The "Seaway"

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 29 November 2004
• Neutral Citation: [2004] SGCA 57
• Docket Number: Civil Appeal No 35 of 2004
• Date: 29 November 2004
• Published date: 30 November 2004
• Year: 2004
• Plaintiff Counsel: Steven Chong SC and Loh Wai Yue (Rajah and Tann)
• Citation: [2004] SGCA 57
• Defendant Counsel: S Mohan and Bernard Yee (Gurbani and Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether court may refer to extrinsic materials when interpreting statutory provision,Section 136(1)(d) Merchant Shipping Act (Cap 179, 1996 Rev Ed),Statutory Interpretation,Section 9A Interpretation Act (Cap 1, 2002 Rev Ed), s 136(1)(d) Merchant Shipping Act (Cap 179, 1996 Rev Ed),Admiralty and Shipping,Statutory provision not ambiguous or inconsistent,Appellant suing respondent for negligence,Whether respondent's liability for damage caused to appellant's wharf subject to statutory limitation,Respondent's vessel colliding with appellant's wharf,Limitation action,Purposive approach,Construction of statute,Collision

29 November 2004 Judgment reserved.

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

1 This appeal relates to the interpretation of s 136(1)(d) of the Merchant Shipping Act (Cap 179, 1996 Rev Ed) (“the MSA”) which was raised as a preliminary issue pursuant to an application made by the appellant herein under O 14 r 12 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed). The answer to the issue will determine whether the respondent is entitled to benefit from the limitation of liability prescribed in that section in relation to an incident where the vessel of the respondent, Seaway, damaged a wharf of the appellant.

The facts

2 The appellant, Shell Eastern Petroleum (Pte) Ltd, is the owner of an oil terminal at Pulau Bukom, a small island to the south of the main Singapore island. On 6 May 2002, the Seaway, in the course of navigation, collided with and damaged the appellant’s wharf No 8. The loss suffered by the appellant was estimated at $16.15m. As a result, an action was brought by the appellant against the respondent as the owner of Seaway for the negligence of its servants or agents in the operation of the vessel.

3 Two pleas were entered by the respondent. First, it denied that its servants were negligent in the operation of the vessel. Second, it averred that, even if its servants were negligent, it was entitled to rely upon s 136(1)(d) of the MSA to limit its liability to only $607,927.68. The court was asked to determine, as a preliminary point, whether the respondent was indeed entitled to rely on the statutory limitation.

4 The issue came before the Assistant Registrar Tai Wei Shyong who ruled in favour of the respondent. On appeal by the appellant, Belinda Ang J upheld the determination, but on a different ground (see [2004] 2 SLR 577). The appellant has further appealed to us.

Statutory provisions

5 It will be expedient at this juncture to set out the relevant provisions of s 136(1) of the MSA:

The owner of a ship shall not, where all or any of the following occurrences take place without his actual fault or privity:

(a) where any loss of life or personal injury is caused to any person being carried in the ship;

(b) where any damage or loss is caused to any goods, merchandise or other things whatsoever on board the ship;

(c) where any loss of life or personal injury is caused to any person not carried in the ship through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship or in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers, or through any other act or omission of any person on board the ship; and

(d) where any loss or damage is caused to any property (other than any property mentioned in paragraph (b)) or any right is infringed through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship, or in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers, or through any other act or omission of any person on board the ship,

be liable to damages beyond the following amounts:

(i) …

(ii) in respect of such loss, damage or infringement as is mentioned in paragraphs (b) and (d), whether there is loss of life or personal injury or not, an aggregate amount not exceeding in the currency of Singapore the equivalent of 1,000 gold francs for each ton of the ship’s tonnage.

[emphasis added]

6 It will be noted that s 136(1)(d) is applicable to two situations, namely,

(a) where any loss or damage is caused to any property, other than any goods, merchandise or other things on board the ship (“first limb”); or

(b) where any right is infringed (“second limb”),

through the act or omission of any person in the navigation or management of the ship.

7 We should at the outset point out that the limitation of liability provided for in s 136 is only available to the owner of the vessel if the occurrence giving rise to the liability happened without the owner’s “actual fault or privity”. If it was due only to the negligence of the employees operating the ship, the owner will be entitled to rely on the statutory limitation of liability.

8 At the hearing below, the respondent took the position, as it has done before us, that the damage caused to the appellant’s wharf by the respondent’s servant’s operation of the vessel fell within the scope of either of the two limbs of s 136(1)(d) and thus it should be entitled to the benefits of the limitation of liability prescribed under s 136(1), with the quantum to be computed in accordance with the tonnage of the vessel. The appellant contended otherwise and relied on the fact that but for an amendment Act enacted in 1981, there would have been a subsection (4) to s 136 and that the repeal of that subsection made all the difference.

