HIGH COURT OF MALAYA
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www.ipsofactoJ.com/highcourt/index.htm [2003] Part 3 Case 4 [HCM] |
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HIGH COURT OF MALAYA |
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"The Able Lieutenant"; Kawasaki Kisen Kaisha Ltd - vs - Owner of Vessel |
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ZULKEFLI AHMAD MAKINUDDIN J |
26 AUGUST 2002 |
Judgment
Zulkefli Ahmad Makinudin, J
FACTS OF PLAINTIFF'S CASE
The plaintiff's claim as indorsed on the writ of summons is as follows:
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The plaintiff, as charterer of the defendant's ship or vessel "Able Lieutenant" under a charterparty dated October 2, 2000 claimed damages for the loss and damages suffered by it by reason of the defendant's breach of the said charterparty together with interest and costs. The defendant in this action is Able Shipping Sdn Bhd ["Able Shipping"] who executed the said charterparty in its capacity as owner of the vessel "Able Lieutenant" and is also the registered owner of the vessel "Able Lieutenant" which is registered at the port of registry, Port Klang. The plaintiff issued the writ of summons on November 24, 2001. On November 29, 2001, the plaintiff obtained a warrant of arrest for the vessel "Able Lieutenant" and on the same day the warrant was executed and the ship arrested in Port Klang. On December 4, 2001, Pan Ocean Shipping Sdn Bhd ["Pan Ocean"] claiming to be the beneficial owner of the ship "Able Lieutenant", entered a conditional appearance as defendant as of right. On December 6, 2001, Able Shipping, the proper defendant and registered owner of the ship "Able Lieutenant" entered a conditional appearance as defendant also as of right. |
PURPOSE OF ARREST OF SHIP IN ADMIRALTY ACTION IN REM
At the outset, it is also important to note that the purpose of arresting a ship in an action in rem is to obtain security for the satisfaction of any judgment which the plaintiff may obtain, or of any sum which may become payable to him under a settlement of such an agreement. In practice, this threat of arrest provokes the owners into providing voluntary security, for example by way of either a bank or insurance company guarantee, or letter of undertaking or filing a bail bond. The court does not have any jurisdiction to arrest or keep the ship under arrest for other purposes. Such security will ensure that the plaintiff's prospects of recovery are not hampered by any transfer of ownership in the ship or any financial impecuniosity of the shipowner. If security is not furnished by the shipowner, the arrest of the ship will be maintained until such step is taken by the plaintiff under the in rem process to seek from the court a judicial sale order of the ship.
PAN OCEAN'S NOTICE OF MOTION - Encl. (29)
In the motion taken out on December 14, 2001, Pan Ocean, which has entered a conditional appearance as the beneficial owner of the vessel "Able Lieutenant" in the above suit, seeks the following orders:
to set aside the writ of summons dated November 24, 2001;
to strike out the writ for abuse of the court process and/or frivolous and vexatious;
to set aside the warrant of arrest issued for the vessel "Able Lieutenant";
to forthwith release the vessel "Able Lieutenant" from arrest;
alternative to iv, to discharge any security furnished for the release of the vessel "Able Lieutenant" and for the return of the security to Pan Ocean;
to assess the damages for wrongful arrest suffered by Pan Ocean;
costs and costs of the motion to be borne by the plaintiff;
such other relief that this honourable court thinks fit and just.
DEFENDANT'S SUMMONS IN CHAMBERS - Encl. (31)
In the summons in chambers taken out on November 19, 2001, the defendant, Able Shipping who had entered conditional appearance in the above suit seeks the following orders:
to set aside the writ of summons dated November 24, 2001 and its service and all further proceedings in this action;
alternatively, to strike out the indorsement of claim in the writ of summons dated November 24, 2001 under Ord. 18 r 19(1)(b) of the RHC 1980 and under the inherent jurisdiction of the court for the reason that it is scandalous, frivolous or vexatious and detrimental to the beneficial owners of the ship or vessel "Able Lieutenant";
alternatively, to strike out the indorsement of claim on the writ of summons dated November 24, 2001 under Ord. 18 r 19(1)(c) of the RHC 1980 and under the inherent jurisdiction of the court for the reason that it may prejudice, embarrass or delay the fair trial of the action;
alternatively, the indorsement of claim on the writ of summons dated November 24, 2001 be struck out under Ord. 18 r 19(1)(c) of the RHC 1980 and under the inherent jurisdiction of the court for the reason that it is an abuse of the court process;
to set aside the warrant of arrest dated November 29, 2001 on the ship or vessel "Able Lieutenant";
that the ship or vessel "Able Lieutenant" presently under arrest in Port Klang be released from arrest forthwith;
that costs be assessed and paid out by plaintiff to Able Shipping Sdn Bhd forthwith;
that Able Shipping Sdn Bhd be given all further relief or other relief as the honourable court thinks fit and just.
PLAINTIFF'S
SUMMONS IN CHAMBERS - Encl. (39)
The plaintiff
took out a summons in chambers on January 4, 2002 in
Encl. (39)
for several prayers. On January 8, 2002 this court directed that the following
prayers [in Encl. (39)] be heard simultaneously with
Pan Ocean's application in Encl. (29). The prayers are:
that leave to enter conditional appearance and the Pan Ocean's memorandum of conditional appearance dated December 4, 2001 be set aside;
that Pan Ocean cease to be a party or be considered as a party in this proceedings by reason that the appearance entered by Pan Ocean in these proceedings is wrong in law or does not comply with the Rules of the High Court 1980 and/or the appearance entered by Pan Ocean is irregular without a court order of this honourable court.
PAN OCEAN'S SUMMONS IN CHAMBERS - Encl. (21)
On December 10, 2001 Pan Ocean also took out an application seeking the following orders:
that leave be given to Pan Ocean to file a bail bond in the form of appendix I annexed to the application without submitting to the jurisdiction of the honourable court;
that the vessel "Able Lieutenant" be released from arrest, upon filing of the bail bond in the form of appendix I without any undertaking by Pan Ocean Sdn Bhd as to costs, charges or expenses relating to the arrest;
that service of the notice of bail be dispensed;
such further or other order that this honourable court deems fit;
that the cost of this application be costs in the cause.
The learned counsel for Pan Ocean at the outset of the hearing informed this court that Pan Ocean would be seeking for the orders as prayed for in Encl. (21) only in the event that the court dismisses Pan Ocean's application for the orders sought under its notice of motion as in Encl. (29).
FINDINGS & DECISIONS OF COURT
Having studied the affidavits filed on behalf of the plaintiff, the defendant [Able Shipping] and Pan Ocean and having heard the submission of learned counsel for the plaintiff, Able Shipping and Pan Ocean respectively I have arrived at a decision for the applications in Encl. (21), Encl. (29), Encl. (31) and Encl. (39) for prayers (1) and (2) as follows.
