The "Vasiliy Golovnin"

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 18 October 2006
• Neutral Citation: [2006] SGHC 188
• Court: High Court (Singapore)
• Published date: 18 October 2006
• Year: 2006
• Plaintiff Counsel: Vivian Ang, Kenny Yap and Joanne Chia (Allen & Gledhill)
• Defendant Counsel: Steven Chong SC, Ian Teo and Kohe Noor Hasan (Rajah & Tann)
• Subject Matter: Civil Procedure,Appeals,Registrar's appeal,Admission of further affidavit supporting appeal,Whether court should allow further affidavit to be admitted as evidence
• Citation: [2006] SGHC 188

18 October 2006

Tan Lee Meng J:

1 The plaintiffs, Credit Agricole (Suisse) SA and Banque Cantonale De Genève SA (collectively referred to as “the banks”), who arrested the Vasiliy Golovnin, a vessel owned by the defendant, Far East Shipping Co plc (“FESCO”), appealed against the decision of the assistant registrar, Ms Ang Ching Pin, who set aside their writ against FESCO and their warrant of arrest of the said vessel on 10 July 2006. The appeal has yet to be heard. In the meantime, the banks sought leave to admit a further affidavit (the “further affidavit”) by a Togolese lawyer, Mr Adama Doe-Bruce (“Mr Doe-Bruce”), for the purpose of the hearing of the appeal. I dismissed the application to admit the further affidavit and now give the reasons for my decision.

Background

2 FESCO chartered their vessel, the Chelyabinsk, to Sea Transport Contractors Ltd (“STC”). STC subchartered the vessel to Rustal SA (“Rustal”). Pursuant to the subcharter, a cargo of rice was loaded onto the vessel at China and India. The material bills of lading issued for the cargo named Lome in Togo as the port of discharge. The banks provided financing to Rustal and are holders of the said bills of lading for the cargo of rice on board the Chelyabinsk.

3 In early December 2005, Rustal requested the issuance of switch bills of lading to alter the port of discharge from Lome to Duola in Cameroon. FESCO was agreeable in principle to the request provided that the original bills of lading were surrendered in exchange for the switch bills. The parties agreed to effect the change on 12 December 2005 but neither Rustal’s officials nor their agents turned up at the appointed place for the switch. As such, the vessel proceeded to the port of discharge stated in the bills of lading, namely, Lome.

4 A dispute arose between the charterers, STC, and the subcharterers, Rustal, over the subcharter hire. Both of them applied for a number of orders from the Lome courts. On 22 December 2005, STC obtained a court order in Lome (“Ruling No 2062/2005”) for the arrest and detention of the cargo on board the Chelyabinsk as security for its claim against Rustal for unpaid hire under the subcharterparty. The banks contended that FESCO was warned on the same day not to proceed to Lome because STC had obtained a lien order on the cargo. This was disputed by FESCO.

5 After the Chelyabinsk arrived at Lome on 23 December, 2005, Ruling No 2062/2005 was served on her. However, on 24 December 2005, Rustal obtained an order from the Lome court (“Ruling No 2081/2005”) to prevent the discharge of the cargo from the Chelyabinsk. STC then obtained a court order dated 27 December 2005 (“Ruling No 2093/2005”) to have the cargo unloaded and discharged into the custody of the agent for the Chelyabinsk.

6 On 29 December 2005, the banks applied to the Lome court to set aside Ruling No 2093/2005 and reinstate Ruling No 2081/2005 that had been obtained by Rustal.

7 On 16 January 2006, the Lome court set aside the ruling 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 for their dispute with Rustal. The banks and Rustal then obtained separate rulings for a temporary stay of execution of the ruling. However, on 2 February 2006, the Lome court ordered the lifting of the stay of execution of Ruling No 0023/2006, which had ordered that the cargo be discharged in Lome. FESCO commenced discharging operations and the discharge was completed in mid-February.

8 On 21 February 2006, the banks obtained a court order in Lome for the arrest of the Chelyabinsk. The banks’ reasons for the arrest were essentially as follows:

(a) They had given firm instructions to the Chelyabinsk to rescind the bills of lading with a view to making it easier to market and unload the cargo at Duola in Cameroon where buyers had been found for the cargo.

(b) The Chelyabinsk had arrived in Duola on 12 December 2005 but refused to unload the cargo there and sailed to Lome despite the warnings from the banks that there were no customers for the cargo in Togo and that it would be difficult to find buyers for one part of the cargo in particular.

(c) The Chelyabinsk had in violation of the bank’s instructions sailed to Lome where the cargo was arrested, causing huge losses to the banks estimated at US$5.05m.

9 On the application of FESCO, the arrest of the vessel was set aside by the Lome court on 24 February 2006 (“Ruling No 0164/2006”). In setting aside the arrest and ordering the banks to pay costs, the Lome court made the following findings:

(a) The banks could not deal directly with FESCO without going through Rustal and STC, and FESCO could only follow STC’s instructions since Lome was stipulated as the port of discharge in a...