9 At this juncture, it is necessary for us to trace the developments of s 136. The Merchant Shipping Ordinance (“the MSO”), a piece of legislation to consolidate and amend the law relating to merchant shipping, was introduced as a part of the law of Singapore in 1912. It was in pari materia with the UK Merchant Shipping Act 1894 (c 60) as amended by the Shipping (Liability of Shipowners and Others) Act 1900 (c 32).

10 In 1958, the UK accepted the International Convention Relating to the Limitation of Liability of Owners of Sea-Going Ships 1957 (“the 1957 Convention” or “the Convention” as may be appropriate) with a reservation on Art 1(1)(c). To give effect to the Convention, the UK enacted the Merchant Shipping (Liability of Shipowners and Others) Act 1958 (c 62) (“the 1958 UK Act”).

11 Article 1 of the 1957 Convention provides:

(1) The owner of a sea-going ship may limit his liability in accordance with Article 3 of this Convention in respect of claims arising from any of the following occurrences, unless the occurrence giving rise to the claim resulted from the actual fault or privity of the owner:

(a) loss of life of, or personal injury to, any person being carried in the ship, and loss of, or damage to, any property on board the ship;

(b) loss of life of, or personal injury to, any other person, whether on land or on water, loss of or damage to any other property or infringement of any rights caused by the act, neglect or default of any person on board the ship for whose act, neglect or default the owner is responsible or any person not on board the ship for whose act, neglect or default the owner is responsible …

(c) any obligation or liability imposed by law relating to the removal of wreck and arising from or in connection with the raising, removal or destruction of any ship which is sunk, stranded or abandoned (including anything which may be on board such ship) and any obligation or liability arising out of damage caused to harbour works, basins and nagivable waterways.

…

(3) An owner shall be entitled to limit his liability in the cases set out in paragraph (1) of this Article even in cases where his liability arises, without proof of negligence on the part of the owner or of persons for whose conduct he is responsible, by reason of his ownership, possession, custody or control of the ship.

[emphasis added]

12 Unlike the position in Australia, the UK did not reproduce Art 1 of the Convention as part of its domestic law. Instead, it formulated its own provisions to give effect to it. More will be said about this later.

13 A few years later, in April 1963, the UK acceded to the 1957 Convention on behalf of Singapore, which was then a British Colony. However, what is of interest to note is that before the UK had formally made the Colony of Singapore a party to the Convention, the Legislative Assembly of Singapore had already, following the 1958 UK Act, by the Merchant Shipping (Amendment No 2) Ordinance 1959, repealed the then s 340 of the MSO and substituted in its place a new s 340. This new s 340(1) was in substance the same as what we see now in s 136(1), except that what were then ss 340(4) and 340(8) (reproduced in [30] below) were repealed by an amendment Act of 1981.

14 The first revised edition of the statutes of the independent Republic of Singapore was brought into being in 1970 and what was s 340 of the MSO was renumbered as s 295 in the Merchant Shipping Act (Cap 172, 1970 Rev Ed) (“the MSA 1970”). This 1970 revised edition did not bring about any material change to the provisions of s 295.

15 In September 1977, Singapore, as a sovereign independent state, by a formal instrument, informed Belgium, the depositary government of the 1957 Convention, that Singapore declared itself bound by the Convention with two reservations. The first was the right to exclude the application of Art 1(1)(c) and the second was to reserve unto itself the right to exclude the limitation of liability provisions for ships of less than 300 tons.

16 In 1981, by Act No 6 of 1981 (“the 1981 amendment Act”), what were then ss 295(4) and 295(8) of the MSA 1970 (previously ss 340(4) and 340(8) of the MSO) were repealed. These repeals were wholly consistent with the first reservation made by Singapore upon its formal accession to the Convention.

Decision below

17 The trial judge held that the respondent could not rely upon the first limb of s 136(1)(d) to limit its liability in relation to the damage caused to the wharf of the appellant by the Seaway. In coming to her conclusion, the trial judge had regard to the following:

(a) That the court was entitled to look into the historical development of s 136 as an aid in determining the meaning to be ascribed to the word “property” in s 136(1)(d) even though on the face of it, the meaning of that word was not ambiguous.

(b) The aim of the Legislature in repealing s 295(4) of the MSA 1970, which was previously s 340(4) in the MSO, was enunciated by the Minister in his statement to Parliament as follows:

The amendment to the section on Limitation of...