The plaintiff has raised a preliminary objection on Pan Ocean's notice of motion as in Encl. (29). As regards the plaintiff's preliminary objection to Pan Ocean's notice of motion in Encl. (29) I hereby allowed the said preliminary objection. It is my finding that as Pan Ocean is not the defendant to the action, it lacks the capacity to apply to the court to set aside the writ. This right is restricted to the defendant only. The real defendant, Able Shipping has entered appearance as well, as of right, as the defendant in this action and this has caused embarrassment and vexed the proceedings. The claim disclosed on the writ is not against Pan Ocean. What Pan Ocean claims is simply a beneficial interest in the ship. Therefore it is merely a person interested in the ship and not a defendant on the claim. On this issue the court in The Bolbina [1994] 1 SLR 554 inter alia had this to say:
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Persons against whom no claim is made ought not to be described as or included as defendants. A defendant enters an appearance as of right whereas persons interested in the ship must obtain leave to intervene and after obtaining leave appear as intervenors. |
The above passage was approved by our Court of Appeal in Pemunya Kapal MV Brihope v Emmanuel E Okwuosa [1996] 3 AMR 3917; [1997] 1 MLJ 453 wherein the Court of Appeal inter alia stated as follows:
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The ship owners (those legally liable for the plaintiff's claim) would enter appearance as of right. Persons interested must obtain leave of court to intervene and after obtaining leave would appear as interveners. |
It must also be noted that Ord. 70 r 16 of the Rules of High Court 1980 ["RHC 1980"] provides a specific rule for persons interested in the ship to intervene in an admiralty action and not to come in as a defendant as of right. Pan Ocean appears to have deliberately ignored this provision: to take an advantage because as intervenor they may not be entitled to seek an order from this court to set aside the writ. In The Mawan Now Named Mara [1998] Vol 2 Lloyd's Law Report 459, the court decided that the correct procedure for owners of an arrested vessel who became owners and acquired title after the issue of the writ is to intervene in the action. Pan Ocean, claiming beneficial ownership, should therefore have intervened pursuant to Ord. 70 r 16 of the RHC 1980 but did not do so. As such that they cannot be considered to be a party in this action.
Further convincing support comes from the case of The Yih Shen [1985] 2 MLJ 154 where a party alleging beneficial ownership had intervened in the action so as to be a proper litigant in the action. Pan Ocean also argues that the writ does not identify the defendant and that anyone claiming to be defendant can enter appearance as of right. I could not agree with Pan Ocean's contention. I am of the view that in an admiralty action in rem, it is the practice not to identify a defendant by name on the face of the writ but to identify the defendant simply as owners of the ship or vessel against whom the claim is made. The writ in this action follows this practice [see Form 155 of the RHC 1980]. The identity of the defendant in this case nevertheless has been clearly disclosed by reference to the indorsement on the writ which identifies charterparty with the defendant Able Shipping. It is also not disputed that Able Shipping is the registered owner of the ship "Able Lieutenant" and that they would be liable on the plaintiff's claim.
The test to determine whether a person can be a proper defendant is to consider if that person would be liable for the plaintiff's claim should the plaintiff succeed in the action. Not anyone can jump in as defendant. On this ground alone, Pan Ocean has no basis to be a defendant. Learned counsel for Pan Ocean argues that owners include beneficial owners. To my mind this is plainly wrong because Pan Ocean is not liable on the claim. Pan Ocean has relied on a few authorities where alleged beneficial owners have appeared as of right. However, in all the cited cases by Pan Ocean I find there is only one defendant. That alone distinguished those cases from the present situation. In The Temasek Eagle [1999] 4 SLR 250 and in The Andres Bonifacio [1993] 3 SLR 521 cited by counsel for Pan Ocean, appearance was entered for the owners of the vessel such that if they failed to set aside the writ the defendants would be liable for the claim. It is also noted that in The Andres Bonifacio, the beneficial owners furnished bail bonds for the plaintiff's claims, so that if they did not succeed to set aside the writ these bail bonds could be used to satisfy a judgment of the court. In the present case, appearance has been entered in a special way, with no precedent in the history of admiralty actions — Able Shipping "as registered owners" and Pan Ocean "as beneficial owners". It is also noted that Pan Ocean has refused to furnish bail bond which will not answer to plaintiff's claim. In The Tian Sheng No 8 [2000] Vol 2 Lloyd's Law Reports 430[1] the defendant who entered appearance was the registered owner of the vessel, not beneficial owner as alleged by Pan Ocean. The case has therefore been wrongly cited.
I am of the view that if Pan Ocean is right in its contention then in each admiralty case, there will always be several defendants — legal owner, beneficial owner, part owner etc. Obviously this cannot be right because Pan Ocean cannot and has not produced a single authority where there are two defendants or a case where one defendant appears as "registered owner" and the other as "beneficial owner" in the same action. On the other hand I find that learned counsel for the plaintiff have cited a clear authority in the Malaysian case of The Yih Shen (supra) where both the registered owner and the alleged beneficial owner appeared in a different capacity. Owners liable on the claim were the defendants and the party claiming beneficial ownership appeared as interveners. Faced with this unarguable position, learned counsel for Pan Ocean says the objection is technical. She argued if Pan Ocean had intervened, this court would have made it a defendant. I do not see the logic of this argument as an intervener and a defendant are two different persons. A defendant would be liable on the claim but an intervener is not. It is my view that Pan Ocean's appearance as a defendant, when the real defendant has appeared, is not a mere irregularity but a nullity because it affects the substantive rights of the plaintiff and is prejudicial to the plaintiff. Further it is confusing to the court due to uncertainty of the proper defendant. Based on the above mentioned grounds it is my finding that because its status.
in this action is invalid, Pan Ocean does not have the right to apply to set aside the writ and to seek other orders as in its notice of motion. I hereby dismiss with costs Pan Ocean's application in Encl. (29). For the same reasons I hereby allow the plaintiff's application in Encl. (39) and grant the orders sought as in prayers 1 and 2.
Even assuming Pan Ocean is entitled to enter appearance as of right as a defendant in this case by virtue of its contention that it is the beneficial owner of the ship "Able Lieutenant", I am still of the view that the real issue to be determined by the court is whether the admiralty in rem action was properly taken out by the plaintiff against the owners of the ship in accordance with the provision of s 21(4) of the United Kingdom Supreme Court Act 1981 ["UK Act"].
