The "Seaway"

• Jurisdiction: Singapore
• Judgment Date: 30 December 2003
• Date: 30 December 2003
• Docket Number: Admiralty in Rem No 600162 of 2002 (Registrar's Appeal No 600019 of 2003)
• Court: High Court (Singapore)

The “Seaway”

[2003] SGHC 315

Belinda Ang Saw Ean J

Admiralty in Rem No 600162 of 2002 (Registrar's Appeal No 600019 of 2003)

High Court

Admiralty and Shipping–Collision–Limitation action–Whether defendants' liability for damage to plaintiff's wharf limited–Sections 136 (1) (b), (d) Merchant Shipping Act (Cap 179, 1996 Rev Ed)–Statutory Interpretation–Construction of statute–Extrinsic aids–Whether plain language rule of statutory interpretation inapt in the circumstances–Whether necessary to refer to legislative history as aid to interpretation

This was an appeal from the decision of an assistant registrar. It raised a point of statutory interpretation with regard to s 136 of the Merchant Shipping Act (Cap 179, 1996 Rev Ed) (“the MSA”).

The plaintiff, Shell Eastern Petroleum (Pte) Ltd, owned the Pulau Bukom oil terminal, where there were berthing facilities for vessels using the terminal. The defendants were the registered owners of the dredger Seaway, which collided with and damaged the plaintiff's wharf no 8 while being navigated by the defendants' servants.

The specific question was whether the plaintiff's claim for damages fell within the ambit of s 136 (1) (d) of the MSA.

Held, dismissing the appeal:

(1) With regard to the first limb, as a matter of language, a jetty or wharf could be described as “harbour works” which, in turn, would fall within the meaning of “property”. However, the circumstances of this case made the plain language rule of statutory interpretation inapt: at [13] and [17].

(2) In this particular case, it was necessary to refer to the legislative history as an aid to interpretation. In 1981, what was then s 295 (4) of the Merchant Shipping Act (Cap 172, 1970 Rev Ed) was amended to give effect to Singapore's 1977 reservation to Art 1 (1) (c) of the International Convention Relating to the Limitation of Liability of Owners of Sea-Going Ships (“the 1957 Convention”). The effect of this amendment was to remove “harbour works” from the meaning of “property” in the old s 295 (1) (d), which was in pari materia with the present s 136 (1) (d). This applied to both private and public harbour works: at [17], [27] and [36].

(3) On the other hand, the defendants satisfied the requirement in the second limb of s 136 (1) (d). The right infringed was the plaintiff's proprietary right as legal owner at the time the loss or damage occurred. That proprietary right was adversely affected by the negligence of those on board the Seaway. Therefore, the defendants were entitled to claim limitation of liability under this limb: [48] to [49].

A R Appelqvist A/B v The Cyprian Coast (Owners) (“The Arabert”) [1963] P 102 (distd)

Arcadia Spirit, The [1988] 1 SLR (R) 73; [1988] SLR 244 (distd)

Baremeda Enterprises Pty Ltd v Ronald Patrick O'Conner (“The Tiruna and Pelorus”) [1986] 2 Lloyd's Rep 536 (refd)

Caltex Singapore Pte Ltd v BP Shipping Ltd [1996] 1 Lloyd's Rep 286 (distd)

Comfort Management Pte Ltd v PP [2003] 2 SLR (R) 67; [2003] 2 SLR 67 (folld)

Fothergill v Monarch Airlines Ltd [1981] AC 251 (refd)

Great Western Railway Company v Owners of SS Mostyn (“The Mostyn”) [1928] AC 57 (refd)

Keane v An Bord Pleanála [1997] 1 IR 184 (refd)

Maritime Prudence, The [1995] 3 SLR (R) 613; [1996] 1 SLR 168 (refd)

Nokes v Doncaster Amalgamated Collieries, Limited [1940] AC 1014 (folld)

Planmarine AG v Maritime and Port Authority of Singapore [1999] 1 SLR (R) 669; [1999] 2 SLR 1 (folld)

Putbus, The [1969] P 136 (distd)

Regina v Ireland [1998] AC 147 (refd)

Regina v Secretary of State for the Environment, Transport and the Regions, Ex ParteSpath Holme Ltd [2001] 2 AC 349; [2001] 2 WLR 15 (folld)

River Wear Commissioners, The v William Adamson (1877) 2 App Cas 743 (folld)

Stonedale No 1 v Manchester Ship Canal Co (“The Stonedale No 1”) [1956] AC 1 (refd)

Universal City Studios Incorporated v Gerard Mulligan (No 1) [1999] 3 IR 381 (folld)

Yusen Air & Sea Service (S) Pte Ltd v Changi International Airport Services Pte Ltd [1999] 3 SLR (R) 95; [1999] 4 SLR 135 (folld)

Interpretation Act (Cap 1, 2002Rev Ed)s 9A

Merchant Shipping Act (Cap 172, 1970Rev Ed)ss 295 (1) (d), 295 (4),295 (8)

