The “Xin Chang Shu”
Jurisdiction | Singapore |
Judge | Steven Chong J |
Judgment Date | 04 December 2015 |
Neutral Citation | [2015] SGHC 308 |
Year | 2015 |
Date | 04 December 2015 |
Published date | 08 December 2015 |
Hearing Date | 25 September 2015,23 September 2015 |
Plaintiff Counsel | Lawrence Teh and Khoo Eu Shen (Rodyk & Davidson LLP) |
Citation | [2015] SGHC 308 |
Defendant Counsel | Toh Kian Sing SC, Koh See Bin and Tan Yong Jin Jonathan (Rajah & Tann Singapore LLP) |
Court | High Court (Singapore) |
Docket Number | Admiralty in Rem No 239 of 2014 (Registrar’s Appeal No 226 of 2015) |
The law on wrongful arrest was developed to protect shipowners against malicious arrests or arrests brought with “so little colour” or “so little foundation” that implies malice on the part of the arresting party.
Proof of actual malice is often difficult to establish, especially at the interlocutory stage, where most applications for wrongful arrest are pursued. However, the malice threshold can be satisfied by inference in circumstances where the case is so hopelessly bereft of merit that it warrants a finding that the claim is seriously lacking in “
Ship arrest is an extremely draconian remedy. It can be very disruptive and may inflict severe economic hardship on the shipowner’s trade and operations. In order for the protection against this draconian measure to be meaningful and effective, the judicial threshold should not be set too high so as to render the right to damages practically illusory.
In appropriate cases, where the threshold has been crossed, the court should express its opprobrium towards the arresting party’s conduct by ordering it to be accountable for the damages occasioned by its wrongful arrest. Indeed, our courts have in a number of cases held the arresting party accountable for wrongful arrest.
After considering the facts and the arguments presented by the parties, I am satisfied that the line was crossed in this case. Not only was the arrest pursued,
On 19 November 2014, the plaintiff commenced admiralty
Prior to the arrest of the Vessel (on 10 December 2014), the parties exchanged a series of correspondence in which the defendant made its position and defence clear. Specifically, the defendant clearly informed the plaintiff of the following:1
In the same chain of correspondence, the parties also negotiated the provision of alternative security to the plaintiff. No agreement was, however, reached prior to the arrest of the Vessel. The plaintiff insisted that the terms of the security should answer to any judgment “by any court or arbitral tribunal of competent jurisdiction”, but the defendant was willing to furnish security that would answer only to a judgment of the Singapore court.2 Thus, on 9 December 2014, the plaintiff obtained a warrant of arrest and proceeded on 10 December 2014 to arrest the Vessel. On 12 December 2014, the parties agreed that the defendant would furnish security by way of payment into court in the sum of US$2.6 million to secure the release of the Vessel, and the Vessel was duly released on the same day. The Vessel was thus arrested for approximately three days.
Shortly after, on 15 December 2014, the plaintiff filed Summons No 6218 of 2014 (“SUM 6218/2014”) for a stay of proceedings in favour of arbitration under ss 6 and 7 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“the IAA”). On 29 December 2014, in Summons No 6364 of 2014 (“SUM 6364/2014”), the defendant applied to strike out the proceedings, set aside the warrant of arrest, and applied for damages for wrongful arrest.
The decision below and the appeals before me The plaintiff’s application for a stay of proceedings in favour of arbitration (
Dissatisfied with the AR’s decision, both the plaintiff and the defendant appealed. In Registrar’s Appeals No 224 and 225 of 2015 (“RA 224/2015” and “RA 225/2015” respectively), the plaintiff appealed against the AR’s decision in striking out its writ and in dismissing its stay application. In Registrar’s Appeal No 226 of 2015 (“RA 226/2015”), the defendant appealed against the AR’s decision in not awarding damages for wrongful arrest, and in not setting aside the writ and warrant of arrest on the basis of lack of admiralty jurisdiction and material non-disclosure respectively. At the appeal hearing, the defendant withdrew their appeal against the AR’s finding that the court had admiralty jurisdiction.
After hearing the parties on 23 September 2015, I dismissed the plaintiff’s appeals in RA 224/2015 and RA 225/2015 while I reserved judgment in relation to RA 226/2015.
I shall briefly explain my grounds for dismissing RA 224/2015 and RA 225/2015 because it has a material bearing on my present decision in RA 226/2015. In dismissing the plaintiff’s appeals in RA 224/2015 and RA 225/2015, I agreed with the AR’s reasoning, which I found to be commendably clear. In brief, the AR found that the plaintiff’s claim, premised on the agency of OW Singapore, was
To this, I would add that based on the affidavit of John Kevin Phillips (“Mr Phillips”) dated 8 December 2014 filed in support of the application for a warrant of arrest (“the arrest affidavit”), the plaintiff relied on two key facts to support its agency claim:
At the hearing before me, the defendant’s counsel, Mr Toh Kian Sing SC (“Mr Toh”), pointed out that the commercial details referred to...
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FULFILLING THE DUTY OF FULL AND FRANK DISCLOSURE IN ARREST OF SHIPS
...and 2.21. 48[2010] 3 SLR 294. 49The Eagle Prestige[2010] 3 SLR 294 at [73] and [84]. 50The Eagle Prestige[2010] 3 SLR 294 at [72]. 51[2016] 1 SLR 1096. 52The Xin Chang Shu[2016] 1 SLR 1096 at [48]. 53The Xin Chang Shu[2016] 1 SLR 1096 at [7]. 54The Xin Chang Shu[2016] 1 SLR 1096 at [73]. 55......
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Admiralty and Shipping Law
...[2010] 2 SLR 518 at [33]. 27 See Likpin International Ltd v Swiber Holdings Ltd [2016] 4 SLR 1079 at [10]. 28 [2016] 3 SLR 1195. 29 [2016] 1 SLR 1096; see also (2015) 16 SAL Ann Rev 62 at 73–79. 30 Cap 322, 2007 Rev Ed. 31 The Xin Chang Shu [2016] 3 SLR 1195 at [13(a)]. 32 [2013] 3 SLR 354.......
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Case Note
...of leave. 4 Hyundai Merchant Marine Co Ltd v OW Bunker Middle East DMCC (Korea Division) (unreported) HC/OS 144/2015; The Xin Chang Shu[2016] 1 SLR 1096. 5 There were a total of 13 originating summonses heard in Precious Shipping Public Co Ltd v OW Bunker Far East (Singapore) Pte Ltd[2015] ......