The "Vasiliy Golovnin"

JurisdictionSingapore
JudgeTan Lee Meng J
Judgment Date31 July 2007
Neutral Citation[2007] SGHC 116
Docket NumberAdmiralty in Rem No 25 of 2006 (Registrar's Appeals Nos 214 and 216 of 2006)
Date31 July 2007
Year2007
Published date01 August 2007
Plaintiff CounselVivian Ang, Kenny Yap and Leona Wong (Allen & Gledhill LLP)
Citation[2007] SGHC 116
Defendant CounselSteven Chong SC and Kohe Noor bte M Hasan (Rajah & Tann)
CourtHigh Court (Singapore)
Subject MatterO18 r 19 Rules of Court (Cap 322, R5, 2006 Rev Ed),Admiralty jurisdiction and arrest,Admiralty and Shipping,Whether case wholly and clearly unarguable,Arrest of vessel,Civil Procedure,Issue Estoppel,Striking out,Action in Rem,Disclosure of material facts,Whether arrest of a vessel in Singapore previously arrested in another jurisdiction and subsequently released by court order is an abuse of process

31 July 2007

Judgment reserved

Tan Lee Meng J

1 The second and third plaintiffs, Credit Agricole (Suisse) SA and Banque Cantonale De Geneve SA respectively (both referred to as “the banks”), who arrested a vessel, The Chelyabinsk, in Lome in Togo on 21 February 2006, arrested her sister ship, The Vasiliy Golovnin, in Singapore on 18 March 2006. On 10 July 2006, the defendant, Far Eastern Shipping Co Plc (“FESCO”), the owners of the two said vessels, managed to persuade the Assistant Registrar, Ms Ang Ching Pin (“AR Ang”), to set aside the warrant of arrest of The Vasiliy Golovnin and strike out the banks’ writ of summons. AR Ang did not award FESCO damages for the arrest of The Vasiliy Golovnin.

2 Two appeals were filed against AR Ang’s decision. In RA No 214 of 2006, the banks appealed against the setting aside of the arrest of The Vasiliy Golovnin and the striking out of their claim. In RA No 216 of 2006, FESCO appealed against AR Ang’s decision not to award damages for the arrest of The Vasiliy Golovnin.

Background

3 On 9 September 2005, FESCO chartered The Chelyabinsk (“the chartered vessel”) on amended New York Produce Exchange (NYPE) terms (“the head charterparty”) to Sea Transport Contractors Ltd (“STC”), who sub-chartered the said vessel, also on amended NYPE terms (“the sub-charterparty”), to Rustal SA (“Rustal”). The banks came into the picture because they provided financing to Rustal and held the bills of lading relied upon by the parties to the present proceedings.

4 Pursuant to the terms of the head charterparty, STC instructed the chartered vessel to load a cargo of 5,100 mt of Chinese rice at Nanjing for discharge at “any African port”. Three bills of lading were issued and all referred to the head charterparty dated 9 September 2005. Only one of these bills of lading is in issue in these proceedings and it required the cargo in respect of which it was issued to be discharged at “any African port” (“the African port bill of lading”).

5 After loading the Chinese rice, the chartered vessel was ordered to proceed to Kakinada, India, to load about 15,000 mt of Indian rice. Part of this cargo was discharged in Abidjan and only 9,000 mt of the Indian rice is relevant to the present proceedings. All the bills of lading for the 9,000 mt tons of Indian rice named Lome as the port of discharge.

6 After part of the Indian rice had been discharged in Abidjan, Rustal requested STC in early December 2005 to arrange for the switching of the remaining bills of lading in order to, among other things, alter the port of discharge from Lome to Douala in Cameroon. When requested by STC to effect the said switch, FESCO agreed to do so provided the original bills of lading were surrendered in exchange for the new bills of lading. The switch was scheduled to take place on 12 December 2005 at the office of FESCO’s chartering brokers in Surrey, England, but neither Rustal’s staff nor their agents turned up at the appointed place to effect the switch. As such, the original bills of lading were never switched.

7 Although STC initially instructed the chartered vessel to sail to Douala, it revoked its instructions to discharge the cargo at that port on 13 December 2005, and gave instructions that the chartered vessel was not to enter Douala or berth there without its consent. Apparently, STC had a dispute with Rustal with respect to the payment of hire for the chartered vessel and on 14 December 2005, STC instructed FESCO not to switch the bills of lading unless further ordered by it to do so. On 19 December 2005, STC instructed the vessel to proceed to Lome to discharge the cargo.

8 On 21 December 2005, FESCO received a request from M/s Waterson Hicks, the solicitors of Banque Cantonale de Geneve SA (“Banque Cantonale”), the third plaintiff in these proceedings, to discharge the cargo of rice at Douala on the basis of a letter of indemnity for the proposed change of the port of discharge. FESCO contended that in the light of the head charterer’s instructions and the fact that three of the four bills of lading for the cargo of rice named Lome as the port of discharge, it could not accede to Banque Cantonale’s request. Following FESCO’s refusal to accede to Banque Cantonale’s request, the latter’s solicitors sought confirmation that the cargo would be discharged in Lome in accordance with their clients’ instructions.