BACKGROUND
TO THE 1952 ARREST CONVENTION & THE UK ACT
Before dealing with the above issue it is important to bear in mind the underlying
rationale of the 1952 Arrest Convention and the UK Act that gave effect to it.
1952 Arrest Convention
Shipping is the most international of all the world's great industries and
not surprisingly a large number of international conventions govern the maritime
industry. One of them is the International Convention for the Unification of
Certain Rules Relating to the Arrest of Seagoing Ships 1952, in short, the Arrest
Convention which sets out the law for the arrest of a sea going ship. More than
70 states are parties to the Arrest Convention and many other states (including
Malaysia) have given effect to the convention even though they are not a party
[see the International Convention for the Unification of Certain Rules Relating
to the Arrest of Sea-Going Ships 1952].
United
Kingdom Supreme Court Act 1981
The United Kingdom is a party to the Arrest Convention. At first United Kingdom
enacted the Administration of Justice Act 1936 ("AJA") and the AJA
only implemented the Arrest Convention partially. Commonwealth countries like
Malaysia and Singapore followed the United Kingdom and gave effect to AJA in
their domestic legislation. Then in 1981 United Kingdom enacted the UK Act to
give full effect to the Arrest Convention, the relevant sections being ss 20-24
of the UK Act in respect of the admiralty jurisdiction of the court. Malaysia
followed suit by the Courts of Judicature (Amendment) (No 2) Act 1984 (Act 606)
and subsequently vide Courts of Judicature (Amendment) Act 1987 (Act
670) but Singapore did not do so. In the premise, there are glaring differences
in respect of the respective municipal laws relating to admiralty jurisdiction
in Malaysia and Singapore. Section 20(1) of the
UK Act sets out the extent of the admiralty jurisdiction
of the court. Section 20(2) identifies a 'closed' list of maritime claims within
the court's admiralty jurisdiction and s 21 provides for the mode of exercise
of this admiralty jurisdiction that gives the power of arrest. These are the
two sections which are relevant in the present context of this case.
Application of the UK Act in Malaysia
As stated above, Malaysia enacted an amendment to the Courts of Judicature Act 1964 to give force of law to the admiralty jurisdiction provisions of the UK Act as provided under s 24(b) of the Courts of Judicature Act 1964 which states as follows:
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Without prejudice to the generality of section 23 the civil jurisdiction of the High Court shall include—
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Interaction between the 1952 Arrest Convention & the UK Act
Before leaving the discussion on the background, it is worth noting that in England the courts are ready to use 1952 Arrest Convention to interpret the UK Act. There is a long line of shipping cases where the English courts have considered the provisions of the 1952 Arrest Convention in order to construe the wording of the statutes as can be seen in the following cases:
The Eschersheim [1976] 2 Lloyd's Law Reports 1;
The Banco [1971] 1 Lloyd's Law Report 49;
The Kommunar (No 2) [1997] 1 Lloyd's Law Report 8;
The Evpo Agnic [1988] 2 Lloyd's Law Report 411;
The I Congresso Del Partido [1977] 1 Lloyd's Law Report 536
In the book, Dicey & Morris on the Conflict of Laws [2000] 13th edn at p 456, the authors had this to say:
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The Supreme Court Act 1981 was enacted to implement the Brussels Convention of 1952 on the Arrest of Seagoing Ships. In interpreting the Act recourse may be had not only to the Brussels Arrest Convention itself but also to its "travaux preparatoires", the proceedings of the conference which led to it. |
PURPOSE & EFFECT OF S 21(4) OF THE UK ACT
On that background I shall now proceed to consider s 21(4) of the UK Act which reads as follows:
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In the case of any such claim as is mentioned in section 20(2)(e) to (r), where —
an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against—
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What Pan Ocean has alleged is that at the time this action was brought, it was the beneficial owner of all the shares in the ship "Able Lieutenant" and not the defendant. Pan Ocean contends that since the defendant [Able Shipping] was not the beneficial owner of the said ship when this action was brought, the plaintiff has no right to arrest the ship "Able Lieutenant" because this is in violation of the provisions of s 21(4)(b)(i) of the UK Act. The defendant [Able Shipping] who has entered appearance as a defendant is also taking the same approach as Pan Ocean for its application in Encl. (31). On this point of contention by both Pan Ocean and the defendant, with respect I could not agree with such a contention.
I am of the view the issue to be determined in this case is not on the meaning to be given to the term or words "beneficial ownership" in the context of the provision of s 21(4)(b)(i) of the said UK Act, but on the question as to when or under what circumstances the plaintiff has to prove beneficial ownership to enable it to properly institute an admiralty in rem action against owners of ship as a defendant.
I am of the view that the law places the burden on the plaintiff to prove beneficial ownership of a registered ship only in those cases when the defendant is not the registered owner at the time when the action is brought and the vessel arrested. In all other cases, the said UK Act enacted to give effect to the Arrest Convention follows the ship register. Considering there is no public register for beneficial ownership of ships, if the view of the law by Pan Ocean and the defendant is to hold then all maritime nations might as well close down their shipping registries. The provisions for registration in our Merchant Shipping Ordinance 1952 would then appear to have no regulatory purpose. Also the Arrest Convention which is only concerned with legal ownership would have no effect. For these reasons it is my view the law cannot be as stated by Pan Ocean and the defendant.
The question that may be posed is why is the word "beneficial" used in the UK Act? I take the view that in using the word "beneficial" the legislature had only one objective to catch the owner operating a registered ship under a nominee to avoid arrest. This view is confirmed by his Lordship Justice Robert Goff in The I Congreso Del Partido [1977] Vol 1 Lloyd's Law Reports 536 wherein at p 563 his Lordship had this to say:
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As I read s 3(4), the intention of Parliament in adding the word "beneficially" before the word "owned" in s 3(4) was simply to take account of the institution of trust, thus ensuring that, if a ship was to be operated under a cloak of trust, those interested in the ship would not thereby be able to avoid the arrest of the ship. |
[Note: Section 3(4) here is the provision under the repealed Administration of Justice Act 1956].
In view of the abovementioned proposition English courts (and Malaysian courts) would apply the beneficial ownership provision in the UK Act in such a manner to achieve the particular objective as stated by his lordship Justice Robert Goff. Therefore s 21(4)(b)(i) must be interpreted and applied in the context of the purpose of s 21(4) of the UK Act. When properly construed under the purpose of s 21(4) of the UK Act, it will be seen that the courts give effect to the word "beneficial" only in specific cases.
