The "Vinalines Pioneer"

• Jurisdiction: Singapore
• Judge: Jay Lee Yuxian AR
• Judgment Date: 12 December 2014
• Neutral Citation: [2015] SGHCR 1
• Court: High Court (Singapore)
• Docket Number: Admiralty in Rem No 163 of 2013 (Summons No 4029 of 2013)
• Published date: 07 January 2015
• Year: 2014
• Hearing Date: 09 January 2014,31 October 2013,22 April 2014,27 September 2013,24 April 2014,28 August 2014,08 January 2014,23 April 2014
• Plaintiff Counsel: Vivian Ang, Yap Yin Soon, Bryna Yeo (Allen & Gledhill LLP)
• Defendant Counsel: Philip Tay, Yip Li Ming (Rajah & Tann LLP)
• Subject Matter: Admiralty and shipping,Admiralty Jurisdiction, Striking Out and Material Non-Disclosure
• Citation: [2015] SGHCR 1

Jay Lee Yuxian AR:

This was the Defendant’s application to (a) set aside the Plaintiff’s admiralty writ in rem for want of admiralty jurisdiction under the High Court Admiralty Jurisdiction Act (“HC(AJ)A”) and/or (b) to strike out the admiralty writ in rem and the statement of claim pursuant to O 18 r 19 of the Rules of Court (Cap 322, R5, 2006 Ed) (“ROC”) or the Court’s inherent jurisdiction. Although not specifically prayed for in the original summons, the Defendant submitted at the hearing that as an alternative prayer, they sought to set aside the arrest of The “Vinalines Pioneer” on the ground of material non-disclosure in the hearing of the Plaintiff’s application for the Warrant of Arrest (“Arrest hearing”) as well as in the Plaintiff’s affidavit supporting its application for the Warrant of Arrest (“Arrest Affidavit”).

The Defendant’s further prayed that the Plaintiff be ordered to return to the Defendant the Letter of Undertaking dated 11 June 2013 and also for the Plaintiff to pay the Defendant damages for the wrongful arrest of the vessel The “Vinalines Pioneer”.

Overview Background facts leading to the arrest of The “Vinalines Pioneer”

The tragic incident at the heart of this application was the sinking of the vessel “Phu Tan” in the Tonkin Gulf on or around 16 December 2010 which lead to the loss of lives and property on board the “Phu Tan”. The relevant events leading up to the arrest which is the subject matter of this application are set out below.

The Plaintiff is Hung Dao Container Joint Stock Company (“HD”), a Vietnamese incorporated company who had supplied the containers which were used on the “Phu Tan”. The Defendant is Vietnam National Shipping Lines, (“Vinalines”), the owner of “Phu Tan” and ‘The “Vinalines Pioneer”’. They are a state owned company incorporated in Vietnam, and are said to be in the commercial business of shipping, port operations and inter alia, the provision of coastal and ocean-going freight transportation services.

The Defendant has a branch office known as Vinalines Container Shipping Company (“VCSC”). The Plaintiff’s case is that in or around June 2010 the Plaintiff and the Defendant (through their branch office VCSC) entered into a Container Lease Agreement no. 500710T/2010/HD-VCSC (the “2010 CLC”). It was conceded by the Defendant for the purposes of the present application, that Vinalines was the party to the 2010 CLC.

According to the Plaintiff, under the 2010 CLC, the Plaintiff agreed, inter alia, to lease containers to the Defendant for shipping their goods. I would note here that in the course of the hearings, there arose a dispute as to whether the 111 containers were in fact leased pursuant to the 2010 CLC. The parties also crossed swords on what was the correct translation of Article 1.1 of the 2010 CLC. These issues are addressed at [53] to [61] below.

Sometime in and around December 2010, the 111 containers which were on lease to the Defendant were loaded on the Defendant’s vessel “Phu Tan” for carriage from Ho Chi Minh/Danang to Hai Phong. On 16 December 2010, the Defendant’s vessel “Phu Tan” capsized and sank. The sinking of the “Phu Tan” resulted in the loss of lives as well as all containers on board, including the 111 containers which are the subject of contention in the present proceedings.

The Plaintiff was informed by the Defendants by way of a letter dated 10 March 2011 that the “Phu Tan” had sank with all containers on board and that the 111 containers were a total loss. The Plaintiff alleged that following the incident, they made numerous attempts to recover compensation for the loss of the containers but were unsuccessful. The Plaintiff filed proceedings in Vietnam on 7 August 2012 but allege that there has been little progress in the Vietnamese proceedings save that the Defendant had on 16 May 2013 belatedly filed a “purported Explanation” which I surmise is a court document to be filed in the normal course of court proceedings in Vietnam.

