Voss Peer v APL Co Pte Ltd

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeJudith Prakash J
Judgment Date23 April 2002
Neutral Citation[2002] SGHC 81
Citation[2002] SGHC 81
Subject Matter'Straight bill of lading',Admiralty and Shipping,Words and Phrases,Carriage of goods by sea,'Order bill of lading',Distinction between bill of lading and sea waybill,Distinction between 'order bill' and 'straight bill',Whether carrier can discharge cargo without production of bill of lading,Nature of carrier's delivery obligation,Bill of lading containing only name of consignee,'Sea waybill'
Plaintiff CounselIan Koh and Bryan Tan (Drew & Napier LLC)
Defendant CounselGan Seng Chee (Ang & Partners)
Docket NumberAdmiralty Action in Personam No 600213 (Registrar's Appeal No 600202 of 2001)
Date23 April 2002
Published date19 September 2003

Judgment

GROUNDS OF DECISION

1. The plaintiff, Mr Peer Voss, carries on business in Germany as a seller of automobiles under the style of Peer Voss Automobiles. In August 2000, Mr Voss sent out a circular to various customers in Korea in which he offered for sale one model CLK320 convertible Mercedes Benz motorcar with a silver body and black leather interior at a C&F price of DM108,600. This desirable vehicle was snapped up by a company called Seohwan Trading Co Ltd of Seoul, Korea (‘Seohwan’) on 15 August 2000.

2. Seohwan having made a down payment of DM48,500, Mr Voss arranged for shipment of the car to them. Through his forwarding agents he entered into a contract of carriage with the defendants, APL Co. Pte Ltd (‘APL’), who agreed to carry the car on board the vessel ‘Hyundai General’ from Hamburg to the port of Busan, South Korea. The car was loaded on board the vessel on 28 August 2000.

3. In respect of the shipment and the contract of carriage, APL issued at Bremen, Germany, on 28 August 2000, a document entitled ‘Bill of Lading’ bearing the number ‘APLU 701416646’. The bill of lading, as is customary, contained several blank boxes with printed headings which were then completed by the parties. In the box entitled ‘Shipper’, Mr Voss’s full name and address were inserted. The box entitled ‘Consignee’ contained the following printed words:

‘(Name and Full Address/Non-Negotiable Unless Consigned to Order)
(Unless provided otherwise, a consignment "To Order" means to Order of Shipper.)

Typed into the box were Seohwan’s full name and address. That was all. The words ‘Or Order’ did not appear in this box. The consignee box was followed by a ‘Notify Party’ box and that was also completed by the insertion of Seohwan’s full name and address. At the bottom of the front page of the document, just above APL’s signature the following words appeared:

‘A set of 3 originals of this bill of lading is hereby issued by the Carrier. Upon surrender to the Carrier of any one negotiable bill of lading, properly endorsed, all others shall stand void.’

The bill of lading also bore the endorsements ‘Freight Prepaid’, ‘Shipped on board Aug. 28, 2000’ and ‘Original BL’.

4. The three original bills of lading were released to Mr Voss and he then sent an invoice dated 28 August 2000 to Seohwan for the full price of DM108,600. He retained the bills pending receipt of the balance due from Seohwan, ie DM60,100. Mr Voss asserts that todate this money has not been paid.

5. The vessel arrived at Busan sometime in the third week of September 2000 and the car was duly discharged into the custody of APL’s Korean office. On 25 September, a man named Seoh Pyung Hwan went to that office and identified himself as being from Seohwan. He claimed delivery of the car. He produced two documents, namely a copy of a commercial invoice from Peer Voss Automobile to Seohwan dated 22 September 2000 for DM107,500, and a copy of an outgoing cable from the Korea Exchange Bank to a bank in Frankfurt purporting to show a remittance of DM207,500 to Mr Voss in respect of this vehicle and of another transaction as well. On the basis of these documents, APL’s Korean office authorised the release of the car into Seohwan’s custody the same day.

6. The next day, Mr Voss’s forwarders told APL’s Hamburg office not to release the cargo to Seohwan without production of the original bill of lading. Following this conversation Mr Kim of APL’s Korean office spoke to the consignee on more than one occasion and the consignee insisted that payment had already been made to Mr Voss but that there were disputes between Seohwan and Mr Voss regarding other transactions which were not related to this shipment.

