The "Vishva Apurva"

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 30 April 1992
• Neutral Citation: [1992] SGCA 32
• Date: 30 April 1992
• Subject Matter: Court's exercise of discretion,Factors to be considered,Exclusive jurisdiction clause,Appeals,Stay only in exceptional circumstances,Discretion exercised by trial judge,Stay of proceedings,Interference by appellate court,Exercise of court's discretion,Civil Procedure,Conflict of Laws,Choice of jurisdiction,Whether judge properly exercised discretion
• Docket Number: Civil Appeal No 107 of 1990
• Published date: 19 September 2003
• Defendant Counsel: Anwarul Haque and Thomas Tan (Haridass Ho & Partners)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Belinda Ang (Belinda Ang)

This was an appeal from the decision of FA Chua J dismissing the appellants` appeal against the orders of the assistant registrar refusing the appellants` applications in Admiralty in Rem Nos 230, 231 and 232 of 1988 for orders that all further proceedings in the said actions be stayed, (a) on the ground that the bill of lading upon which the action was founded contained an exclusive jurisdiction clause that any dispute arising thereunder should be determined by the courts in India according to the law of India, or alternatively, (b) on the ground that India was the natural and more appropriate forum for the determination of the dispute in question.

At the conclusion of the hearing of this appeal, we allowed the appeal and said we would give our reasons later.

Background

The appellants were a state shipping corporation incorporated under the Indian Companies Act 1956, with its registered office at Bombay. They owned the vessel `Vishva Apurva` (`the VA`).

On or about 6 August 1987, the VA, laden with 10,520 tonnes of break bulk cargo and 32 containers loaded at Rotterdam, Gdansk, Yxpila, Rostock and Fredrikstad for discharge at various Indian ports of Bombay, Cochin, Madras, Calcutta and Vishakhaptnam, was off Yanbu after proceeding through the Suez Canal when she was collided into by the Greek ship `Dias`, causing her to take in water and sink shortly thereafter with her entire cargo in position 23[deg ] 37` North and 036[deg ] 52` East.

The bills of lading were issued by the appellants through their agents at the respective ports of loading and each of them contained an exclusive jurisdiction clause which read:

(17) Jurisdiction clause: The contract evidenced by this bill of lading shall be governed by the law of India and any dispute arising hereunder shall be determined by the Indian courts according to that law to the exclusion of the jurisdiction of the courts of any other country.

The Indian actions

Beginning in August 1988, a number of actions were commenced against the appellants in India by other cargo owners in Bombay in Admiralty Nos 29, 30, 31, 32, 58, 2569 and 2825, all of 1988. Also, all the respondents (except the holders of two bills of lading in Admiralty in Rem No 232 of 1988) had also, through their insurers, commenced actions in the Bombay High Court in Suit Nos 2567, 2568, 2569 and 2570 of 1988, claiming the same reliefs as in the Singapore actions. The aggregate value of cargo represented in the said Indian actions (excluding the respondents` claims) was Rs 141,551,125.16 (or about US$8,606,308.40).

On 28 June 1988, the appellants commenced an action in Admiralty No 17 of 1988 in the High Court in Bombay under s 352B of the Indian Merchant Shipping Act 1958 to limit their liability to Rs 5,252,241.50 (or about US$319,336.28) and to set up a limitation fund in that amount. The defendants to this suit were Hindustan Shipyard Ltd (`HSL`) and all other persons having claims arising from the sinking of the VA. On 9 August 1988, the appellants obtained an order of court, inter alia, to deposit with the Admiralty Registrar, within 15 days from the date of the order, the sum of Rs 5,252,241.50 or to furnish a bank guarantee for the said amount to constitute the limitation fund of the VA. The appellants duly provided the bank guarantee to abide by the further outcome of the limitation proceedings in Admiralty No 17 of 1988.

As directed by the court, the appellants then proceeded to advertise the terms of the order of court in all the ports whereat the cargo interests were likely to be found, viz London, Paris, Le Havre, Hamburg, Yxpila, Fredrikstad, Bombay, Madras and Calcutta. The order of court was duly advertised in the newspapers in those countries. All claimants were requested to lodge their claims with the Admiralty Registrar, Bombay High Court by 30 November 1988.