In The Evpo Agnic (supra) the English Court of Appeal at p 415 had this to say inter alia on the purpose of s 21(4) of the UK Act:
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The purpose of s 21 (4) is to give rights of arrest in respect of "the particular ship", ships in the ownership of the owners of "the particular ship" and those who have been spirited into different legal, i.e. registered, ownership, the owners of "the particular ship" retaining beneficial ownership of the shares in that ship. This was the situation in The Saudi Prince [1982] 2 Lloyd's Law Report 255 and was alleged to be the situation in The Aventicum [1978] 1 Lloyd's Law Report 184. |
Based on the abovementioned case [The Evpo Agnic] it can be said that there are three rights of ship arrest provided for by s 21 (4) of the UK Act.
First, it is the arrest of the particular ship (category 1),
Secondly, arrest 'of the sister ship' (category 2) and
Thirdly arrest of a particular ship spirited away into a different legal ownership (category 3).
In the case of categories 1 and 2, it is my view that the burden of proof is on the plaintiff to show that the defendant is the registered owner of the vessel when the writ is issued. This follows the Arrest Convention where only legal ownership matters. Article 3(1) and (2) of the Arrest Convention reproduced below states as follows:
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Article 3.1 Subject to the provisions of s 4 of this Article and of Article 10, a claimant may arrest either the particular ship in respect of which the maritime claim arose, or any other ship which is owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship, even though the ship arrested be ready to sail; but no ship, other than the particular ship in respect of which the claim arose, may be arrested in respect of any of the maritime claims enumerated in Article 1(1)(o), (p) or (q). Article 3.2 Ships shall be deemed to be in the same ownership when all the shares therein are owned by the same person or persons. [emphasis added] |
The issue of beneficial ownership does not arise in categories 1 and 2 because the registered owner of a ship registered in a recognized port registry under the laws of a maritime nation is also its beneficial owner. The English Court of Appeal case of The Evpo Agnic and The Tian Sheng No 8 (supra) can be cited as authorities for such a proposition. The Tian Sheng No 8 is a decision of the highest appellate court in Hong Kong, equal to our Federal Court. Even the Singapore High Court in the case of The Kapitan Tempkin [1998] 3 SLR 254, said (at p 237):
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.... the certificate of registration is important documentary evidence in deciding who the beneficial owners of a ship for purposes of jurisdiction are .... |
Learned counsels for Pan Ocean and the defendant in their reply have not countered these cases.
The third right of arrest [category 3] under s 21(4) of the UK Act as stated in The Evpo Agnic is the right to arrest ships spirited away into different registered ownership. It is in this situation the plaintiff has the burden of proof to establish beneficial ownership. This is obvious as it is pointless relying on the register because the register would show the new owners who are strangers to the plaintiff and who would not be liable on the claim. So in this situation if a plaintiff brings action against the ship, he must be in a position to prove that the ship though registered in a stranger's name is beneficially owned by the person who would be liable to him. This is illustrated by the two cases referred to by Lord Donaldson MR. in his judgment in The Evpo Agnic case namely, The Saudi Prince (supra) and The Aventicum (supra). In The Saudi Prince the plaintiffs arrested the vessel "Saudi Prince" for a cargo claim. When the cause of action arose the ship was owned by one Mr. Orri. But before the writ was issued, the ship was transferred to another company SSST, where Mr. Orri and his children owned all the shares. The new registered owners SSST argued they were the new legal and beneficial owners and not liable on the plaintiffs' claim. The plaintiffs therefore had to prove that, despite the change in the register, Mr. Orri retained the full beneficial interest in the ship and therefore the ship could be arrested for the claim. The court found that on the evidence SSST was a nominee of Mr. Orri and that beneficial ownership of the ship remained with him. In The Aventicum where a similar situation arose, the plaintiffs arrested the vessel for a cargo claim. Between the time when the cause of action arose and when the writ was issued, the ship "Aventicum" had undergone 2 changes of legal ownership. Both sets of new owners were strangers to the plaintiffs and not liable on the claim. The plaintiffs argued that while it was true there had been changes in the legal ownership, the defendants, they said remained the beneficial owner despite the 2 changes in the register. The plaintiffs could not succeed because they could not prove this.
Both The Saudi Prince and The Aventicum show the defendants, the persons who would be liable to the plaintiffs, were not the registered owners of the ships when arrested. In each case the plaintiffs argued, despite the change of registered owner, beneficial ownership was retained by the previous owners liable to the plaintiffs. Both cases illustrate the principle that the plaintiffs bear the burden of proving beneficial ownership only when they want to proceed against a ship not in the registered ownership of the defendant who would be liable to them on the claim. This is the only situation where the court would ignore the owner's name listed on the ship's register and look behind the register to catch the real shipowner hiding behind the nominee. In all other cases, the registered ownership of the ship as in the ship's register is paramount.
THE TJASKEMOLEN
The case of The Tjaskemolen [1997] 2 Lloyd's Law Report 465 is a direct authority on the application of the beneficial ownership provision in s 21(4)(b)(i) of the UK Act. Learned counsel for Pan Ocean has also submitted this case in support of its contention. An analysis of this case in my view with respect to Pan Ocean's contention does not so support its contention at all. In The Tjaskemolen the plaintiffs claim was for damages for breach of charterparty concluded between plaintiffs as charterers and one Bayland, the owners of the "Tjaskemolen". When the writ was issued, the ship had already been sold to one Golden Navigation. Golden Navigation purchased the ship, registered it in the Port of Belize and renamed it "Visliet". It was in these circumstances, the court said the plaintiffs must prove that Bayland were the beneficial owners of the ship when the action was brought because it was in a different registered ownership. On this point his Lordship Justice Clarke explains in The Tjaskemolen at p 468 inter alia as follows:
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Bayland were both the persons who would be liable on the claim in action in personam and the owners (that is the legal owners) of the vessel when the cause of action arose. That is common ground. It is equally common ground that, in order to satisfy the provisions of s 21(4)(b)(i) of the Supreme Court Act 1981, the plaintiffs must prove that when the writ was issued, Bayland were the beneficial owners of the vessel. |
The plaintiffs had to prove Bayland were the beneficial owners and to do this they had to show the legal transfer to Golden Navigation was a sham or a facade. On this point his Lordship Justice Clarke in The Tjaskemolen at p 471 had this to say:
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But in the present context the cases seem to show that, where the alleged transfer is a sham or a facade, it will not have the effect of transferring the beneficial ownership of the transferor in the vessel concerned .... It may be that, if legal title is transferred, the transferee would hold the vessel as trustee for the transferor so that the beneficial interest in the same sense described in The Congreso del Partido [1977] 1 Lloyd's Report 536 is retained by the transferor. |
It is clear from the above passage the court investigates beneficial ownership only where the defendants are not the registered owners in line with his Lordship Justice Goffs comments in The I Congreso del Partido and as adopted in The Evpo Agnic. The court in The Tjaskemolen on the facts found that the transfer was a sham. His Lordship Justice Clarke's conclusion on the application of the term "beneficial" is in full agreement with the ratio as expressed in The Evpo Agnic wherein at p 474 of the said case his Lordship inter alia stated as follows:
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In short, this an example of a case in which, in the words of Sir John Donaldson MR. in The Evpo Agnic, the vessel has been spirited into different ownership. [emphasis added] |
It is my finding that The Tjaskemolen fully supports the plaintiff's proposition of the law and not that as contended by Pan Ocean and the defendant. Pan Ocean and the defendant relied also on the following English and Malaysian cases to show the court places the burden of proof on the plaintiff to investigate beneficial ownership in each and every case:
The Aventicum (supra)
The Loon Choong [1982] 1 MLJ 212
The Hope (Panagia) (unreported)
The Tian Sheng No 8 (supra)
On this point of contention by Pan Ocean and the defendant, I only need to say that the plaintiffs in The Aventicum were obligated to prove beneficial ownership because the ship was not in the registered ownership of the person who would be liable on the claim when writ was issued.
