The ‘Reecon Wolf’

• Jurisdiction: Singapore
• Judgment Date: 31 January 2012
• Date: 31 January 2012
• Docket Number: Admiralty in Rem No 157 of 2010 (Registrar's Appeal No 94 of 2011)
• Court: High Court (Singapore)

The ‘Reecon Wolf’

[2012] SGHC 22

Belinda Ang Saw Ean J

Admiralty in Rem No 157 of 2010 (Registrar's Appeal No 94 of 2011)

High Court

Admiralty and Shipping—Admiralty jurisdiction and arrest—Stay of action proceedings—Principles applicable in stay application in admiraltyin rem action—Whether applicable principles were that of Spiliada test

Conflict of Laws—Natural forum—Forum non conveniens—Plaintiff applied to stay Malaysian action—Defendant applied to stay Singapore action—Stay of Malaysian action refused by Malaysian court—Whether place of tort in Malaysia warranting stay of Singapore action—Whether real risk of conflicting judgments warranting stay of Singapore action—Whether international comity a relevant consideration warranting stay of Singapore action—Whether Malaysia was natural forum to hear dispute

Conflict of Laws—Natural forum—Stage one of Spiliada test—Collision of both vessels occurred in Malaysian territorial waters—Prima facie position that place of tort was natural forum—Whether presumption displaced

Conflict of Laws—Natural forum—Stage one of Spiliada test—International comity—Malaysian and Singapore actions at similar stage and not very advanced—Malaysia applying Spiliada principles—Stay of Malaysian action refused by Malaysian court—Whether international comity a relevant consideration in avoiding risk of conflicting judgments

Conflict of Laws—Natural forum—Stage one of Spiliada test—Multiplicity of proceedings—Malaysian and Singapore actions at similar stage and not very advanced—Substantial overlap of legal principles and issues to be resolved in Malaysian and Singapore actions—Stay of Malaysian action refused by Malaysian court—Whether real risk of conflicting judgments

Conflict of Laws—Natural forum—Stage two of Spiliada test—Whether dichotomy of limits of liability for different limitation regimes a personal or juridical advantage

The plaintiff's vessel, the Capt Stefanos, collided with the defendant's vessel, the Reecon Wolf, in the Straits of Malacca. The defendant commenced an in rem action in the High Court of Malaya and arrested the Capt Stefanos. The plaintiff, wishing to establish jurisdiction in Singapore, arrested theReecon Wolf in Singapore thereafter. The respective ships were released when security was furnished. The plaintiff applied to the High Court of Malaya at Malacca to stay the Malaysian action in favour of Singapore. In response, the defendant applied in the Singapore High Court to stay the Singapore action in favour of Malaysia.

The assistant registrar (‘AR’) hearing the defendant's stay application dismissed the application.

In the course of hearing this appeal, the plaintiff's counsel highlighted a development which had not yet taken place when the AR heard the matter, that is, the dismissal of the Malaysian stay application.

Held, allowing the appeal:

(1) In considering an application to stay proceedings on grounds of forum non conveniens, the principles to be applied were that enunciated in the Spiliada Maritime Corporation v Cansulex [1987] AC 460(‘Spiliada’). The Spiliadaprinciples involved a two-stage process. At Stage one, it had to be determined if there was an available forum which was clearly or distinctly more appropriate to try the case in. A stay would be granted if there was such a forum, unless circumstances existed where justice required that a stay should not be granted. This would be the inquiry at Stage two where all circumstances of the case would be considered: at [14] and [18].

(2) The Spiliada principles and the court's discretion to stay were unaffected even though the proceedings concerned were in rem. Regardless of whether a party might have founded jurisdiction as of right, the approach still remained that of the ‘more appropriate forum’ test: at [19].

(3) In Stage one, it was only a prima facie position that the place where the tort was committed was the natural forum; the court would consider if other factors displaced this initial position. In the present case, theprima facie position was not so displaced. In determining the place of the tort, the focus ought to be on where the cause of action arose. Here, physical damage was occasioned when the vessels collided in Malaysian territorial waters: at [16], [49]and [50].

(4) Multiplicity of proceedings was a relevant factor in the evaluation of the forum's appropriateness under Stage one. But the weight given to this factor depended on all the circumstances of the case, such as the state of advance of the foreign action, consequences of ongoing proceedings including inconvenience, expenses and the risk of conflicting judgments. In the present case, while the in rem jurisdiction was invoked as of right in the Singapore and Malaysian actions and the status of both proceedings were not very advanced; the existence of the concurrent actions was a compelling concern. There was substantial overlap in both actions in terms of the principles of law involved, causes of action concerned and the resolution of factual issues relating to liability. Additionally, the plaintiff's failure to obtain a stay of the Malaysian action was relevant in determining that a real risk of conflicting judgments existed in the circumstances: at [17] and [47].

