DC 1393 of 2010/H; RA No. 12 of 2011; RAS No. 28 of 2011
Plaintiff Counsel
Mr Joseph Tan (Legal Solutions LLC)
Court
District Court (Singapore)
District Judge Tan May Tee:Introduction
This matter came before me by way of a Registrar’s Appeal. The Defendants had applied in SUM 8862/2010/Y to strike out, alternatively to stay the Plaintiffs’ claim in this action and/or to set aside the Writ of Summons. The application was dismissed by the deputy registrar. After hearing both parties, I allowed the Defendants’ appeal and ordered that the Plaintiffs’ claim be struck out. The Plaintiffs have now appealed to the High Court. Herein are my reasons for striking out the Plaintiffs’ claim.
The Plaintiffs’ claim
The Plaintiffs are an Indian company in the business of providing carriage of goods for reward. The Defendants, a Singapore company, are engaged in the trading of branded electronic products.
In the Statement of Claim endorsed in their writ of summons, the Plaintiffs pleaded their claim inter alia as follows:“3The Defendants entered into a contract of carriage with the Plaintiffs, evidenced by a Bill of Lading No. TALTLS00294999 dated 26 April 2008 (“Bill of Lading”) for the shipment of 1 x 40’ HC FCL STC electronic goods from Singapore to Nhava Sheva, India.
Particulars
On or about 21 April
2008 St John Freight Systems Pte Ltd, the agents for the Defendants
placed a booking for the shipment of 1 x 40’ HC container for
shipment from Singapore to Nhava
Sheva.Pursuant to the booking
placed by St John Freight Systems Pte Ltd, the Plaintiffs issued the
Equipment Release Order-Cum-Booking Confirmation Note dated 21 April
2008 (“Booking
Note”).The Defendants
and/or their agent collected an empty 40’ HC container from the
Plaintiffs’ appointed container depot in order to stuff the
container with the Defendants’
cargo.After the container was
loaded on board the TS MUMBAI VOY 806W, the Bill of Lading was issued
naming the Defendants as the shipper and released to St John Freight
Systems Pte Ltd as agents for the
Defendants.The Defendants
wrote to the Plaintiffs by way of a letter dated 28 May 2008 confirming
that the Defendants were still holding on to the full set of 3 original
Bills of lading.The Plaintiffs
aver that the terms of the contract are contained in both the Booking
Note and the Bill of Lading.The Bill of Lading expressly provides as follows:Carrier’s Tariff
The terms and conditions of the Carrier’s applicable Tariff are incorporated herein. Attention to the drawn to the terms therein relating to free storage time and to container and vehicle demurrage detention ...
Shipper-packed containers
...
The Carrier shall not be liable for any loss of or
damage to the contents, and the Merchant shall indemnify the
Carrier against any injury, loss, damage, liability or expense
whatsoever incurred by the Carrier if such loss of or damage to
the contents and/or such injury, loss, damage, liability or
expense has been caused by all matters beyond the
carrier’s control including, inter alia, without prejudice
to the generality of this exclusion ..
..
The Merchant shall be liable for and shall indemnify
the Carrier against all loss, damage, delay, fines, attorney
fees and/or expenses arising from any breach of the warranties
in clause 14.3 or from any other cause whatsoever in connection
with the Goods for which the Carrier is not
responsible.The Merchant shall comply with all regulations of
customs, port and other authorities, and shall bear and pay, all
duties, taxes, fines, imposts, expenses or losses including
without prejudice to the generality of the foregoing, Freight
for any additional Carriage undertaken, incurred or suffered by
reason thereof, or by reason of any illegal, incorrect or
insufficient declaration or , marking, numbering or addressing
of the Goods, and shall indemnify the Carrier in respect
thereof.If Containers supplied by or on behalf of the Carrier
are unpacked at the Merchant’s premises, the Merchant is
responsible for returning the empty Containers with interiors
clean, odour-free and in the same condition as received to the
point of place designated by the Carrier within the time
prescribed. In case the containers are not cleaned to a
satisfactory condition, or if the container is found damaged
then the cost of cleaning repairs shall be to the account of the
Merchant. Should a Container not be returned in the condition
required and or within the time prescribed in the Tariff, the
Merchant shall be liable for any detention loss or expense
incurred as a result thereof.”
The Plaintiffs shall refer to the Bill of Lading for its full terms and effect at the trial of this action.
The container was shipped on board the TS MUMBAI VOY
806W on or around 26 April 2008. The container was discharged at Nhava
Sheva, India on or around 5 May 2008, whereupon it was subsequently
shifted off-dock to CFS Trans India Logistic Park.Although the container was discharged on or around 5
May 2008, the consignee M/s Riddhi Traders failed to take delivery of
the cargo.By way of a letter dated 6 May 2008 from the
Directorate of Revenue Intelligence, India (“DRI”), the
Indian Custom authorities detained the container as they were
investigating whether the import of electronic goods into India were at
an undervalue in order to defraud the Indian Custom
authorities.Subsequently, the cargo was seized by the DRI and
was eventually sold by the DRI.The empty container was returned to the Plaintiffs
only on 13 November 2009. In the premises, the Plaintiffs aver that the
Defendants are liable to the Plaintiffs in respect of the detention
charges for the period between19 May 2008 to 13 November 2009, as the
first 14 days from 5 May 2008 to 18 May 2008 are free of any detention
charges.
... ”
The Plaintiffs quantified their claim against the Defendants at US$52,529.12 being detention charges for the container for the period 19 May 2008 to 13 November 2009 as well as other ancillary charges. This worked out to a total sum of Indian Rupees 2,482,001 equivalent to US$52,529.12. The Plaintiffs had issued a demand for the outstanding sum and several reminders to the Defendants and when payment was not made, they issued writ on 4 May 2010.
The Defence
The Defendants admitted they had a contract evidenced by the Bill of Lading but denied they had contracted with the Plaintiffs. They pleaded that on or about 21 April 2008, through one St. John Freight Systems Pte Ltd they had arranged for a 1 x 40’ High Cube Container No. CAXU4969000 to be delivered to a warehouse at Jurong Logistics Hub leased by them. They had stuffed the container with a cargo of electronic goods which was subsequently loaded on board the vessel TS MUMBAI / 806W.
Relying on various definitions in the Bill of Lading, the Defendants pleaded that the carrier was not the Plaintiffs but Trans Asian Shipping Services Pte Ltd, a Singapore-incorporated company, which should properly have been named as the plaintiff in this action.
The Defendants further averred that by the application of the Schedule to the Carriage of Goods by Sea Act (Cap. 33) (“COGSA”), even if the Plaintiffs were the carrier, the Defendants as shipper are not liable for any of the claims made against them.
In the alternative, the Defendants pleaded that the Plaintiffs are estopped and/or had waived their right to mount a claim against them as they had elected to render a final bill for the same amount of their claim to the...
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