UCO Bank v Golden Shore Transportation Pte Ltd

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 25 June 2003
• Neutral Citation: [2003] SGHC 137
• Court: High Court (Singapore)
• Published date: 07 May 2004
• Year: 2003
• Plaintiff Counsel: Sarjit Singh Gill SC (Shook Lin & Bok),Dylan Lee (Shook Lin & Bok)
• Defendant Counsel: Toh Kian Sing (Rajah & Tann),Aileen Boey (Rajah & Tann)
• Subject Matter: Conflict of Laws,Exclusive jurisdiction clause,Whether clause in bills of lading was exclusive jurisdiction clause,whether stay should be granted,forum non conveniens,whether India was clearly the more appropriate forum.
• Citation: [2003] SGHC 137

Introduction

1 The plaintiff UCO Bank (“UCO”) claimed damages in this action, as a holder of bills of lading, against the defendant Golden Shore Transportation Pte Ltd (“Golden Shore”) who was the owner of the vessel “ASEAN PIONEER”.

2 Golden Shore then applied for a stay of this action on two grounds:

(a) clause 17 in the bills being an exclusive jurisdiction provision which provided for claims to be dealt with under the jurisdiction of the courts at the intended port of delivery i.e Kandla, India,

(b) that, in any event, India is clearly the more appropriate forum to hear the dispute.

The application was heard by an Assistant Registrar who granted a stay on the basis that clause 17 was an exclusive jurisdiction provision but made no decision on the second ground.

3 UCO then appealed to a judge-in-chambers. Its arguments were that clause 17 was not an exclusive jurisdiction provision and, even if it was, there was strong cause why UCO should not be held to such a provision on the particular facts of the case. In turn, Golden Shore filed an appeal to a judge-in-chambers on the basis that the Assistant Registrar should also have ruled on the second ground in its favour but, in my view, such an appeal was unnecessary since Golden Shore was the successful party below and it could still rely on the second ground in its argument against UCO’s appeal.

4 After hearing submissions, I allowed UCO’s appeal. I was of the view that clause 17 was an exclusive jurisdiction clause but nevertheless, the stay should be refused. I made no order on Golden Shore’s appeal. Golden Shore has since appealed to the Court of Appeal.

5 I should add that there is a similar claim in Suit 1583/2001 by UCO against Golden Orient Maritime Pte Ltd as the owner of another vessel “ASEAN SUCCESS” on similar facts, the outcome of which followed the present action. There is likewise an appeal to the Court of Appeal in that action.

Background Facts

6 UCO is an Indian bank carrying on business in Singapore. At all material times it was its Singapore branch which was involved in the transactions which I am about to describe.

7 Golden Shore is a company incorporated in Singapore and, as I have said, was the owner of the vessel in question.

8 At all material times, SOM International Pte Ltd (“SOM”), a company also incorporated in Singapore, was a customer of UCO.

9 On various dates between September and December 2000, SOM applied to UCO for the issuance of letters of credit in favour of various vendors of Sarawak Round Logs. UCO accordingly did so. In January 2001 the vendors separately presented documents called for under the letters of credit, including the first set of bills of lading issued by the master of the vessel, through the negotiating bank HSBC. On receipt of the documents UCO paid HSBC a total of US$556,514.08 and became the holders of these bills of lading. I will refer to them as “the original bills”. The dates thereon were between 22 and 31 December 2000. The consignee named in the original bills is “to the order of UCO Bank”. The stated parties to be notified were SOM and UCO.

10 In the meantime, SOM requested Golden Shore to issue switched bills of lading which it did, through its agent Glory Ship Management Pte Ltd (“Glory Ship Management”), without requiring the original bills to be exchanged (i.e contemporaneously) for cancellation or UCO’s agreement that it would no longer rely on the original bills. It is not clear when the request was made and when the switched bills were actually issued but the dates thereon were between 22 to 30 December 2000. Subsequently, buyers in India presented to the agent of Golden Shore in Kandla the switched bills and obtained delivery of the logs between 15 and 25 January 2001 (see para 11 of the first affidavit of Sum Kam Weng who is the General Manager of Glory Ship Management).

