Zarkovic Stanko v Owners of the Ship or Vessel `MARA`

• Judge: Chao Hick Tin JA
• Judgment Date: 01 September 2000
• Neutral Citation: [2000] SGCA 47
• Citation: [2000] SGCA 47
• Defendant Counsel: Jainil Bhandari and Kelly Yap (Rajah & Tann)
• Published date: 19 September 2003
• Plaintiff Counsel: Belinda Ang SC and Goh Phai Cheng SC (Ang & Partners)
• Date: 01 September 2000
• Docket Number: Civil Appeal No 207 of 1999
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether this case an exception to rule against double recovery,Whether fitter able to claim under employment contract in addition to settlement sum,Contract,Article 15 of International Transport Workers Federation collective agreement part of employment contract,Admiralty and Shipping,Admiralty jurisdiction and arrest,Personal injury,Fitter injured while working on board ship,Whether court has jurisdiction,Ship owner paying fitter settlement sum for tort claim,Contractual terms,s 3(1)(f) High Court (Admiralty Jurisdiction) Act (Cap 123),Claim for compensation under employment contract

(delivering the judgment of the court): This appeal raises two important questions of law. The first is whether the High Court has jurisdiction under s 3(1)(f) of the High Court (Admiralty Jurisdiction) Act (Cap 123) (`the Act`) to hear and determine the claim of the appellant for a sum of US$122,400 under the contract of employment made between him and his employer, the respondents, in respect of the personal injuries sustained by him in the course of his employment on board the respondents` ship, MARA (`the ship`). The second is whether the appellant having been paid a sum of US$420,000 plus costs pursuant to a settlement agreement made on 8 August 1998 under O 70 r 34 of the Rules of Court is entitled to recover the sum of US$122,400 under his contract of employment. In the court below, the learned judge held that the appellant`s claim for this sum under the employment contract does not fall within the provisions of s 3(1)(f) of the Act and therefore the court has no jurisdiction to hear and determine the claim, and further that even if the claim falls within that section, the appellant would not be entitled to recover the sum on the ground that it would amount to double recovery. He accordingly dismissed the claim. Against his decision this appeal is now brought.

The facts

The appellant was employed as a fitter on the ship pursuant to a shipboard contract dated 1 July 1992 made between him and the respondents, which incorporated the terms of a collective agreement dated 16 July 1991 and made between the respondents and the International Transport Workers Federation (`collective agreement`). On 6 September 1992, the ship was anchored in the anchor area of Wielingen Noord near Vissingen in the Netherlands. On that morning, the appellant was instructed by the chief engineer and the first engineer to move the antenna of the satellite navigation system. In doing so, he needed some fastening clips which were stored in a workplace in the engine room. He accordingly took the ship`s internal elevator from the bridge deck for the purpose of going to the engine room. The elevator stopped at the landing, which was about 5 to 6 metres above the floor where the engine room was situated. On stepping out to the landing, he saw another seaman at work. While trying to assist that seaman, he was hit on his left shoulder from behind by an engine valve, which had come loose. He was pushed off the landing and fell onto the engine room below. Immediately following his fall, the engine valve weighing 1300 to 1350 kg rolled off the landing and fell onto him below.

As a result of the accident, the appellant suffered serious injuries and became permanently disabled. About three years later, he instituted an admiralty action in rem against the ship in the High Court, invoking the admiralty jurisdiction of the court, and claimed damages for the personal injuries sustained and the loss and expenses incurred by reason of the accident on board the MARA. In the statement of claim, as subsequently amended, the appellant by [para ] 7, 8 and 9 claimed as follows:

7 The plaintiff`s aforesaid pain and suffering, loss of amenities, injuries and expense were caused by the breach of duty and/or breach of the contract of employment and/or negligence of the defendants and/or their servants or agents, whom they are vicariously liable for, as particularised hereunder.

Particulars

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8 Further or in the alternative, the plaintiff`s aforesaid pain and suffering, loss of amenities, injuries and expense were caused by the breach of the defendants` duty, as occupier of the vessel, to the plaintiff who was on board the vessel pursuant to a contract made between the plaintiff and the defendants.

Particulars

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9 Further, it was a term of the contract of employment that the plaintiff would be paid compensation in the event of his suffering injury under art 15 of the collective agreement dated 16 July 1991. The compensation payable to the plaintiff in this regard amounts to US$122,400.00 plus interest and is without prejudice to such damages the plaintiff is entitled to claim at law.

Particulars

...

The claim for the sum of US$122,400 with interest was founded on art 15 of the collective agreement which was incorporated into and was part of the terms of the employment contract. We shall refer to the terms of art 15 in detail in a moment.