Merchant Shipping Act (Cap 179, 1996Rev Ed)ss 136 (1) (b), 136 (1) (d) (consd)

Merchant Shipping (Amendment) Act (No 6 of 1981)

Merchant Shipping (Amendment) Bill (No 2 of 1981)

Merchant Shipping (Amendment No 2) Ordinance 1959 (Ord 74 of1959)

Merchant Shipping Ordinance (Cap 207, 1955Rev Ed)ss 340 (1) (b),340 (1) (d),340 (4) (a),340 (4) (b),340 (8)

Port of Singapore Authority Act (Cap 173, 1970Ed)s 26

Port of Singapore Authority (Amendment) Act 1986 (No 25 of1986)s 9

Harbour, Docks and Piers Clauses Act 1847 (UK)s 74

Merchant Shipping (Liability of Shipowners and Others) Act 1958 (UK)ss 2 (2) (a),2 (5)

Merchant Shipping Act1894 (UK)s 503

Steven Chong SC and Loh Wai Yue (Rajah & Tann) for the plaintiffs/appellants

S Mohan and Bernard Yee (Gurbani & Co) for the defendants/respondents.

Judgment reserved.

Belinda Ang Saw Ean J

1 The present appeal raises a point of statutory interpretation. Under s 136 of the Merchant Shipping Act (Cap 179, Rev Ed 1996) (“MSA”), a shipowner is entitled to limit its liability for specific areas of liability unless the occurrence giving rise to the claim resulted from the “actual fault or privity” of the shipowner. The preliminary issue in this appeal is not about the “actual fault or privity”of the shipowner, but is with the narrower issue of whether the plaintiff's claim falls within the ambit s 136 (1) (d) of the MSA as a claim for loss or damage to the plaintiff's wharf no 8 or an infringement of the plaintiff's right. I gather from counsel that if the defendants succeed on this preliminary issue, it may well do away with any practical need for a liability action thereby saving time and costs.

2 The plaintiff is Shell Eastern Petroleum (Pte) Ltd. It is the owner of the oil terminal at Pulau Bukom where there are berthing facilities for vessels that use the oil terminal. On 6 May 2002, the defendants' dredger Seaway, while being navigated by the defendants' servants, collided with and damaged one of the plaintiff's wharves. In these proceedings, the defendants are sued as the registered owners of the Seaway. The plaintiff's claim is for damages for the negligent damage to the plaintiff's wharf no 8. Damages to wharf no 8 have been particularised at $16.15m.

3 The defendants have denied liability in respect of the collision damage. In the alternative, the defendants have pleaded limitation of liability under s 136 of the MSA as a defence to the plaintiff's claim for damage to wharf no 8 and consequential losses. According to the defendants' calculations, tonnage limitation is $607,927.68.

4 It is worthwhile setting out the relevant provisions of s 136:

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

   …

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

…

1. (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 through any other act or omission of any person on board the ship,

be liable to damages beyond the following amounts:

…

1. (ii) in respect of such loss, damage or infringement as is mentioned in paragraphs (b) and (d), … 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.

5 It is not seriously disputed that the collision damage was due to:

(a) an act of a person on board the Seaway, or

(b) an act in the navigation or management of the Seaway.

In fact, the plaintiff's case is that the collision was caused solely by the negligence of the defendants, their servants or agents in the navigation and management of the Seaway. The primary issue is whether the defendants could limit their liability on the basis that the loss or damage was caused to property other than any property mentioned in s 136 (1) (b). Alternatively, the defendants say they are entitled to rely on the second limb of s 136 (1) (d) as rights have been infringed through the “act or omission of any person … in the navigation or management” of the Seaway. This alternative argument is raised for the first time on appeal.

6 Briefly, Mr S Mohan, on behalf of the defendants, submits that the plaintiff's claim for damage to wharf no 8 and for consequential losses is an occurrence that is subject to s 136 (1) (d). Taking the provision at face value, the word “property” in para (d) is clear and unambiguous and given its ordinary and natural meaning, the plaintiff's wharf would fall within the meaning of “property”. Section 136 (1) (d) refers to “any property (other than any property mentioned in paragraph (b))” and s 136 (1) (b) refers to “goods, merchandise or other things whatsoever on board the ship” of the owner who is seeking to limit his liability. Apart from that, no other distinction is drawn between the different types of property by the section. It has been pointed out that para (d) does not list “harbour works, basins or navigable waterway” together with the words in parenthesis namely “other than any property mentioned in paragraph (b)”. The court must take the provision as it finds it and hence the interpretation ascribed by Mr Mohan ought to be adopted.

7 Mr Mohan referred me to The Arcadia Spirit [1988] 1 SLR (R) 73 and Caltex Singapore Pte Ltd v BP Shipping Ltd [1996] 1 Lloyd's Rep 286. I do not see how these two cases support Mr Mohan's contention that it is settled law and practice for more than twenty years that damage done to a privately owned quay or other shore...