In The Loon Chong [1982] 1 MLJ 212, a decision of our Federal Court, the plaintiffs (respondents) arrested the ship "Loon Chong" for a claim against one Lord Steamship CSA (Panama). But when the writ was issued, the legal ownership had been transferred to one Melbourne Plaza Navigation SA (Panama). So the only way the plaintiff could invoke the admiralty jurisdiction was by proving that Lord Steamship was the beneficial owners even though the registered owner was Melbourne Plaza. Though decided on the law before the coming into force of the 1981 UK Act, it is a classic case of a ship falling into the third category of arrest spiriting the ship into a different registered ownership. The Federal Court in The Loon Chong followed The Aventicum, the case referred to in The Evpo Agnic wherein the Federal Court had this to say:
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It would however be open to the respondents to contend to the contrary on the premise that the documents and transaction entered into were fictitious and the ownership was in fact in Lord at the time of the issue of the writ and the arrest but the burden of proof in this regard would be on the respondents (The Aventicum). |
The defendant [Able Shipping] also relied on The Hope (Panagia) (unreported), another Malaysian case decided in 1997 under the Supreme Court Act 1981. In that case there was a change of registered ownership and once again the burden was placed on the plaintiffs to prove beneficial ownership only because the defendant was not the registered owner of the ship when the action was brought.
WHETHER SHIP REGISTER IS CONCLUSIVE AS TO OWNERSHIP OF REGISTERED VESSEL?
Pan Ocean and the defendant argued that the ship register is not conclusive. I would take the view that the ship register is conclusive except for errors or fraud. Two authorities clearly established this point. In The Tian Sheng No 8 (supra) the Hong Kong Court of Final Appeal had stated as follows:
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Conceivably, there are circumstances where it might be shown that the registered owner was in fact not the legal and beneficial owner of all the shares in the ship: The fraudulent procurement of registration would be an example. But, in the general run of things, registration would be virtually conclusive and it would take an exceptional case for it to be otherwise. |
In The Kapitan Temkin (supra) at p 257 the court inter alia also made the position clear as follows:
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The certificate of registration, adds Chorley & Giles Shipping Law at p 36, 'fulfils to a certain extent the function of title deed'. In this sense the certificate of registration is similar to a certificate of title issued under the Torrens system of land registration which was replicated from the paradigm of the ship registration system. The title evidenced by the certificate of registration is similarly indefeasible, subject of course to rectification in cases like error or fraud. See The Bineta [1966] 2 Lloyd's Report 419. |
The onus of proof is therefore on Pan Ocean and the defendant to show that Able Shipping's name on the register appears by error or fraud. Since they have not done this it must be taken that the register is conclusive. Under English law, in the case of a registered ship, once the plaintiff establishes that the defendant is the registered owner of the ship when the writ is issued, the burden of proof shifts to the person contending otherwise. A reference to the book by Chorley & Giles, Shipping Law, 8th edn supports the above proposition wherein at p 35 the authors had this to say:
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registration is also important as proof of title. It is not conclusive but furnishes at least prima facie evidence of the registered owner being the true owner, thus resulting in a shifting of the burden of proof. Whoever without being registered claims ownership must displace that prima facie evidence. |
This prima facie evidence rule does not apply in Singapore, so their decisions have to be read with caution. This was confirmed in The Opal 3 [1992] 2 SLR 585 where the court there after referring to the above quoted passage in Chorley & Giles, Shipping Law said (at p 589):
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the principle of prima facie evidence stated in Chorley & Giles is supported by The Rose and The Bineta but they must be read with reference to British law. |
The burden of proof therefore has shifted to Pan Ocean and the defendant to dispel the case established by the plaintiff.
DISTINGUISHING "THE ANDRES BONIFACIO" & "THE TEMASEK EAGLE"
The Andres Bonifacio (supra), which was followed in The Temasek Eagle (supra), are two Singapore cases which were decided differently and are said to be in support of both Pan Ocean's and the defendant's contention. It is my view that the two cases are peculiar to Singapore and can be distinguished for the following reasons:
Singapore does not follow the case of The Evpo Agnic though it recognizes the dictum there as the ratio decidendi of the case. In particular, Singapore courts do not accept that the word "owner" in s 21(4)(b) means "registered owner" as was decided in The Evpo Agnic which decision was consistently approved and applied in a number of English Court of Appeal decisions and recently approved in The Tian Sheng No 8. In The Ohm Mariana [1993] 2 SLR 698 the Singapore Court of Appeal, on the meaning of the word "owner", had this to say (at p 707):
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In our opinion The Evpo Agnic is not an authority for the proposition that the word "owner" in s 21(4)(b) (which is equivalent to s 4(4) of our Act) means the "registered" owner. |
Singapore will not look at the Arrest Convention to interpret their law on arrest. His Honour Wee Chong Jin, CJ in The Permina 108 [1977] 1 MLJ 49 said as follows (at p 50):
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In our opinion the terms of s 4(4) of the Act, giving them their plain and ordinary meaning are free of any ambiguity and are not reasonably capable of more than one meaning. It follows that it is unnecessary and indeed it would be wrong to look at the International Convention Relating to the Arrest of Seagoing Ships signed at Brussels in 1952 to arrive at the proper construction of our subsection. |
Singapore does not apply the full provisions of the Supreme Court Act 1981 as Hong Kong and Malaysia do but follows the earlier UK Administration of Justice Act 1956 repealed in the UK and Malaysia.