The claim was initially resisted and a defence was filed and served by the respondents. In the defence, the issues on liability and quantum were joined. But no issue was raised as to the jurisdiction of the court. The action proceeded and affidavits of evidence-in-chief were filed by or on behalf of both parties. On 8 August 1998, which was shortly before the trial, the parties reached a settlement, which was embodied in a settlement agreement. That agreement was filed in court pursuant to O 70 r 34 of the Rules of Court, and in consequence under r 34 became an order of court and had the same effect as if it had been made by a judge. The agreement provided as follows:

(a) Without any admission of liability, the defendants agree to pay the plaintiff the settlement sum comprising US$420,000 plus costs to be taxed if not agreed in full and final settlement of all the plaintiff`s claims in the re-amended statement of claim re-filed on 16 February 1998, save for the plaintiff`s claim for US$122,400 (or alternatively damages to be assessed) pursuant to paras 9 and 10 of the said re-amended statement of claim.

(b) This agreement is strictly without prejudice to the defendant`s rights to challenge the plaintiff`s claim for US$122,400 (or alternatively damages to be assessed) pursuant to paras 9 and 10 of the said re-amended statement of claim, and the agreement to pay the settlement sum to the plaintiff in full and final settlement of all the plaintiff`s claims other than the plaintiff`s claim in paras 9 and 10 of the said re-amended statement of claim is not to be a waiver or diminution of the defendants` rights as such, which continue to remain expressly reserved.

(c) Upon the defendants` payment to the plaintiff of the settlement sum, the parties agree to continue this action solely on the issue of whether the plaintiff is entitled to claim for US$122,400 (or alternatively damages to be assessed) pursuant to paras 9 and 10 of the said re-amended atatement of claim (and if so, the quantum of such damages), notwithstanding that the defendants have paid or agreed to pay the settlement sum in full and final settlement of all the plaintiff`s claims in the re-amended statement of claim other than the plaintiff`s claim made under paras 9 and 10 of the said re-amended statement of claim.

We should mention that during the negotiations leading to the settlement agreement, the respondents` stand was that, as the appellant was legally entitled to be paid contractual compensation under art 15, this amount ought to be deducted from the appellant`s claim for loss of future earnings. Their contention was that the appellant was not entitled to recover the sum of US$122,400 under art 15 or any sum, in addition to the US$420,000 received under the settlement agreement. The appellant, on the other hand, maintained that the sum under art 15 was in addition to any sum payable under the settlement agreement. This difference was not resolved, and the settlement was therefore expressly made without prejudice to the claim of US$122,400 which remained outstanding.

On 1 April 1999, the appellant took out an application by way of summons for further directions, seeking a determination of the following:

(i) Whether the plaintiff, having recovered US$420,000.00 plus costs under the agreement dated 8 August 1998, is entitled to claim compensation under art 15 of the applicable FIT/CISL collective agreement.

(ii) On the basis that the annuity under the said art 15 is agreed at US$4,896.00 per annum.

(a) Whether this annual annuity is payable to the plaintiff each year of his life and only ceases when the plaintiff dies, or is it payable from the date of the accident for the remainder of the plaintiff`s working life (ie up to retirement age).

(b) Given that the contract of employment is subject to Maltese law and that Maltese retirement age is 60 years, what is the appropriate multiplier to be applied in the computation of the lump sum amount under art 15 of the collective agreement.

(c) Whether the lump sum compensation payable under the said art 15 is subject to deduction for the accelerated payment received by the plaintiff.

The application was heard before the assistant registrar on 1 June 1999, who determined that the appellant was not precluded from bringing a claim under art 15 but held that there should not be double recovery in the quantification of damages and that the annuity is payable to the appellant from the date of the accident for the remainder of the appellant`s natural life. The appellant appealed to a judge-in-chambers.

The decision below

Before the learned judge, for the first time, the issue of jurisdiction of the court was raised. It is common ground that in bringing the claim the appellant invoked the admiralty jurisdiction of the court under s 3(1)(f) of the Act. The learned judge held that the court had no jurisdiction to hear and determine the appellant`s claim for any sum under art 15. In reaching this conclusion, he relied on the English case of The Moliere [1925] P 27. In that case, the court held that the admiralty jurisdiction in respect of loss of life or personal injury was limited to a claim for damages arising by reason of a tort, and did not include a claim for statutory compensation payable irrespective of fault. Following the decision in that case, the learned judge held that, as the compensation under art 15 of the collective agreement is payable irrespective of fault, it is therefore outside the ambit of the court`s admiralty...