9 On 22 December 2005, STC applied for, and obtained from, the Lome Court an order (“Ruling No 2062/2005”) for the detention of 15,541 mt of rice on board the chartered vessel (“the STC Court Order”). Under this order, the cargo was to be detained in Lome as security for STC’s claim for unpaid hire against Rustal under the sub-charterparty. After the vessel arrived at Lome on 23 December 2005, she was served the STC Court Order.

10 Thereafter, several orders were issued by the Lome Court. On 24 December 2005, Rustal obtained an order from the Lome Court (“Ruling No 2081/2005”) to prevent the discharge of the cargo.

11 On 27 December 2005, STC obtained a court order (“Ruling No 2093/2005”) authorising the discharge of the cargo (“the discharge order”).

12 Thereafter, the banks took steps to have the discharge order set aside and reinstate Ruling No 2081/2005 that had been obtained by Rustal.

13 On 16 January 2006, the Lome Court set aside Ruling No 2081/2005 that had been obtained by Rustal and ordered the cargo to be discharged in Lome (“Ruling No 0023/2006”). The Court also found that STC was entitled to retain the cargo as security.

14 The banks and Rustal then obtained separate rulings for a temporary stay of execution of the ruling.

15 On 2 February 2006, the Lome Court ordered the lifting of the stay of execution of Ruling No 0023/2006, which enabled that the cargo be discharged in Lome. In view of this, FESCO commenced discharging operations. The discharge of the cargo was completed in mid-February 2006.

16 After the discharge of the cargo had been completed, the banks obtained a court order in Lome for the arrest of the chartered vessel on 21 February 2006 (“the Lome arrest order”).

17 On 24 February 2006, FESCO succeeded in having the arrest of the chartered vessel set aside by the Lome Court (“Ruling No 0164/2006”) (“the Lome Release Order”). The banks did not appeal to the Lome Court of Appeal against the Lome Release Order and the chartered vessel left Lome on 25 February 2006. The time allowed for an appeal against the Lome Release Order expired on 17 March 2006.

18 On 18 March 2006, the banks arrested The Vasiliy Golovnin, a sister vessel of the chartered vessel, in Singapore.

19 On 28 March 2006, the Lome Court of Appeal reversed Ruling No 0023/2006 and allowed the banks’ appeal against the order that the cargo be discharged in Lome. This had nothing to do with the Lome Release Order.

20 On 10 July 2006, upon FESCO’s application, the Assistant Registrar set aside the arrest of The Vasiliy Golovnin and struck out the banks’ writ against FESCO. As has been mentioned, she did not award FESCO damages for wrongful arrest of The Vasiliy Golovnin.

Setting aside the warrant of arrest and striking out the writ

21 The banks’ appeal in RA No 214 of 2006 against the setting aside of their warrant of arrest and the striking out of their writ will first be considered. AR Ang, who set aside the warrant of arrest and struck out the writ, found that there was non-disclosure or lack of disclosure of material facts at the ex parte hearing of the application for a warrant of arrest, issue estoppel and the lack of an arguable case by the banks against FESCO.

(i) Non-disclosure of material facts

22 In an ex parte application for a warrant of arrest of a vessel, the arresting party is obliged to make full and frank disclosure of all the material facts to the court. In The “Rainbow Spring” [2003] 3 SLR 362 at 376, Judith Prakash J, who delivered the judgment of the Court of Appeal, noted that as the arrest of a vessel is a drastic remedy given on an ex parte basis, the duty to make full and frank disclosure to the court is an important bulwark against the abuse of the arrest process.

23 In The “Damavand” [1993] 2 SLR 717 at 731, LP Thean J, as he then was, who delivered the judgment of the Court of Appeal, referred to the test of materiality for non-disclosure in the following terms:

[W]hether the fact is relevant to the making of the decision whether or not to issue the warrant of arrest, that is, a fact which should properly be taken into consideration when weighing all the circumstances of the case, though it need not have the effect of leading to a different decision being made.

24 FESCO contended that five material facts had not been disclosed by the banks to Assistant Registrar David Lee (“AR Lee”), who heard the ex parte application for the arrest of The Vasiliy Golovnin. They are as follows:

(a) the chartered vessel had been released from arrest by the Lome Court following an inter partes hearing;

(b) Lome was the contractual port of discharge under three of the four bills of lading;

(c) the purpose of switching the bills of lading in question was, among other things, to change the port of discharge from Lome to Douala;

(d) Banque Cantonale had offered a letter of indemnity to FESCO on 21 December 2005 in consideration of the cargo being discharged at Douala instead of Lome; and

(e) after failing to persuade FESCO to discharge the cargo at Douala, Banque Cantonale had sought FESCO’s confirmation that the cargo would be discharged in Lome according to its instructions.

