Ventura Navigation Inc v Port of Singapore Authority and Another

• Court: High Court (Singapore)
• Judge: Chan Sek Keong J
• Judgment Date: 24 May 1989
• Neutral Citation: [1989] SGHC 53
• Citation: [1989] SGHC 53
• Defendant Counsel: MP Rai (Niru & Co),G Pannirselvam and Steven Chong (Drew & Napier),Steven Chong (Drew & Napier),Ian Ng (Prakash Gurbani & Chong),Scott Thillagaratnam (Khattar Wong & Partners)
• Plaintiff Counsel: Loo Dip Seng (Ang & Partners)
• Published date: 19 September 2003
• Docket Number: Admiralty in Personam No 343 of 1987
• Date: 24 May 1989
• Subject Matter: 'Ship',s 14 Prevention of Pollution of the Sea Act 1971,'Liability',ss 3 & 18 Merchant Shipping (Oil Pollution) Act 1981,Prevention of Pollution of the Sea Act 1971,s 29 Merchant Shipping Act (Cap 172, 1970 Ed),Preliminary question of law,Cleaning up costs,s 18 Merchant Shipping (Oil Pollution) Act 1981,Words and Phrases,Oil pollution,S 18 Merchant Shipping (Oil Pollution) Act 1981,Admiralty and Shipping,Oil escaping from non-oil tanker,Whether liability limited

Cur Adv Vult

The issue as stated to the court as a preliminary point of law concerns the extent of the liability of the plaintiffs to the first defendants for the cost of the measures taken by the first defendants in 1987 to prevent oil pollution damage in the area of Singapore. Although there are nominally six defendants in this action, only the first defendants and the plaintiffs are parties to the preliminary point of law. The following facts have been agreed:

(1) The plaintiffs were the owners of the `Stolt Advance`, a motor tanker of about 14,418 tonnes (gross) and 9,792 tonnes (net) with a deadweight of 22,908 tonnes. At the material time, she was carrying about 12,476 metric tonnes of various types of chemicals.

(2) She also had on board approximately 1,505 metric tonnes of fuel oil, 213 metric tonnes of diesel oil, 30 metric tonnes of lubrication oil, 50 metric tonnes fresh water and 1,100 metric tonnes of ballast. She was not carrying any cargo of oil in bulk.

(3) On her voyage to Taiwan the vessel was grounded on the edge of a reef due cast of Batu Berhanti light in the approximate position latitude 01 degree 11.10 minutes north and longitude 103 degrees 53.38 minutes east on 7 July 1987.

(4) Negligence of the servants or agents of the plaintiffs in the navigation or management of the vessel caused or contributed to the grounding.

(5) As a result of the said grounding, the vessel ruptured her forward deep tank and oil (intermediate fuel oil) from her bunkers escaped into the sea. The said oil was washed into the waters of Singapore and the waters of West Malaysia off south-east Johore.

(6) Following the entry of the oil into Singapore waters, the first defendants and agents appointed by them took measures to remove or eliminate the oil in order to prevent and reduce damage caused by the oil pollution in Singapore waters. In respect of such measures, the first defendants have incurred expenses amounting to $1,376,468. The first defendants are entitled to recover the costs of such measures from the plaintiffs by virtue of s 14 of the Prevention of Pollution of the Sea Act 1971 (the PPSA 1971) (as amended by the Prevention of Pollution of the Sea (Amendment) Act 1981 (the PPS(A) 1981 and, collectively, the PPSA 1971-81).

(7) The said oil pollution also caused loss and damage to a number of other parties of whom the following had made claims against the plaintiffs:

(i) ) the third defendants for $401,050 in respect of damage to their property, loss of profits and general damages;

(ii) ) the fourth defendants for $198,997.30 in respect of damage to their property and cleaning up costs, loss of profits and general damages;

(iii) ) the fifth defendant for $1,397.750 in respect of damage to fish farm, loss of larvae fries and fingerlings and damage to equipment;

(iv) ) the sixth defendant for $30,000;

(v) ) Singapore fish farmers through the Primary Production Department for $1,369,952.70;

(vi) ) Malaysian fish farmers through the Director of Fisheries, Johore, Malaysia for S$95,850

The dispute between the plaintiffs and the first defendants turns on the meaning of s 18 of the Merchant Shipping (Oil Pollution) Act 1981 (the MSOPA 1981) and its effect on s 14 of the PPSA 1971-81. Both statutory provisions are concerned with the recovery from the owners of vessels which have discharged oil into the sea in or around Singapore by the persons who have taken measures to prevent damage from such discharge. The basic approach of the plaintiffs to the effect of the two statutory provisions is that they should be read as covering the same liability whereas the basic approach of the first defendants is that s 18 of the MSOPA 1981 deals with oil pollution by oil tankers whereas s 14 of the PPSA 1971-81 deals with oil pollution by non-oil tankers. The `Stolt Advance` was not an oil tanker.