The Plaintiff subsequently filed proceedings in Singapore on 4 June 2013. On 7 June 2013, the Plaintiff applied for and obtained the warrant of arrest (at the “Arrest Hearing”) and they arrested the vessel The “Vinalines Pioneer” (“the Arrested Vessel”) on 9 June 2013. The Arrested Vessel was released on 11 June 2013 upon security being furnished. Subsequently, the Defendant entered appearance on 20 June 2013. The Plaintiff filed their Statement of Claim (“SOC”) on 12 June 2013 and the amended SOC was served on the Defendant on 25 July 2013. The Defendant then brought the present application.

Procedural history of the application

The present application was initially heard on 27 September 2013 and then 31 October 2013. A further set of dates were taken in January 2014 in order to complete the hearing. Thereafter, the following series of procedural skirmishes, briefly set out below, ensued.

Prior to the adjourned hearing in January 2014, the Defendants filed a further affidavit by Tran Phuong Thuy dated 2 January 2014 and essentially sought to adduce further evidence which they alleged was relevant to their case on whether admiralty jurisdiction was properly invoked under section 3(1)(l) of the HC(AJ)A and whether there was material non-disclosure by the Plaintiff. Given the seriousness of the allegations and the potential significance of the further evidence to the determination of the issues, I granted leave for the further affidavit to be admitted and allowed parties the opportunity to file further affidavits to address the further points of contention raised. In the course of events, parties subsequently filed further affidavits and provided discovery of further documents. The further evidence essentially comprised documents known as the Equipment Interchange Receipts (“EIRs”) and booking orders which were essentially documents exchanged between the parties to evidence the supply of a container from the Plaintiff to the Defendant.

The hearing resumed in end April 2014 and at the end of the hearing, parties were given leave to file written supplemental submissions to address some points which had not been fully addressed during the course of the hearing. However, the Plaintiff subsequently filed an application for leave to admit a further affidavit from their Vietnamese law expert, Luu Tien Dzung to address the issue of whether the Plaintiff’s claim was time-barred. I allowed the admission of the Plaintiff’s further affidavit, in the interests of the overall justice of the matter, given that it had potential significance to the time-bar issue which was being relied upon by the Defendant both as a ground for striking out and as a basis for setting aside the arrest for material non-disclosure. The Defendant was also given the opportunity to file reply affidavits on this issue. Another minor skirmish arose when the Defendant subsequently applied to strike out the further affidavit filed by the Plaintiffs’ Vietnamese law expert and this was resolved in favour of the Plaintiff. The parties eventually returned before me in end August 2014 and made their final arguments in the application.

At this juncture, it would be useful to broadly outline the parties’ respective arguments.

The Parties’ Arguments

The Defendant’s grounds for the setting aside were two-fold. First, they contended that the admiralty writ should be set aside as the Plaintiff’s claim did not fall within the jurisdictional limbs which the Plaintiff sought to rely on under section 3(1) of the HC(AJ)A. Separately, and as an independent ground for setting aside the arrest, they alleged that there was material non-disclosure in the Arrest Hearing and in the Plaintiff’s arrest affidavit filed by Tran Van Hung on 7 June 2013 (“Arrest Affidavit”).

The Defendant’s case on striking out was premised on O18 r 19(1)(b) of the ROC and the inherent jurisdiction of the court, and based on the grounds that first the Plaintiff’s claim was time-barred and second that so far as the non-contractual claims were concerned, there was “not a shred of evidence” to support these claims, and that there is no evidence of “double actionability”.

The Defendant further asserted that this was a case where damages for wrongful arrest should be awarded as the claim was entirely without substance or foundation and that there was material non-disclosure by the Plaintiff in the Arrest Hearing as well as in the Arrest Affidavit filed by Tran Van Hung dated 7 June 2013.

In response, the Plaintiff contended that their present claim did fall within section 3(1), in particular sections 3(1)(d), (g) and/or (l) of the HC(AJ)A such that Admiralty jurisdiction was properly invoked. The Plaintiff argued that the nature of their claim was fully set out in the Arrest Affidavit as well as in the Indorsement of Claim. In particular, the Plaintiff asserted that they had provided sufficient information on, inter alia, the following: The details of the 2010 CLC between the parties and the material terms therein; the subject matter of the claim i.e. the loss of the 111 containers, The Plaintiff’s locus to sue, i.e. as the owners and/or lessors and/or bailors and/or persons entitled to immediate possession or having a reversionary interests in respect of the 111 containers; The basis upon which the claim was brought against the Defendant i.e. as the bailees and/or carriers of the containers; That the 111 containers were carried on board the Defendant’s vessel “Phu Tan” in or around December 2010 from Ho Chih Minh City and/or Danang to Hai Phong; That the 111 containers were for the vessel’s operation or maintenance or were equipment of the “Phu Tan”; That the 111 containers were lost when the Defendant’s vessel ”Phu Tan” sank on 16 December 2010.

As to the striking out, the Plaintiff asserted that there were merits to their present claim and it was a legally and factually sustainable claim.

Finally, the...