The "Seaway" CofA

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DMC/SandT/05/01
THE "SEAWAY"
Singapore Court of Appeal: Chao Hick Tin JA, Tan Lee Meng J: [2004] SGCA 57:
29 November 2004
Rajah & Tann for Shell Eastern Petroleum
Gurbani & Co for owners of the "Seaway"
ADMIRALTY: VESSEL DAMAGED PRIVATE WHARF: WHETHER RIGHT TO LIMIT LIABILITY: WHETHER PRIVATE WHARF IS "PROPERTY" WITHIN SECTION 136(1)(d) OF SINGAPORE MERCHANT SHIPPING ACT: WHETHER RIGHTS INFRINGED THROUGH ACT OR OMISSION OF ANY PERSON IN THE NAVIGATION OR MANAGEMENT OF THE VESSEL 
Summary
The "Seaway" collided with and damaged a wharf in Singapore belonging to Shell Eastern Petroleum. Shell sued for negligence. The owners of the "Seaway" argued that they were entitled to tonnage limitation under section 136(1)(d) of the Merchant Shipping Act. Section 136(1)(d) would apply if (1) the wharf was "property" within the meaning of that sub-section; or (2) Shell’s rights were infringed through the act or omission of any person in the navigation or management of the "Seaway" as provided in the second limb of that section.

DMC Rating Category: Developed

This Case Note was contributed by Ang & Partners, the Website’s International Contributors for Singapore

Facts
Shell Eastern Petroleum Pte Ltd owned an oil terminal in Pulau Bukom where there were berthing facilities. The "Seaway" collided with and damaged one of the wharves. Shell sued for negligence. While denying liability, the owners of the "Seaway" asserted a right to limit their liability based on the vessel’s tonnage, as provided for in section 136 of the Merchant Shipping Act.

S.136 reads as follows:

"(1) The owner of a ship shall not, where all or any of the following occurrences take place without his actual fault or privity:…

(b) where any damage or loss is caused to any goods, merchandise or other things whatsoever on board the ship;…

(d) where any loss or damage is caused to any property (other than any property mentioned in paragraph (b)) or any right is infringed through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship, … or through any other act or omission of any person on board the ship,….

be liable to damages beyond the following amounts …."

The Court was asked to address a preliminary point of statutory interpretation, as to whether the claim fell within the ambit of s.136(1)(d) of the Act as a claim for (1) loss or damage caused to any property (other than goods, merchandise or other things on board the ship, which comes under (b)); or (2) infringement of Shell’s rights through the act or omission of any person in the navigation or management of the "Seaway".

This case was heard at three levels. At all three levels, the Court decided that the claim was one for which liability may be limited under section 136(1)(d) of the Act. At the first instance hearing, the Assistant Registrar held that private harbour works were "property" under the first limb of section 136(1)(d). On appeal to a judge-in-chambers, the judge held that "property" under section 136(1)(d) did not include private harbour works, but concluded that the claim was an infringement of right within the second limb. Finally, on further appeal to the Court of Appeal, the Court of Appeal decided in favour of the owners of the "Seaway" on both limbs, namely that private harbour works were "property" and there was also an infringement of right under that sub-section.

Judgment
1. The Court of Appeal held that, although there is no ambiguity in the word "property" in section 136(1)(d), the Court can still refer to extrinsic materials, e.g. the historical development of the section, to arrive at an interpretation which would promote the purpose or object of the statutory provisions. Reliance in this respect was placed upon the wording of s.9(A) of the Interpretation Act of Singapore.

2. The Court traced the legislative history of section 136(1)(d) and considered the history and text of the Convention Relating to the Limitation of Liability of Owners of Sea-Going Ships, 1957 (the "1957 Convention") on which that section was based. The Court concluded that "property" includes private harbour works. S.136(1)(d) excludes only statutory claims by the port authority for wreck removal and damage caused to a wharf, where the cause of the occurrence is not relevant and the liability is therefore not one for "damages", but for a statutory debt.

3. The Court of Appeal held in the alternative that when the wharf of a person is damaged by the operation of the vessel, the right of the owner is infringed under the second limb of section 136(1)(d).

Comments
The Singapore Court of Appeal decision is consistent with the reasoning in the English cases of The Putbus [1969] P 136 and The Berwyn [1977] 2 Lloyd’s Rep 99. The Court of Appeal did not follow the Australian case of The Tiruna [1987] 2 Lloyd’s Rep.666, on the ground that the provisions of the 1957 Limitation Convention had been incorporated into Australian law in a way different from that employed in the UK and Singapore.

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