The "Rainbow Joy"

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 13 January 2005
• Neutral Citation: [2005] SGHC 9
• Docket Number: Admiralty in Rem No 319 of 2003
• Date: 13 January 2005
• Year: 2005
• Published date: 13 January 2005
• Plaintiff Counsel: R Govintharasah (Gurbani and Co)
• Citation: [2005] SGHC 9
• Defendant Counsel: Yap Yin Soon (Allen and Gledhill)
• Court: High Court (Singapore)
• Subject Matter: Conflict of Laws,Appellant injured on ship,Factors considered by court when determining whether another available forum clearly or distinctly more appropriate existing,Whether stay of action should be granted on ground of forum non conveniens,Appellant signing contracts to work on board ship,Natural forum,Appellant initiating proceedings in Singapore against respondent shipowner and employer

13 January 2005

Tan Lee Meng J:

1 The appellant, Mr Paquito L Buton (“Buton”), appealed against the decision of the assistant registrar, Mr Vincent Leow, to stay his action against the respondent, the owners of the ship or vessel Rainbow Joy (“the shipowner”), on the ground of forum non conveniens. I dismissed his appeal and now give the reasons for my decision.

Background

2 On 9 August 2002, Buton, a Filipino engineer, signed an employment contract in Manila to work on board the Rainbow Joy, a general cargo ship registered in Hong Kong. The ship is owned by Rainbow Joy Shipping Inc, a Panamanian company, and managed by Hang Woo Ship Management Ltd (“Hang Woo”), a Hong Kong company.

3 Buton’s contract was in the Philippines Overseas Employment Administration (“POEA”) standard form, which has received a measure of international recognition: see Dimskal Shipping Co SA v International Transport Workers Federation [1989] 1 Lloyd’s Rep 166. The POEA contract, which is intended to protect the rights of Filipino seafarers, provides that the law of the Philippines shall govern the contractual relationship and that disputes are to be resolved by means of arbitration in the Philippines. It also sets out the minimum sum payable to a seafarer where there has been injury or death. The POEA “Standard Terms and Conditions Governing the Employment of Filipino Seafarers On-Board Ocean-Going Vessels” were incorporated into Buton’s employment contract. In late August 2002, Buton was flown to Singapore to sign on board the Rainbow Joy, which was anchored in Singapore waters at the material time.

4 It is not uncommon for shipowners to enter into two agreements with Filipino seafarers, the first in the approved POEA form to comply with Filipino requirements, and the second, to satisfy other legal requirements. In the present case, apart from the POEA contract executed in the Philippines, another employment contract (“the Hong Kong contract”) was signed between the shipowner and Buton to comply with the laws of Hong Kong. As such, the terms of Buton’s contract of employment are to be found in both the POEA contract and the Hong Kong contract.

5 On 3 September 2003, while the Rainbow Joy was off the coast of Myanmar, Buton was asked by the ship’s chief engineer to help repair the starboard side accommodation ladder that had been bent in a collision with a docked vessel. A number of the ship’s crew took turns to hit the bent ladder with a ball hammer. While the chief engineer was hammering the ladder, a shard of metal was dislodged and it hit Buton’s right eye. As a result, he sustained a corneal laceration.

6 On the following day, the Rainbow Joy deviated to Yangon, the nearest major port, to enable Buton to seek urgent medical attention. After examining him, Dr U Mya Aung, an ophthalmologist surgeon at the Eye Hospital and Myittar Oo Eye Care Centre, advised him to have surgery done in his “home country”, where there are better medical facilities. On 5 September 2003, Buton returned to the ship, which sailed for Singapore on the following day. According to the shipowner, Buton told the master of the ship that he wanted to return to the Philippines for further treatment. However, Buton claimed that he wanted to be treated in Singapore. This was denied by the shipowner.

7 The Rainbow Joy arrived at Singapore on 9 September 2003. On the following day, Buton was flown to Manila for medical treatment. In Manila, he received treatment at the Metropolitan Hospital immediately. On 11 September 2003, the hospital reported as follows:

Our specialist recommends pars plana vitrectomy, removal of cataract and repair of corneal laceration as soon as possible to try to prevent permanent damage to his injured eye.

8 On 10 December 2003, the hospital reported as follows:

Our specialist recommends corneal transplant with secondary intraocular lens implant for management.

He is to come back on January 7 2004 for re-evaluation.

9 The next hospital report dated 26 April 2004 merits attention. It was as follows:

We have informed Mr Buton that a cornea is already available for his corneal transplant. However, he explained that he has not talked yet with his wife regarding the surgery.

The corneal graft will therefore be given to the next patient in line and his chance for another corneal donor might already be in the next 3 months (August 2004).

10 Finally, on 28 April 2004, the hospital reported as follows:

[Buton] missed his chance for corneal transplant because he has yet to talk with his wife.

He was advised to wait for the next available corneal donor.

11 Buton’s condition deteriorated. He claimed that at present, he is only able to see silhouettes and blurred images with his right eye.

12 Buton first made a claim for compensation for his loss and suffering in the Philippines by commencing arbitration proceedings before the National Labour Relations Commission on 5 November 2003. Subsequently, he initiated the present proceedings in Singapore on 30 December 2003. It is worth noting that while the Writ of Summons was served on the Rainbow Joy in Singapore, the ship was not arrested as Buton’s Filipino lawyers, the instructing solicitors, were not prepared to give an undertaking to the Sheriff to pay the latter’s expenses and his Singapore lawyers were not prepared to give a cross-undertaking to the Sheriff with respect to the arrest of the ship.

13 On 15 January 2004, Buton withdrew his claim in the Philippines. In the meantime, the shipowner applied for a stay of the Singapore action on a number of grounds, including forum non conveniens. The assistant registrar was persuaded that the Singapore action ought to be stayed on the ground of forum non conveniens. Buton appealed against his decision.

The appeal

14 The shipowner contended that the Singapore action should be stayed for three reasons. First, Buton was required by the POEA contract to resolve his differences with the shipowner through arbitration in the Philippines. Secondly, the POEA contract contained an exclusive jurisdiction clause, requiring proceedings to be commenced in the Philippines and as Buton failed to satisfy the test in Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd [1975–1977] SLR 258, he should not be allowed to continue the Singapore proceedings. Thirdly, the action should be stayed on the ground of forum non conveniens. The assistant registrar did not find it necessary to consider the first two of the shipowner’s grounds for a stay of the proceedings as he was...