The PPSA 1971 and MSOPA 1981 are relatively new legislation in the field of environmental law enacted to regulate and impose liability on owners and operators of ships which discharge oil of any kind, toxic wastes, garbage, trade effluent, etc into or around Singapore waters thereby polluting the same and causing damage to the environment in general and property in particular. Potential environmental damage to wild life and flora of coastal states all over the world took on a new dimension and urgency with the advent of large crude oil bulk carriers (the VLCCs) which were built to carry hundreds of thousands of tons of crude oil as cargo at any time, and in the event of a casualty, were liable to discharge the same into the sea.

The PPSA 1971 was enacted to give effect to the International Convention for the Prevention of Pollution of the Sea by Oil 1954. It came into force on 1 February 1972, except for s 13. Section 3 makes it an offence for a Singapore ship to discharge any oil or mixture (as defined) into any part of the sea outside the territorial limits of Singapore and s 4 makes it an offence for any vessel to discharge any oil or mixture into Singapore waters. These are strict liability offences and s 5 provides special defences to an owner, master or agent where it is proved that the discharge of the oil or mixtures is necessary or reasonable for the purpose of securing the safety of the vessel or preventing damage to any vessel or cargo or of saving life.

In relation to civil liability, the original s 13 provided that the owner of any vessel should be liable to pay the cost of measures taken by the appointed authority (viz the first defendants) in removing or eliminating the oil, mixture containing oil, garbage, waste matter substance of a dangerous or obnoxious nature or trade effluent. Liability under s 13 was without fault and also unlimited.

The next piece of Singapore legislation in the area of environmental law was the Civil Liability (Oil Pollution) Act 1973 (the CLOPA 1973) which came into force on 1 October 1973. The CLOPA 1973, inter alia, repealed s 13 of the PPSA 1971. This Act also imposed strict liability on, inter alia, the owner of a ship for oil pollution damage caused in the area of Singapore resulting from the discharge or escape of oil of any kind from the ship, whether such oil was carried in bulk as cargo or otherwise: see s 3. The liability of the shipowner extended to (a) any damage caused by contamination resulting from the discharge or escape of oil; (b) the cost of measures reasonably taken after the discharge or escape of oil for the purpose of preventing or reducing any such damage; and (c) any damage caused by any measures so taken.

In relation to the liability of the shipowner under s 3, s 6(1) of the CLOPA 1973 provided as follows:

Where the owner of a ship incurs a liability under s 3 by reason of a discharge or escape which occurred without his actual fault or privity

(a) section 295 [now s 272] of the Merchant Shipping Act shall not apply in relation to that liability; but

(b) his liability (that is to say, the aggregate of his liabilities under section 3 resulting from the discharge or escape) shall not exceed three hundred and seventy-five dollars for each ton of the ship`s tonnage nor (where that tonnage would result in a greater amount) fifty million dollars.

The object of s 6(1) was clearly to increase the liability of a shipowner as hitherto provided by s 295 (s 272) of the Merchant Shipping Act (`the MSA`). However, in respect of expenses incurred by persons who had taken reasonable measures to prevent or reduce damage, s 10 provided as follows:

(1) Where

(a) after an escape or discharge of oil from a ship, offshore facility, or onshore facility, measures are reasonably taken for the purpose of preventing or reducing damage in the area of Singapore which may be caused by contamination resulting from the discharge or escape; and

(b) any person incurs, or might but for the measures have incurred, a liability, otherwise than under section 3 , for any such damage, then, notwithstanding that paragraph (d) of subsection (1) of that section does not apply, he shall be liable for the cost of the measures, whether or not the person taking them does so for the protection of his interests or in the performance of a duty.

(2) For the purpose of section 295 [272] of the Merchant Shipping Act, any liability incurred under this section shall be deemed to be a liability to damages in respect of such loss, damage or infringement mentioned in paragraph (d) of subsection (1) of that section.

In 1981 the MSOPA 1981 was passed by Parliament to give effect to the International Convention on Civil Liability for Oil Pollution Damage (`the Civil Liability Convention`) done in Brussels on 29 November 1969 and the Protocol done in London on 19 November 1976. The Civil Liability Convention was signed following the stranding of the Torrey Canyon in March 1967 when about 100,000 tons of crude oil were discharged into the...