By 30 November 1988, the total claims lodged by the cargo interests against the appellants with the Admiralty Registrar amounted to 82% of the value and about 94% of the aggregate number of bills of lading issued.

On 30 November 1988, HSL applied to the court to dismiss the limitation action for want of jurisdiction. On the same day, two other interested parties also applied to set aside the order of court of 9 August 1988 and also for extension of time for making claims against the appellants. After a number of adjournments, the two applications were heard on 2 July 1990, and judgment was given on 25 July 1990. The court held that no question of jurisdiction arose, but set aside the order of 9 August 1988 and allowed the bank guarantee to be withdrawn. The court also ordered that written statements be filed within four weeks, discovery and inspection to be complied with within two weeks thereafter, the suit to be treated as an expedited suit and placed on board for the purpose of final hearing and disposal. The appellants filed their defences in the Indian actions on 10 October 1990.

The Singapore actions

Meanwhile, in Singapore, the respondents commenced, on 5 August 1988, three actions in Singapore in Admiralty in Rem Nos 230, 231 and 232 of 1988, claiming damages for loss of cargo shipped under 11 bills of lading for discharge at four of the Indian ports named above. Subsequently, the appellants` sister ship `Kalidas` sailed into Singapore and was arrested on 11 January 1989. The vessel was released the following day upon the appellants providing security for the respondents` claim in the form of a letter of undertaking dated 27 January 1989 issued by the appellants` P & I Club, London Steamship Owners` Association Ltd, for US$4.5m, covering any judgment which might be given against the appellants in Singapore and Bombay. The appellants entered appearance on 23 February 1989. The statement of claim was filed on 3 June 1989.

The appellants applied to stay the Singapore proceedings on 20 July 1989. On 6 February 1990, the assistant registrar dismissed the application. The appeal against the dismissal was also dismissed by FA Chua J on 15 October 1990. [See [1991] 2 MLJ 440 .]

The law on exclusive jurisdiction clauses

In dismissing the appeal, FA Chua J applied the principles laid down by this court in Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd. [1977] 2 MLJ 181 In that case, Kulasekaram J (delivering the judgment of the court) said, at pp 181-182:

The law concerning an application for a stay is clear. Where a plaintiff sues in Singapore in breach of an agreement to submit their disputes to a foreign court, and the defendant applies to [sic] a stay, the Singapore court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. The court in exercising its discretion should grant the stay and give effect to the agreement between the parties unless strong cause is shown by the plaintiff for not doing so. To put it in other words, the plaintiff must show exceptional circumstances amounting to strong cause for him to succeed in resisting the application for a stay by the defendant. In exercising its discretion the court should take into account all the circumstances of the particular case. In particular, the court may have regard to the following matters, where they arise: ...

The matters referred to in the said passage were those listed by Brandon J in ` The Eleftheria `2 at p 242, which judgment has since been approved by the English Court of Appeal (of which Brandon LJ was a member) in ` The El Amria `.3 The relevant matters as set out in Brandon J`s judgment were as follows:

The principles established by the authorities can, I think, be summarized as follows: (1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the English court, assuming the claim to be otherwise within the jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. (2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown. (3) The burden of proving such strong cause is on the plaintiffs. (4) In exercising its discretion the court should take into account all the circumstances of the particular case. (5) In particular, but without prejudice to (4), the following matters, where they arise, may be properly regarded: (a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign courts. (b) Whether the law of the foreign court applies and, if so, whether it differs from English law in any material respects. (c) With what country either party is connected, and how closely. (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. (e) Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would (i) be deprived of security for that claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time-bar not applicable in England; or (iv) for political, racial, religious or other reasons be unlikely to get a fair trial.

Reasons for dismissal

In dismissing the appeal, FA Chua J found that the facts and the circumstances of the case were so exceptional as to amount to strong cause to warrant the refusal of a stay. They may be summarized as follows:

(a) that if the actions were to proceed in India, there would be very considerable delay of at least ten years before they could come on for trial; in comparison, the Singapore actions were under way for a substantial time and were ready for trial; also the parties had incurred substantial costs in these actions;

(b) a successful litigant in India would not be able to recover party and party costs in India (such costs having been abolished on 1 January 1977), or realistic...