for treatment. The quickest way home was via Singapore. The vessel arrived in Singapore on 9 September 2003 and the appellant was put on a flight to Manila the next day. Upon arrival, he received immediate treatment at the Manila Metropolitan Hospital.

8 On 22 September 2003, an operation was carried out on the appellant’s right eye. But that did not help much as the vision of the eye was still seriously impaired. In a hospital report of 10 December 2003 it was stated that “our specialist recommends corneal transplant with secondary intraocular lens implant for management”. However, in April 2004, the appellant refused to undergo a corneal transplant operation for the apparent reason that he had not spoken to his wife about it. As a result, he had to wait for the next available corneal donor.

9 In the meantime, on 5 November 2003, the appellant instituted arbitration proceedings before the National Labour Relations Commission (“NLRC”) in the Philippines, claiming US$80,000 as damages for the injury to his right eye. However, on 30 December 2003, the appellant commenced an admiralty action in Singapore against the respondent for negligence and/or breach of contract or duty resulting in the injury to his right eye. The appellant also alleged that the respondent had failed to treat his eye injury with due urgency. He asked for a total compensation of S$460,000. Later, on 15 January 2004, the appellant applied to withdraw his claim before the NLRC, which claim was consequently dismissed “without prejudice”.

10 On 4 May 2004, the appellant filed his Statement of Claim in the admiralty action. On 17 May 2004, the respondent applied to have the action stayed on three grounds:

(a) Under the POEA contract, the appellant was required to resolve disputes through arbitration in the Philippines.

(b) Under the POEA contract, there was an exclusive jurisdiction clause prescribing that proceedings should commence in the Philippines.

(c) The action should be stayed in favour of the Philippines on the ground of forum non conveniens.

11 The assistant registrar granted a stay on the ground of forum non conveniens which decision was upheld by Tan Lee Meng J. Neither the assistant registrar, nor Tan J, considered the application under the other two grounds. Being dissatisfied with Tan J’s decision, the appellant took the matter on appeal before us.

12 The appellant basically made a two-pronged attack against the decision of the judge. First, on the general level, the appellant submitted that the doctrine of forum non conveniens was not applicable to the case because the proceedings which the appellant could institute in the Philippines were not in an ordinary court of law, but were before a special tribunal, the NLRC. Second, more specifically, the appellant averred that even if the doctrine of forum non conveniens could be applicable, in the circumstances of the present case, the judge should not have stayed the action here in favour of the Philippines, especially when the respondent had no real defence to the claim.

13 We will now proceed to examine each of these grounds in turn.

NLRC is not a court of law

14 The doctrine of forum non conveniens is the legal basis upon which the court, in exercise of its discretionary power, as reflected in para 9 of the First Schedule to the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed), may decline to exercise jurisdiction, after giving due consideration to the interests of the parties and the requirements of justice, that the case cannot suitably be tried in the courts here but only in another forum. In the words of the leading authority on the subject, namely, Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 (“Spiliada”), a stay will only be granted on this ground (at 476):

[W]here the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, [ie,] in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

15 The doctrine as expounded in Spiliada has been accepted and applied by this court in several cases, eg, Brinkerhoff Maritime Drilling Corp v PT Airfast Services Indonesia [1992] 2 SLR 776, Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97, Oriental Insurance Co Ltd v Bhavani Stores Pte Ltd [1998] 1 SLR 253 and PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Ltd [2001] 2 SLR 49 (“Hutan Domas”).

16 In Hutan Domas, this court summarized the procedure which the court should adopt on considering such an application at [16]:

The first stage is for the court to determine whether, prima facie, there is some other available forum, having competent jurisdiction, which is more appropriate for the trial of the action. The legal burden of showing that rests on the defendant. In determining that issue the court will look to see what factors there are which point in the direction of another forum as being the forum with which the action has the most real and substantial connection, eg availability of witnesses, the convenience or expenses of having a trial in a particular forum, the law governing the transaction and the places where the parties reside or carry on business. Unless there is clearly another more appropriate available forum, a stay will ordinarily be refused. If the court concludes that there is such a more appropriate forum, it will ordinarily grant a stay unless, in the words of Lord Goff [in Spiliada], ‘there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this inquiry the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions’ (hereinafter referred to as ‘the unless question’ or ‘unless proviso’ as may be appropriate in the context). One such factor which would warrant a refusal of stay would be if it can be established by objective cogent evidence that the plaintiff will not obtain justice in the foreign jurisdiction. But the mere fact that the plaintiff has a legitimate personal or juridical advantage in proceedings in Singapore is not decisive; regard must be had to the interests of all the parties and the ends of justice. We would emphasis[e] that in determining the ‘unless question’ all circumstances must be taken into account, including those taken into account in determining the question of the more...