11 According to UCO, SOM did not pay UCO in the meantime despite numerous promises to do so. It also transpired that UCO did not make any demand or claim for the logs until Rajah & Tann, who were the Singapore solicitors for Golden Shore and Glory Ship Management, wrote to UCO by fax dated 21 June 2001 to ask for the return of the original bills. It was then that UCO reverted on 3 August 2001, through its Singapore solicitors Shook Lin & Bok to reserve UCO’s rights against Golden Shore and subsequently to commence the present action on 20 December 2001.

Was clause 17 an exclusive jurisdiction provision?

12 It was not disputed that if clause 17 was a jurisdiction provision, it was an exclusive one. Clause 17 of the original bills states:

Claims. Any claims that may arise hereunder must be made at the port of delivery for determination and settlement at that port only. The Carrier’s liability in case of loss or damage to goods for which they are responsible within the limits of this Bill of Lading to be calculated on and in no case to exceed the net invoice cost and disbursement or pro rata on that basis in the event of partial loss or damage. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the Carrier or their agents at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or if, the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the Carrier of the goods as described in the Bill of Lading. In any event, the Carrier shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.

In no circumstances shall liability exceed the actual loss or damage sustained, the carrier shall not be liable for any consequential or special damages and shall have the option of replacing any lost or damaged goods. Any sum paid to or recovered by Customs Authorities under any Bond for exportation given by the shippers or owners of goods shall not be considered to form part of any actual loss or damage sustained by or in connection with such goods for which the carrier is or shall be liable. If the ship comes into collision with another ship as a result of the negligence of the other ship or object and any act, neglect or default of the master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the ship, the owners of the goods carried hereunder will indemnify the Carrier against all loss or liability to the other or non-carrying ship or object or the owners in so far as such loss or liability represents loss of, or damage to, any claim whatsoever of the owners of said goods, paid or payable by the other or non-carrying ship or object or her owners to the owners of said goods and set off, recouped or recovered by the other or non-carrying ship or object or her owners as part of their claim against the carrying ship or Carrier. At any port where, in accordance with Customs regulations, the goods have to be landed into the charge of the Customs or other Authorities no claims for shortage or damage will be considered by the Carrier, beyond that noted by the Authorities at the time of receiving the goods into their charge.

In the case of any actual or apprehended loss or damage, the Carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods. The carrier shall not be liable to pay any compensation if the nature or the value of the goods has been wilfully mistated. The above includes claims in the nature of General Average.

This clause in its entirety shall also apply in any case of loss sustained as a result of mis-delivery, non-delivery, wrongful delivery or delivery to any person whomsoever not entitled to the goods. [Emphasis added]

13 Mr Sarjit Singh Gill SC, Counsel for UCO, submitted that the first sentence of clause 17 required only “claims” to be made at Kandla being the port of delivery and “claims” meant written demands but not suits. He pointed out that in the last sentence of the first paragraph of clause 17 the word “suit” was used and argued that this demonstrated that “claims” must mean nothing more than notification of loss or damage. Otherwise, there would not have been the use of two different words (see para 22 of his written submission). Accordingly, his submission was that clause 17 was not a jurisdiction provision.

14 Mr Gill’s next argument for this proposition was that if the word “claims” was to include suits, such an interpretation would be incongruous in the context of clause 17. For example, the words, “no claims for shortage or damage will be considered by the Carrier” could not be read to mean “no suits will be considered by the Carrier”. Likewise the words “The above includes claims in the nature of General Average” could not mean “The above includes suits in the nature of General Average”.

15 Mr Gill also referred to the words “At any port where … the goods have to be landed into the charge of the Customs or other Authorities no claims … will be considered by the Carrier, beyond that noted by the Authorities at the time of receiving the goods into their charge”. He asked rhetorically whether suit had to be commenced at, say, an African port if the logs had for some unexpected reason to be landed at an African port instead of at Kandla. In my view, this submission was misplaced because the words Mr Gill referred to did not amount to a jurisdiction provision but were for a different purpose. They merely meant that Golden Shore was not obliged to meet any claim for more than what would have been noted by the relevant authorities.

16 Mr Gill then contrasted clause 17 with clause 6 which states:

… Claims for services by other vessels belonging to the carrier, wherever rendered, may be adjudicated upon in the Singapore Court whose decisions shall bind the owners of the...