The "Trade Fair"

• Jurisdiction: Singapore
• Judge: G P Selvam JC
• Judgment Date: 31 December 1993
• Neutral Citation: [1993] SGHC 313
• Docket Number: Admiralty in Rem No 811 of 1992
• Date: 31 December 1993
• Year: 1993
• Published date: 19 September 2003
• Plaintiff Counsel: Liew Teck Huat (Niru & Co)
• Citation: [1993] SGHC 313
• Defendant Counsel: Chan Leng Seng (Ang & Pnrs)
• Court: High Court (Singapore)
• Subject Matter: Action in rem,s 3(1)(f) High Court (Admiralty Jurisdiction) Act (Cap 123),Admiralty jurisdiction and arrest,Indemnity claim in respect of compensation paid under the Workmen's Compensation Act (Cap 354),Admiralty and Shipping

The question

The question for determination in this appeal was the extent of the jurisdiction of this court under s 3(1)(f) of the High Court (Admiralty Jurisdiction) Act (Cap 123). The section gives jurisdiction to the High Court to hear and determine the following questions or claims:

Any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship.

The circumstances of the case as asserted by the plaintiffs are as follows. On or about 1 April 1988 a cargo of bagged soybean meal (`the cargo`) was loaded into No 3 deep tank of the defendants` motor vessel, Trade Fair, (`the vessel`) at Shanghai, for carriage to and discharge at Singapore. Upon completion of loading of the cargo, the No 3 deep tank hatch cover was closed and secured. The vessel finally departed Shanghai on or about 14 April arriving at Singapore on or about 22 April 1988. The plaintiffs, a company engaged in stevedoring business, were engaged by the defendants to discharge the cargo.

At about 0815 hours on 26 April 1988, No 3 deep tank hatch cover was opened. Shortly thereafter, Teo Kuan Joon, Lim Ley and Ku Kim (`the stevedores`), who were employees of the plaintiffs within the meaning of the Workmen`s Compensation Act (Cap 354), entered No 3 deep tank for the purpose of discharging the cargo. Upon entering the tank all three men suffered hypoxia, as a consequence of which they immediately collapsed and subsequently died.

By reason of the aforesaid deaths, the plaintiffs, as the employers of the deceased, became liable to and did pay compensation in the sum of $45,000 in respect of each death pursuant to the provisions of the Workmen`s Compensation Act.

Following the closing and securing of the No 3 deep tank hatch cover on or about 1 April 1988, that tank remained sealed until opened at Singapore at about 0815 hours on 26 April. Between 1 and 26 April 1988, the No 3 deep tank had not been ventilated, either mechanically or otherwise. A large number of the bags of cargo were damp and mouldy. The internal walls of the No 3 deep tank were covered with rust. The concentration of oxygen in the atmosphere in No 3 deep tank was only 2.5% whereas the concentration of carbon dioxide was 7,000 ppm. (The concentration of these two gases in the normal atmosphere is about 20.9% and 330 ppm respectively).

The plaintiffs then made the following allegations against the defendants. The death of the three stevedores was caused by hypoxia, the concentration of oxygen in the atmosphere in No 3 deep tank having been severely reduced by reason of microbiological activity within the cargo and/or oxidation of the cargo and/or the internal walls of No 3 deep tank. The said reduction of the concentration of oxygen in the atmosphere in No 3 deep tank and the consequent death of the three stevedores was caused solely by the negligence of the defendants, their servants or agents. The defendants would have been liable in damages to the stevedores and/or their legal personal representatives and/or their dependants for the death of the stevedores. The plaintiffs are entitled to be indemnified by the defendants pursuant to s 18(b) of the Workmen`s Compensation Act in the sum of $135,000.

On 5 August 1988, the Standard Steamship Owners` Protection and Indemnity Association (Bermuda) Ltd furnished security in the form of a letter of undertaking to answer the plaintiffs` claim. The letter of undertaking was addressed to the plaintiffs as well as the deceased or their legal representatives and Provincial Insurance Public Ltd Co, the plaintiffs` insurers. The letter of undertaking was confined to answering any sum that may be adjudged to be due from the owners of the ship by the High Court of Singapore in exercise of its in rem jurisdiction.

On 26 November 1992 the plaintiffs commenced this in rem action against the Trade Fair. The statement of claim sets out the assertions outlined above.

In essence the plaintiffs` claim is for indemnity based on liability for fault under s 18(b) of the Workmen`s Compensation Act. The section reads as follows:

Where any injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof -

(b) if the workman has recovered compensation under this Act, the person by whom the compensation was paid, and any person who has been called upon to pay an indemnity under section 17(2), shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.

An appearance was entered for the owners of the Trade Fair on 10 July 1993 and, on 21 July 1993, an application was filed seeking an order that the writ of summons be set aside on the ground that the claim did not come within the in rem admiralty jurisdiction of the court. As a consequential order, the defendants sought the return of the letter of undertaking for cancellation.

The application was heard by an assistant registrar who granted the order sought and fixed the costs at $2,500 to be paid by the plaintiffs to the defendants. The plaintiffs appealed against that decision. I allowed the appeal and shall now state the grounds of my decision.

To elucidate the position, it is necessary to travel back in time a little and trace the history of the court`s jurisdiction in respect of claims for loss of life. The original admiralty jurisdiction of the English admiralty court was confined to all torts committed on the high seas (ie damage done by a ship), salvage, wages of seamen and possession and hypothecation of ships. The first three of those claims possessed the attribute of a maritime lien.

Every other jurisdiction of the admiralty court was an extension of the above, or additions introduced by legislation. The Admiralty Court Act 1861 gave statutory recognition of jurisdiction in respect of the maritime tort committed by a ship. Section 7 of this Act provided that : `The High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship.` The word `damage` connoted a tort, that is damage caused by a fault of the ship.

Claims for loss of life were not permitted, both under common law and admiralty law. The rule was stated by Lord Ellenborough in Baker v Bolton , at p 1033:

The jury could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife`s society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution. In a civil court, the death of a human being could not be complained of as an injury; and in this case, the damages, as to the plaintiff`s wife, must stop with the period of her existence.

The common law position was partially redressed by the Fatal Accidents Act 1846 (`Lord Campbell`s Act`). This Act provided for a cause of action for the benefit of families of a person killed in an accident and against a person who negligently caused the death. Attempts to apply the Act to an action in rem were outlined in 1902 by Williams and Bruce in Jurisdiction and Practice of the English Courts in Admiralty Actions and Appeals at p 77:

Whether damage included

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