The "Vishva Apurva"

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 29 January 1991
• Neutral Citation: [1991] SGHC 19
• Docket Number: Admiralty in Rem No 230 of 1988
• Date: 29 January 1991
• Published date: 19 September 2003
• Year: 1991
• Plaintiff Counsel: Belinda Ang (Ang & Partners)
• Citation: [1991] SGHC 19
• Defendant Counsel: Lawrence Boo (Haridass Ho & Partners)
• Court: High Court (Singapore)
• Subject Matter: Choice of jurisdiction,Applicable principles,Bills of lading,Whether court should stay action,Stay of proceedings,Exclusive jurisdiction clause,Bills of lading as contract of carriage,Plaintiffs commencing action in Singapore in breach of clause,Cargo owners commencing action in rem in Singapore against shipowners,Civil Procedure,Admiralty and Shipping,s 5 Civil Law Act (Cap 43),Damage to goods carried on board vessel,Procedural advantages,Foreign jurisdiction clause,English law and practice,Conflict of Laws,Merchant Shipping Act (Cap 179)

Cur Adv Vult

The plaintiffs` claim is for damages in respect of the total loss of the plaintiffs` cargo shipped on board the defendants` ship the `Vishva Apurva` of the port of Bombay pursuant to bills of lading numbered 2 (Yxpila, Finland, to Madras) and 11 (Yxpila to Bombay).

The loss arose out of the collision in the Red Sea on or about 6 August 1987, between the `Vishva Apurva` and the Greek ship the `Dias`. Following the collision, the `Vishva Apurva` sank with her entire cargo.

The plaintiffs commenced the present proceedings in Singapore on 5 August 1988, and seized the defendants` ship the `Kalidas`.

Proceedings were instituted against the defendants on 5 August 1988, in the High Court of Bombay on behalf of Pohjola Insurance Co Ltd in respect of their subrogated claims under the bills of lading numbered 2 and 11 issued in respect of the plaintiffs` cargo (Suit No 2567 of 1988).

The defendants are The State Shipping Corp of India Ltd, a government company incorporated under the Indian Companies Act 1956 with their registered office in Bombay.

The bills of lading issued in respect of the plaintiffs` cargo contain the following clause:

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 defendants applied by summons-in-chambers No 4151 of 1989 for a stay of all further proceedings in this action. The summons was dismissed by the assistant registrar on 6 February 1990. The defendants filed notice of appeal to the judge-in-chambers on 9 February 1990.

The appeal came before me on 15 October 1990 and I dismissed the appeal with costs. The defendants have filed a notice of appeal to the Court of Appeal.

I now give my reasons.

It is not in dispute that this court has jurisdiction to entertain in Singapore the plaintiffs` claim against the defendants under s 3(1)(g) of the High Court (Admiralty Jurisdiction) Act (Cap 123).

The question for determination is whether this action ought to be stayed in view of the foreign jurisdiction clause in the bills of lading.

It is also not in dispute that this court has a wide discretion in deciding whether to hear the parties to this action or whether to uphold the foreign jurisdiction clause and stay the action. In deciding such questions the Singapore court has recourse to English law and the practice followed by the courts in England, unless in any case other provision is made by any law in force in Singapore (s 5 of the Civil Law Act (Cap 43)).

In England, the principles are enunciated in the leading judgment of Brandon J in The Eleftheria [1969] 1 Lloyd`s Rep 237 at p 242, in which he summarized what appeared to him to be the principles established by the authorities which had been cited to him. The principles are:

(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 aspects.

(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.

In Singapore, the Court of Appeal in Amerco Timbers Pte Ltd v Chatsworth Time Corp Pte Ltd [1977] 2 MLJ 181 stated the principles in words very similar to that of The Eleftheria. Kulasekaram J (delivering the judgment of the court) said at p 181:

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 for 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 an 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:

(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 Singapore and foreign courts.

(b) Whether the law of the foreign court applies and, if so, whether it differs from Singapore law in any material respects.

(c) With what country either party is connected and, if so, 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 their claim;

(ii) be unable to enforce any judgment obtained;

(iii) be faced with a time-bar not applicable here; or

(iv) for political, racial, religious or other reasons be unlikely to get a fair trial.

In determining this appeal, I bore in mind that there is a prima facie case for a stay arising from the foreign jurisdiction clause. The plaintiffs must be bound by the foreign jurisdiction clause which they have agreed to. But this court has a discretion to refuse an application for a stay if the facts and circumstances of the case are so exceptional as to amount to strong cause to the contrary. The burden lies with the plaintiffs.

The plaintiffs have shown that the facts and circumstances of the case are so exceptional as to amount to strong cause and to warrant a refusal of stay.

It has been clearly shown by the plaintiffs that if the case were to proceed in the Indian court there will be very considerable delay (of at least ten years) before the matter comes to trial, by comparison with its determination by the Singapore court. The Singapore action has been set down for trial on 6 September 1990.

Very great delay in the hearing of an action seems to me to be a denial of justice. Serious delay is a factor which should be taken into consideration (see Aratra Potato Co v Egyptian Navigation Co; The El Amria [1981] 2 Lloyd`s Rep 119 ; The Sidi Bishr [1987] 1 Lloyd`s Rep 42; The Vishva Ajay [1989] 2 Lloyd`s Rep 558).

The fact that the Singapore proceedings have been under way for a substantial time and have involved the parties in substantial costs and are ready for trial, is a strong factor in favour of the grant of stay of the Indian proceedings (see p 14 Supplement to 1988 Supreme Court Practice ).

The plaintiffs have adduced evidence that a successful litigant in India will not be able to recover party and party costs or even costs on a realistic basis. Party and party costs was abolished in India on 1 January 1977. The amount of costs recoverable by a successful litigant in the Bombay High Court is governed by r 606 of the Rules of the High Court on its original side. The amount recoverable under r 606 is based on the quantum of the claim but there is a ceiling to the amount of advocate`s fees recoverable from the other side which is presently fixed at 38,500 rupees. If this case should proceed to litigation in Bombay, and should the plaintiffs succeed in the action, the maximum amount of costs recoverable by them from the defendants is limited to 38,500 rupees.

It seems to me that substantial justice would not be done if this case were to proceed in the Indian court as the success of the plaintiffs in monetary terms would necessarily and substantially be diminished as they would have to pay much higher costs than in Singapore. The effect of costs is...