(5) International comity was of great concern to the court in its exercise of its discretion to stay proceedings generally where there were two concurrent actions; the risk of inconsistent decisions would be avoided if one court stayed one of the actions in the interest of international comity. This was so long as an application of the forum non conveniensprinciples in the Spiliada showed that the foreign court could reasonably conclude that it was the forum to resolve the dispute, there being no more appropriate alternative forum. In the present case, Malaysia applied the Spiliadaprinciples. The Malaysian court's decision, upon applying these principles, not to stay the Malaysian action ought to be given regard to in view of international comity: at [24], [51] and [52].

(6) The existence of different limitation regimes with a dichotomy of statutory limits applying was not considered a personal or juridical advantage under Stage two. In the present case, while Singapore adopted the Convention on Limitation of Liability for Maritime Claims 1976 which provided for higher limits of liability than the International Convention relating to Limitation of Liability of Owners of Sea-going Ships 1957 adopted by Malaysia, this did not present a personal or juridical advantage in favour of the plaintiff under Stage two: at [35] and [55].

[Observation: Admiralty jurisdiction was frequently allied to the notion of forum shopping. Forum shopping appeared in two instances in the admiralty context. One would be a ship arrest in a foreign jurisdiction if the ship or sister ship was found in a country which had adopted the International Convention on Arrest of Seagoing Ships 1952. Another would concern the limitation of liability for maritime claims because of the dichotomy of limitation of liability regimes in different jurisdictions: at [35].]

Abidin Daver, The [1984] AC 398; [1984] 1 Lloyd's Rep 339 (refd)

Amchem Products Inc v British Columbia (Workers' Compensation Board) [1993] 1 SCR 897 (folld)

Atlantic Star, The [1974] AC 436 (refd)

Chan Chin Cheung v Chan Fatt Cheung [2010] 1 SLR 1192 (refd)

CIMB Bank Bhd v Dresdner Kleinwort Ltd [2008] 4 SLR (R) 543; [2008] 4 SLR 543 (refd)

De Dampierre v De Dampierre [1988] AC 92 (refd)

Evergreen International SA v Volkswagen Group Singapore Pte Ltd [2004] 2 SLR (R) 457; [2004] 2 SLR 457 (refd)

First National Bank of Boston v Union Bank of Switzerland [1990] 1 Lloyd's Rep 32 (refd)

Goh Suan Hee v Teo Cher Teck [2010] 1 SLR 367 (refd)

Gulf Oil Belgian SA v Finland Steamship Co Ltd (The Wellamo) [1980] 2 Lloyd's Rep 229 (refd)

JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391 (refd)

Lanka Athula, The [1991] 1 HKC 101 (refd)

Meadows Indemnity Co Ltd v Insurance Corp of Ireland Ltd [1989] 1 Lloyd's Rep 181 (refd)

Ming Galaxy, The Owners of the Ship or Vessel v The Owners of the Ship or Vessel or Property Herceg Novi [1998] SGHC 303 (folld)

Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077 (refd)

Peng Yan, The [2009] 1 HKLRD 144 (refd)

Polessk, The [1996] 2 Lloyd's Rep 40 (refd)

Q&M Enterprises Sdn Bhd v Poh Kiat [2005] 4 SLR (R) 494; [2005] 4 SLR 494 (refd)

Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR (R) 377; [2007] 1 SLR 377 (refd)

Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (folld)

Varna (No 2) , The [1994] 2 Lloyd's Rep 41 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 70 r 28

Official Secrets Act 1972 (Act 88) (M'sia)

S Mohan and Bernard Yee (Incisive Law LLC) for the defendant

John Seow and Vellayappan Bala (Rajah & Tann LLP) for the plaintiff.

Belinda Ang Saw Ean J

Introduction

1 This Registrar's Appeal No 94 of 2011 (‘RA 94’) was from the decision of the assistant registrar refusing to stay an admiralty action between foreigners arising from a collision between foreign vessels of different nationalities in the Straits of Malacca.

In remproceedings: Achronology

2 The plaintiff's vessel, the Capt Stefanos, was in collision with the defendant's vessel, the Reecon Wolf, on 21 August 2010 at 1748 hours in the Straits of Malacca. The defendant commenced an in rem action in the High Court of Malaya at Malacca and arrested the plaintiff's vessel, the Capt Stefanos, on 24 August 2010. The plaintiff secured her release by providing security in the form of a letter of undertaking furnished by North of England P&I Club Association Ltd. TheCapt Stefanos was released from arrest in Malacca on 30 August 2010. For ease of reference, the short title of the defendant's in rem action against theCapt Stefanos is Admiralty in Rem No 27-1-2010 (‘the Malaysian Action’)...