The Andres Bonifacio and The Temasek Eagle have not been followed in any of the English cases on beneficial ownership. Learned counsel for Pan Ocean submitted that The Andres Bonifacio decided in 1993 "settled the law", yet no jurisdiction outside Singapore has applied it in the context of s 21 (4)(b)(i) of the UK Act. The net result is neither counsel for Pan Ocean nor counsel for the defendant have cited a single authority decided under the specific provision of s 21(4)(b)(i) of the UK Act in any jurisdiction which decides plaintiff has to prove beneficial ownership when the defendant is the registered owner of the arrested vessel. All English and Malaysian cases are completely against them including The Tjaskemolen (supra) which appears to be the only direct case on the application of s 21(4)(b)(i) of the UK Act decided on the principle laid down in The Evpo Agnic.
It is my view that under s 24(b) of our Courts of Judicature Act 1964 this court has to apply the UK Act in the same manner as an English High Court would, and therefore, decided English cases should be followed over Singapore decisions which are in conflict and which do not apply the UK Act. In the circumstance of this case it is my finding that the plaintiff has discharged the onus of proof and has properly brought this action under the admiralty jurisdiction of this court pursuant to the UK Act.
Further, on the plaintiff's alternative argument against Pan Ocean's application in encl. (29) and the defendant's application in encl. (31), I am of the view if it is necessary for the plaintiff to prove at the time the admiralty in rem action was taken the beneficial owner of the ship "Able Lieutenant" was not the defendant but Pan Ocean then the plaintiff is not precluded from proving that the transfer of beneficial ownership of the ship from the defendant to Pan Ocean is a sham transaction. Learned counsels for both Pan Ocean and the defendant have argued that "sham" means fraud and therefore contended that the plaintiff must prove sham beyond reasonable doubt. On this point I find that the plaintiff has contended sham throughout. Nowhere in the plaintiff's affidavits or submission of counsel have plaintiff alleged fraud. I take the view that Pan Ocean's and the defendant's attempt to equate sham with fraud is a baseless attempt to raise the standard of proof. Sham transaction in the context of the present case means not a genuine sale and not an arm's length transaction but a commercial arrangement. It may even be called a sale of convenience. In all cases involving sham transaction such as The Tjaskemolen, The Saudi Prince, The Aventicum and the Malaysian case of The Loon Chong, sham was proved on a balance of probabilities. In another Malaysian case, The Sino Glory [1997] 4 AMR 3694 sham was also proved on a balance of probabilities.
In raising the issue of sham transaction the plaintiff questioned whether any person with a commercial interest would purchase a vessel valued at USD3 million with outstanding mortgage of USD 10 million? I am of the view that a person would do so only if it is a sham arrangement or a sale of convenience. I also find that for the defendant [Able Shipping] to sell their asset for USD3 million and retain a mortgage debt USD9.5 million on the same asset (which given the dire financial situation they can never settle) smacks of a sham. Learned counsel for defendant argues that the presence of mortgages does not prevent a sale of the vessel. It was contended for the defendant the fact that an asset is encumbered by an unpaid mortgage is also of no hindrance to a potential buyer as then the potential buyer would ensure that the mortgage be discharged from the purchase price. I am in full agreement with such a statement but Pan Ocean appears to have only made arrangements to discharge one mortgage debt of USD0.5 million. The other mortgage debt of USD9.3 million also remains undischarged till to date and this has to be discharged by the defendant who is in a state of insolvency. Therefore it is highly unlikely that a normal transfer of an asset could have taken place in such a situation unless the alleged sale is a sham arrangement.
Pan Ocean also argues they bought the vessel subject to bank's interests. But there is no independent confirmation from the mortgagee banks. The only evidence are affidavits filed in another court case showing the mortgagees are aware of the sale. These affidavits cannot be given due weight as evidence in this action. Even so, the mortgagee banks state unequivocally that they want to sell the vessel to recover their mortgage debt. Pan Ocean has informed the banks it is prepared to buy the vessel and discharge the mortgage debt and the banks are naturally gratified if a buyer is willing to discharge USD10 million mortgage in addition to paying the value of the ship at USD3 million. To my mind, it is like a dream come true for the mortgagee banks caught out lending more than 3 times the value of the asset. This dream remains unrealised. It must be noted that if the sale was subject to mortgagees' interests, then there would be a transfer of mortgage. In the mortgage form, registered at the Port Klang ship registry there is no transfer of mortgage. Letters from the bank's solicitors also show ownership of the ship remains in the defendant. If the alleged sale to Pan Ocean was done with the express consent of the mortgagee, their solicitors would have stated so in their letter.
Pan Ocean and the defendant also contended that the sale of the said ship "Able Lieutenant" took place before the plaintiff filed its claim. It was argued that the plaintiff's claim did not exist when the bill of sale was executed, so it cannot be a sham. I am of the view that the date of the bill of sale does not matter because it can be secretly executed for future claims. On this point I would like to refer to The Tjaskemolen (supra) wherein at p 471 his Lordship Justice Clarke had this to say:
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That case is an example of piercing the corporate veil where assets are deliberately transferred from A to Bin the knowledge that to do so will defeat a creditor's claim or potential claim even if that is not proved to be the purpose of doing so. |
It is also noted that it was a condition in the memorandum of agreement in Clause 30 between Pan Ocean and defendant [Able Shipping] that the sale of "Able Lieutenant" must be kept secret and confidential even if the sale was not completed [see exh "SS1" in encl. (30)]. Learned counsel for defendant also argues that the bill of sale has divested the title from the defendants and vested in Pan Ocean. However a reference to a letter from the mortgagee bank solicitors dated January 3, 2002 [see exh 9d in encl. (48)] showed otherwise wherein inter alia it states as follows:
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we are to state here that payment from Able Shipping Sdn Bhd is still due and owing to our client to this point in time. The above is the only vessel secured to our client. |
I would hasten to add that if title had been divested, the bank would be pursuing Pan Ocean instead of the defendants. It must be noted that under the Merchant Shipping Ordinance 1952 ["MSO"] a bill of sale must be recorded in the ship registry to pass title. The title to the ship therefore cannot pass to the purchaser unless the bill of sale is recorded in the registry in the buyer's name [see The Wilbie [1983] 1 MLJ 204]. The bill of sale in this case [see exh "SS2" in Encl.(30)] also contains a similar note which states inter alia as follows:
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A purchaser of registered Malaysian vessel does not obtain a complete title until the bill of sale is recorded at the port of registry of the ship; neglect of this precaution may entail serious consequences. |
Learned counsels for Pan Ocean and the defendant contended that property in the ship passed without the need for any registration under the MSO. I could not agree with such a contention and only need to cite The Naamlooze Vennootschap [1925] 20 Lloyd's Law Report 296 wherein at p 300 the English Court of Appeal had this to say:
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Now the law relating to the transfer of ships is one of peculiar nature. All the incidents that relate to the sale of chattels clearly do not relate to the sale of ships because the transactions are governed to a large extent by the provisions of different Merchant Shipping Acts. It was said by Turner LJ in the case of Hooper v Gumm 2 Ch App 282 in which he had to deal with an American ship at p 290) that A ship is not like an ordinary personal chattel; it does not pass by delivery; nor does the possession of it prove the title to it. There is no market overt for ships. Whether the proposition may not be subject to certain limitations and restrictions it is quite unnecessary to decide now: but it is quite plain that a great deal of the law as to the passing of property in a ship depends upon the provisions of the Merchant Shipping Act. |
Therefore in the circumstances of this present case it is my finding whether the property in the said ship "Able Lieutenant" passed or not is a triable issue.
