Court of Appeal, Singapore

Wee Chong Jin CJ, TS Sinnathuray J, LP Thean J

14 September 1989

KEYWORDS

Bill of Lading – Cargo Claim – Singapore Jurisdiction Clause – Voluntary Application of Art. III(6) Hague Rules by Contract – Contractual One Year Period Time Limit – Admiralty Action in Rem – Application to Amend Writ in Rem to add two Sister Ships after Contractual Limitation Period – Conditional Appearance entered – Nature of Action in Rem when Conditional Appearance entered, when Unconditional Appearance entered, when no Appearance entered – When No Appearance, only Res Liable – When Unconditional Appearance, both Res and Owner Liable, Liability of Owner not limited to value of Res

FACTS AND DECISION

Cargo of cotton sheets were carried from Karachi (in Pakistan) to Singapore under two bills of lading on board the vessel Brani. The bills provided Singapore laws to be the governing law. They also provided one year time limitation to bring any suit and incorporated the Hague Rules, which too provided for one year time limit by Art. III(6).

The cargo arrived damaged and the cargo owner took an admiralty action in rem within the one year limitation period against the owners of the Brani Island.

After the one year limitation period, the cargo owner applied ex parte (without notice) to amend the writ (equivalent to ‘claim form’ in England and Wales) change the description of the defendant as the owners of the Brani Island, Senang Island and Kusu Island. The last two are sister ships of the Brani. The registrar allowed the application. Subsequently, the cargo owner arrested Kusu Island and the shipowner entered an unconditional appearance (equivalent to ‘acknowledgement of service’ in England and Wales with option of intent ‘to contest jurisdiction’ selected) and applied to strike out the amendment made.

First, the court dealt with the question whether addition of a res in an action in-rem was equivalent to addition of a defendant, even when the owner of all the res was the same person. In an action in-rem, if the defendant does not enter appearance (or enters conditional appearance), then the liability is only on the res and limited to the res. If the owner enter unconditional appearance and thereby submits to the jurisdiction of the court, the liability is also on the owner and it is not limited to the value of the res against the owner. Accordingly, when issued, the writ is only against the res, despite being described as the owners of the res. Thus, the court answered the question in the affirmation.

Second, the court considered the question whether res may be added, by amendment to the description of the defendant, after the contractual limitation period. The court answered this question in the negative, as the amendment sought was not a mere correction to the name of the res-defendant, but to add to it.

Accordingly, the court struck out the amendment and set aside the service of the same on the Kusu Island.

Overview by ARUN KASI