7. In November 2000, Mr Voss wrote to Seohwan demanding payment of the balance sum by 7 November 2000. No reply was received. In mid December 2000, he wrote to APL’s Hamburg office regarding the alleged mis-delivery of the cargo and demanded that they pay the balance sum. APL refused to make payment as it took the position that it had been entitled to make delivery to Seohwan as the named consignee without production of the original bill of lading.

8. This action was commenced in May last year. Mr Voss claimed that in breach of the contract of carriage or in breach of their duty as bailee and/ or negligently APL had failed to exercise due care with the cargo and had failed to deliver the cargo against presentation of the original bill of lading and instead delivered it to Seohwan, the consignee, who did not have or present or produce the original bill of lading. He therefore claimed the balance sum of DM60,100 from APL.

9. In June 2001, Mr Voss made an application for summary judgment. This was followed by an application from APL for the determination of the following question under O 14 r 12 of the Rules of Court:

Whether, on the construction of the bill of lading, APLU 701416646, APL was entitled to deliver the cargo described therein without production of the original bill of lading.

The two applications were heard together before the Deputy Registrar, Mr Foo Chee Hock, who found in favour of Mr Voss and consequently made the following order:

(1) on the true construction of the shipping documents, in particular the bill of lading as exhibited at "PV-1" of the plaintiff’s first affidavit filed the 19th day of June 2001, the Defendants were contractually not entitled to release the cargo described therein without production of the original bill of lading, the clear inference from the undisputed objective evidence being that the parties had contracted on the basis that the original bill of lading would be produced against delivery of the cargo described therein.

(2) There being no defence to the claim, final judgment be entered for the plaintiff against the defendants for the sum of DM60,100.00 or its Singapore dollar equivalent.

The Deputy Registrar also ordered APL to pay interest and costs. APL appealed against the whole of this order.


Did the contract of carriage require production of the bill of lading for delivery of cargo?

10. The submission made on behalf of Mr Voss was that it is a firmly established principle of law in the mercantile world that in a contract for the carriage of goods by sea, delivery of the cargo is to be made at the discharge port by the carrier to the consignee only upon the production by the consignee of the original bill of lading. This principle is implied into all contracts for the carriage of goods by sea. In support counsel cited the well known observation of Lord Denning that ‘It is perfectly clear law that a ship-owner who delivers without production of the bill of lading does so at his peril. The contract is to deliver, on production of the bill of lading, to the person entitled under the bill of lading’. See Sze Hai Tong Bank v Rambler Cycle Co. Ltd [1959] 25 MLJ 200 at 201.

11. APL’s reply was that Lord Denning’s observation and similar remarks made by other judges applied only to the situation where the bill of lading issued was a ‘to order’ bill of lading. If the bill made the goods deliverable to a specific person as consignee and did not contain any words importing transferability, the carrier’s duty was simply to deliver the goods to the consignee on proof of identity. The carrier would not need to obtain the original bill of lading (or any one of the original bills of lading) from the consignee in order to make delivery. It was common ground that the bill issued by APL was not an order bill since the consignee box contained Seohwan’s name only.

12. The basic issue therefore to be considered was whether when it came to delivery, there was a distinction between the delivery of goods covered by a bill of lading that was made out ‘to order’ or ‘to bearer’ and commonly known as an order bill of lading and one that specified the name of the consignee without the addition of the words ‘to order’ or ‘assigns’. This latter type of bill of lading has been referred to variously as a ‘non-negotiable’ bill of lading, a ‘straight consigned’ bill and a ‘straight bill’. In this judgment I will call it a straight bill.

13. This issue was last considered by this court in Olivine Electronics Pte Ltd v Seabridge Transport Pte Ltd [1995] 3 SLR 143, where the facts were practically identical with the facts here. In that case, the plaintiffs were the shippers of a cargo of colour television sets which was carried by the defendants on board the vessel Leeward from Singapore to Vostochny, Russia. A company called Orient Plus was named as the consignee and the notify party in the bill of lading. On arrival of the cargo at Vostochny, it was delivered by the defendants to Orient Plus without production of the bill of lading. The...

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