Learned counsel for Pan Ocean claims they have sent the ship documents for transfer at the ship registry in Port Klang and it has been lying there for the last 7 months. On this state of position Pan Ocean is in, I am of the view that the conclusion that can be drawn is that Pan Ocean is definitely not entitled to be registered as an owner of the ship "Able Lieutenant". Learned counsel for Pan Ocean also argues the plaintiffs charter party with the defendant expired on October 6, 2001. Therefore it was submitted that the plaintiff had no right to the claim. I could not agree with such a contention. The charter party was done on October 2, 2000 and has an automatic renewal clause every 3 months. The date October 6, 2001 is not the expiry date but the renewal for the next 3 months - the 4th renewal under the charter parry [see exh "NKP 1" in encl. (3)]. The charter party was executed between the plaintiffs and the defendant and the defendant fully accepted and agreed that the charter party was extended on October 6, 2001 for further 3 months.
Pan Ocean further alleged that the plaintiff had notice of Pan Ocean's beneficial ownership of "Able Lieutenant" before its arrest. It is noted that the plaintiff admitted receiving the said fax from defendant on November 5, 2001 stating simply:
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We have sold vessel, Able Lieutenant to Pan Ocean Sdn Bhd. Kindly deliver the said vessel to new owner immediately. |
This was the very first notification though the ship was allegedly sold on February 19, 2001, 10 months earlier and kept a secret. I am of the view that the said fax from the defendant did not notify "beneficial" ownership at all. Nor were details of the bill of sale or memorandum of agreement furnished. Until this action, the plaintiff had no knowledge of the bill of sale. Neither can Pan Ocean prove that the plaintiff had such knowledge. The said fax also appears suspicious as no telephone numbers, no fax number and no address of the sender are given which appears unusual for a commercial company. To find out the truth the plaintiff checked with the ship registry at Port Klang twice on November 24, 2001 and November 28, 2001 which confirmed the defendant was the registered owner. There was never any intimation of beneficial ownership. Pan Ocean argues the plaintiff had prior knowledge of beneficial ownership as early as October 6, 2001 and relies on exchange of email messages. Not one of the messages exhibited shows the fact of such notice to the plaintiff. In fact, the email message of November 5, 2001 from the plaintiffs to one, Capt Pani from Pan Ocean discloses that the plaintiff was not even sure Pan Ocean was the registered owner of "Able Pilot", another snip registered in the name of Pan Ocean 6 months earlier but not revealed to the plaintiffs by Pan Ocean. There is also a circular showing "Able Lieutenant" is owned by a controlling company named Malaysian Merchant Marine Bhd ["MMM"]. On October 24, 2001, 9 months after the alleged purchase of the ship by Pan Ocean, notices were sent out to the shipping community by MMM stating they were the owners of the ship. Pan Ocean's allegation that plaintiff was aware of their beneficial ownership is therefore devoid of merit.
Apart from the above mentioned disputed issues it is also my finding that the plaintiff has raised several other triable issues by pointing out serious conflict of material evidence and inconsistencies in the following subject matters:
validity of bill of sale
validity of memorandum of agreement
validity of supplemental agreement
whether Pan Ocean had actually paid the purchase price of the ship
whether Pan Ocean insured the ship, employed the crew and paid for all the expenses
the close connections between the defendant and Pan Ocean
how Pan Ocean/MMM controlled the defendant's activities through a company named Mymerine.
It is my finding that these issues can only be resolved at trial or by subjecting the deponents of the various affidavits to cross examination.
The defendant and Pan Ocean have argued that the issue of admiralty jurisdiction must be decided at this stage. Learned counsel for Pan Ocean urged that prayers 1 and 2 of its notice of motion in encl. (29) are for deciding jurisdiction. She said it is for the court's preference which prayer to use — to set aside or strike out. I find this submission is plainly wrong. While prayer 1 of application in encl. (29) is a challenge to jurisdiction under Ord. 12 r7 of the RHC 1980, prayer 2 invokes the court's jurisdiction to strike out the writ under the court's summary powers in Ord. 18 r19 of the RHC 1980. The same goes for prayers 2, 3 and 4 of defendants' application in encl. (31) which invoke the court's jurisdiction under Ord. 18 r19 of the RHC 1980. It appears that the defendant and Pan Ocean are blowing hot and cold wherein on one hand challenging the jurisdiction of the court and on the other hand seeking the court's jurisdiction to investigate the merits of the plaintiffs claim as disclosed on the writ. The defendant and Pan Ocean in their respective applications have failed to make an election as to whether to challenge jurisdiction or invoke the court's jurisdiction to hear the case on its merits [see the case of PP Persero v Bimacomm Property Development Sdn Bhd [1999] 3 AMR 3917; [1999] 6 MLJ 1. If a party wishes the court to set aside a writ or strike out the writ, it is incumbent upon that party to place before the court in dear unambiguous terms the expectation and not leave it to the court to make its preference, as suggested by Pan Ocean. The considerations for setting aside under Ord. 12 r7 of the RHC 1980 and striking out under Ord. 18 r 19 of the RHC 1980 are different. When it is not a plain and obvious case, where there is serious conflict of material evidence and when there are several complicating triable issues of fact and law, the court should set down the matter for trial.
In The Hope (Panagia) (unreported) the defendant applied to set aside or strike out the writ at the same time. In the face of conflicting affidavit evidence, his Lordship Ghazali J [as he then was] set down the issue of beneficial ownership for trial. In The Andres Bonifacio (supra) the Court of Appeal blamed the plaintiffs for their failure in not requesting for further discovery or an application to examine the deponent when there is conflict of material evidence. Here in the present case the plaintiff has filed an application to cross examine the deponent to the various affidavits in encl. (39) and the opportunity must be given to verify the truth of the facts.