25 AR Ang upheld FESCO’s contentions in relation to the first and fourth facts stated above. She ruled that there was no non-disclosure in relation to the remaining three facts.

Non-disclosure of the inter parteshearing in Lome

26 As for the banks’ failure to disclose to AR Lee that there had been a contested hearing in Lome before the chartered vessel was released, AR Ang stated in her grounds of decision at [38] as follows:

...

To continue reading

Request your trial
13 cases
  • Bahtera Offshore (M) Sdn Bhd v Sim Kok Beng
    • Singapore
    • High Court (Singapore)
    • 3 August 2009
    ... ... Seagate Technology (S) Pte Ltd v Heng Eng Li [1994] 1 SLR (R) 1; [1994] 1 SLR 534 (refd) Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd's Rep 428 (folld) Tay Long Kee Impex Pte Ltd v Tan Beng Huwah [2000] 1 SLR (R) 786; [2000] 2 SLR 750 (folld) Vasiliy Golovnin, The [2008] 4 SLR (R) 994; [2008] 4 SLR 994 (folld) Virgin Mobile (Singapore) Pte Ltd v Virgin Store (Singapore) Pte Ltd [2002] 2 SLR (R) 747; [2002] 3 SLR 575 (refd) Yardley & Co Ltd v Higson [1984] FSR 304 (refd) Civil Law Act (Cap 43,1999 Rev Ed)s 4 (10) ... ...
  • The ‘Bunga Melati 5’
    • Singapore
    • Court of Appeal (Singapore)
    • 21 August 2012
    ...(R) 258; [1984-1985] SLR 283 (refd) Tolla, The [1921] P 22 (refd) Vasiliy Golovnin, The [2006] SGHC 247 (refd) Vasiliy Golovnin, The [2007] 4 SLR (R) 277; [2007] 4 SLR 277,HC (folld) Vasiliy Golovnin, The [2008] 4 SLR (R) 994; [2008] 4 SLR 994,CA (refd) Vostok Shipping Co Ltd v Confederatio......
  • The "Vasiliy Golovnin"
    • Singapore
    • Court of Appeal (Singapore)
    • 19 September 2008
    ...the costs in RA No 214 and the Banks were awarded costs in respect of FESCO’s unsuccessful appeal in RA No 216 (see The Vasiliy Golovnin [2007] 4 SLR 277). The 6 CA 109/2007 is an appeal by Crédit Agricole against the High Court’s decision. The appeal concerns the decision to set aside the ......
  • The ‘Bunga Melati 5’
    • Singapore
    • High Court (Singapore)
    • 23 August 2011
    ...Offshore Engineering Pte Ltd v The Owners of the Ship or Vessel ‘Interippu’ [1990] SGHC 131 (not folld) Vasiliy Golovnin, The [2007] 4 SLR (R) 277; [2007] 4 SLR 277 (refd) Vasiliy Golovnin, The [2008] 4 SLR (R) 994; [2008] 4 SLR 994 (refd) Vitkovice Horni a Hutni Tezirstvo v Korner [1951] A......
  • Request a trial to view additional results
4 books & journal articles
  • Civil Procedure
    • Singapore
    • Singapore Academy of Law Annual Review No. 2007, December 2007
    • 1 December 2007
    ...of the hearing in the third defendant”s absence and as such, proceeded with the hearing under O 32 r 5. 7.71 In The Vasiliy Golovnin[2007] 4 SLR 277, the High Court held that the court would not exercise its discretion to strike out a writ or pleading under O 18 r 19 of the Rules of Court o......
  • REFERRING QUESTIONS OF FOREIGN LAW TO THE COURT OF THE GOVERNING LAW
    • Singapore
    • Singapore Academy of Law Journal No. 2011, December 2011
    • 1 December 2011
    ...see Westacre Investments Inc v The State-Owned Company Yugoimport SDPR [2009] 2 SLR(R) 166 at [13]. 50 The Vasiliy Golovnin [2007] 4 SLR(R) 277 at [38]; WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka [2002] 1 SLR(R) 1088. 51 The Vasiliy Golovnin [2007] 4 SLR(R) 277; The Senn......
  • Admiralty, Shipping and Aviation Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2007, December 2007
    • 1 December 2007
    ...of foreign law was discussed. That decision was the precursor to his Honour”s judgment delivered on 31 July 2007 and reported at [2007] 4 SLR 277, which dealt with the two primary issues of setting aside of the warrant of arrest and wrongful arrest, the former being the subject of the plain......
  • Conflict of Laws
    • Singapore
    • Singapore Academy of Law Annual Review No. 2007, December 2007
    • 1 December 2007
    ...that the saga may be ongoing. The defendant has indicated an intention to appeal further. 9.71 The final case was The Vasiliy Golovnin[2007] 4 SLR 277. The facts are somewhat complicated. Cargo aboard The Chelyabinsk was to be discharged at Lome. The bills of lading were held by the plainti......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT