Court Of Appeal, Singapore

Wee Chong Jin CJ, Lai Kew Chai J, Fa Chua J

13 May 1982

KEYWORDS

Bill of Lading – Cargo Claim in the name of ‘Owners of the Cargo’ – Shipper’s address given as Plaintiff’ address – Plaintiff asked for and obtained Security in name of Shipper – Shipper was not the consignee or bill of lading holder – Plaintiff maintained argument Shippers are interested (Dunlop v Lambert 1839) – Application by Plaintiff to Amend Claim after Limitation Period – Court Refused Amendment

FACTS AND DECISION

Automotive spare parts carried on board vessel Kota Pahlawan from Singapore to Jakarta (Indonesia) under a bill of lading. Shipper was a Singapore company. The bill was issued to order of a bank. Party to notify was an Indonesian company. Hague-Visby Rules was applicable (by Singapore Carriage of Goods by Sea Act 1972 (Cap 30) now renamed as Carriage of Goods by Sea Act (Cap 33)). The shipper requested the Art. III(6) one-year time limit to be extended by four months, which the carrier agreed. Within the extended time, an action in rem was filed in the name of “Owner of the Cargo …”. The plaintiff requested security by bank guarantee in the name of the shipper in order not to arrest the ship, which the carrier accordingly furnished. The carrier did not file appearance (equivalent to ‘acknowledgement of service’ in England and Wales), hence the plaintiff secured default judgement. The carrier successfully applied to set aside the default judgment on grounds (among others) that the plaintiff was not the indorsee of the bill of lading. At this point, the plaintiff applied to amend the writ (equivalent to ‘claim form’ in England and Wales), seeking to name the indorsee of the bill as the plaintiff. By then, time limitation had already set in.

From the fact that the shipper’s address was given as the plaintiff’s address and that the security was  requested and given in favour of the shipper, the court decided that the true identity of the plaintiff in the original writ was the shipper rather than owners of the cargo (which could in effect mean the indorsee of the bill). The court found that the amendment sought now was to change the identity of the plaintiff, and not merely to correct the name of any plaintiff where the mistake was a genuine one and not misleading as to identity of the plaintiff. Accordingly, the court held that the amendment did not fall within Order 20 rules 5(2) and 5(3) of the Rules of the Supreme Court 1970 and refused the amendment.

OBSERVATION

The Rules of the Supreme Court 1970 is the predecessor to the current Rules of Court. The current Rules has the an identical provision with the same reference. The Order 20 rules 5(2) and 5(3) read as follows:

(2) Where an application to the court for leave to make the amendment mentioned in para (3) … is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) An amendment to correct the name of a party may be allowed under para (2)  notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

An identical provision is found in the current Rules of Court 2012 in Malaysia by the same reference.

In England and Wales, amendment and changes to parties after the period of limitation has expired is regulated by CPR Rules 17.4 and 19.5. However, both the rules are limited to cases where limitation is set by the Limitation Act 1980, Foreign Limitation Periods Act 1984 or any other enactment allowing such amendment or change. As the one-year time limit is not from any of the three legislations named in the CPR, but from Art. III(6) of the Hague-Visby Rules incorporated by the Carriage of Goods by Sea Act 1971, the CRP rules will not apply to cargo claims. Thus, any amendment or change to parties in cargo claims will be governed by common law.

Overview by ARUN KASI