In the circumstances of this case even if the court is to decide the case on the basis of the plaintiffs alternative argument that the alleged transfer of beneficial ownership from the defendant to Pan Ocean is a sham transaction, I would have also dismissed both Pan Ocean's application in encl. (29) and the defendant's application in encl. (31) with costs and set down the matter for trial.
Finally, I shall deal with Pan Ocean's application in prayer 2 of encl. (21) to furnish an amended bail bond for the release of the ship "Able Lieutenant" as contained in appendix 1 of the application. It must be stated here that after the hearing is well under way Pan Ocean has completely abandoned the amended bail bond of appendix 1 of encl. (21). Instead they have now put forward a fresh amended bail bond by way of an affidavit as in encl. (50). On this fresh amended bail bond I find that Pan Ocean has not sought an amendment to prayer 2 of encl. (21) to include this. It is my finding the court is not empowered to determine the fresh amended bail bond in encl. (50) because it is not part of encl. (21).
Learned counsel for Pan Ocean argues this fresh amended bail bond can be considered under prayer 4 of encl. (21 ): "such further or other order". It is my view that this prayer is an ancillary prayer and subject to the main prayer and cannot be used to launch an application different from what is prayed for in the application itself. On this ground alone I would dismiss prayer 2 of the application in enclosure (21) with costs since Pan Ocean have abandoned it.
Even assuming that it is proper and in order for Pan Ocean to have put forward a fresh amended bail bond by way of an affidavit in encl. (50) I would still dismiss the application for the following reasons:
A reference to paragraph 1 of the bail bond showed that the bond does not secure the claim in the action. In the usual case there is only one defendant and the reference to defendant in the bail bond causes no confusion on identity. However, there is a peculiar situation of two defendants in the present case wherein it is unclear and uncertain which defendant is being referred. Therefore the defendant Able Shipping Sdn Bhd must be named to avoid confusion with defendant, Pan Ocean. This is consistent with paragraph 2 of the bail bond which refers to the claim in this action because only the defendant, Able Shipping would be liable for the claim in this action.
A reference to paragraph 3 of the bail bond showed that it is prejudicial to the plaintiff because of the following:
The paragraph recognizes and acknowledges Pan Ocean as the beneficial owner of the vessel, which is the subject of challenge.
The paragraph recognizes and acknowledges Pan Ocean has the locus standi and right to apply to set aside/strike out the writ which is being challenged by the plaintiff. In The Bulgaria [1964] 2 Lloyd's Report 524 the application to amend the bail bond was made by the registered owners of the vessel defending the claim and their capacity to enter appearance was not subject of challenge.
The paragraph states "court's finding that the defendant is Pan Ocean". There is no such prayer for determination of this court. On admiralty jurisdiction, the issue is whether the defendant is the beneficial owner of the ship "Able Lieutenant".
In the case of The APJ Shalin [1991] 2 Lloyd's Law Reports 62 his Lordship, Justice Sheen on the issue of order for the release of a ship at p 67 had this to say:
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I cannot foresee any circumstances in which it would be right for the court to order the release of a ship without security being given against the wishes of a creditor who has properly exercised his right to arrest the ship. |
Based on the abovementioned case authority I would state that this court would release the vessel only when there is a sufficient and proper alternative security given for the plaintiff's claim in the action. In the circumstance of this case it is my finding that the proposed bail bond furnished by Pan Ocean under its so-called fresh amended bail bond as in encl. (50) is ineffective and invalid as it did not comply with the format of a bail bond provided under Ord. 70 r 12(6) of the RHC 1980. Pan Ocean's application in encl. (21) is therefore dismissed with costs.
Cases
"Andres Bonifacio, The" [1993] 3 SLR 521, CA; "Aventicum, The" [1978] 1 LLR 184; "APJ Shalin" [1991] 2 LLR 62; "Banco, The" [1971] 1 LLR 49; "Bolbina, The" [1994] 1 SLR 554, HC; "Bulgaria, The" [1964] 2 LLR 524; "Eschersheim, The" [1976] 2 LLR 1; "Evpo Agnic, The" [1988] 2 LLR 411, CA; "Hope (Panagia), The" (unreported), HC; "I Congresso Del Partido, The" [1977] 1 LLR 536; "Kapitan Tempkin, The" [1998] 3 SLR 254, HC; "Kommunar, The" (No 2) [1997] 1 LLR 8; "Loon Choong, The" [1982] 1 MLJ 212, FC; "Mawan" Now Named "Mara", The [1998] Vol 2 LLR 459; "Naamlooze Vennootschap" [1925] 20 LLR 296, CA; "Ohm Mariana, The" [1993] 2 SLR 698, CA; "Opal 3, The" [1992] 2 SLR 585; Pemunya Kapal MV Brihope v Emmanuel E Okwuosa [1996] 3 AMR 3917; [1997] 1 MLJ 453, CA; "Permina 108" [1977] 1 MLJ 49, CA; PP Persero v Bimacomm Property Development Sdn Bhd [1999] 3 AMR 3479; [1999] 6 MLJ 1, HC; "Saudi Prince, The" [1982] 2 LLR 255; "Sino Glory, The" [1997] 4 AMR 3694, HC; "Temasek Eagle, The" [1999] 4 SLR 250, HC; "Tian Sheng No 8" [2000] Vol 2 LLR 430, CFA; "Tjaskemolen, the" [1997] 2 LLR 465; "Wilbie, The" [1983] 1 MLJ 204; "Yih Shen, the" [1985] 2 MLJ 154
Legislations
Malaysia
Courts of Judicature (Amendment) (No 2) Act 1984
Courts of Judicature (Amendment) Act 1987
Courts of Judicature Act 1964: s.24(b)
Merchant Shipping Ordinance 1952
Rules of the High Court 1980: Ord.12 r 7, Ord.18 rr 19, 19(1)(b), (c), Ord.70 rr 12(6), 16, Form 155
United Kingdom
Administration of Justice Act 1956
Supreme Court Act 1981, ss 20, 20(1), (2), 21, 21(4), (4)(b)(i), 22, 23, 24
Authors and other references
1952 Arrest Convention
Chorley and Giles, Shipping Law, 8th edn
Dicey & Morris, Conflict of Laws [2000] 13th edn
International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships 1952
Representation
Mathew Kurien & Raj Sativale (Sativale Mathew Arun) for plaintiff
Eric Siow (Lee Ong & Kandiah) for defendant (Able Shipping)
S Selvaratnam & Kevin Wong (Tommy Thomas) and TS Oon (TS Oon & Partners) for defendant (Pan Ocean
Notes:-
[1] Reported in this site as The Resource 1 @ www.ipsofactoj.com/international/index.htm [2000] Part 5 Case 2 [CFA]
This decision is also reported at [2003] 1 AMR 72
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