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Sk Global Asia-pacific Pte Ltd. And Another v The Owners And/or Demise Charterers Of The Ship "Al Dhhabiyyah" And Other

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date28 June 1999
Year1999
Judgement NumberHCAJ3/1999
Subject MatterAdmiralty Action
CourtHigh Court (Hong Kong)
HCAJ000003/1999 XCHRX SK GLOBAL ASIA-PACIFIC PTE LTD. AND ANOTHER v. THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP "AL DHHABIYYAH" AND OTHER

HCAJ000003/1999

AJ Folio 3 of 1999

IN THE HIGH COURT OF THE HONG KONG SAR

COURT OF FIRST INSTANCE

ADMIRALTY JURISDICTION

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Admiralty Action in Rem against the Ship "AL DHABIYYAH" and other vessels referred to in Appendix 1 to the Writ
BETWEEN
SK GLOBAL ASIA-PACIFIC PTE LTD. (formerly SUNKYONG ASIA-PACIFIC PTE. LTD.) 1st Plaintiff
SSANGYONG OIL REFINERY CO. LTD. 2nd Plaintiff
AND
THE OWNERS AND/OR DEMISE CHARTERERS OF THE SHIP "AL DHHABIYYAH" & OTHER VESSELS REFERRED TO IN APPENDIX 1 TO THE WRIT Defendant

_________________________________

Coram: The Hon. Mr. Justice Waung in Chambers

Date of Hearing: 2 and 23 June 1999

Date of Delivery of Judgment in Court: 28 June 1999

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J U D G M E N T

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APPLICATIONS

1. There are before this Admiralty Court, an application by the Defendant requiring the Plaintiffs to file their Statement of Claim within 7 days and an application by the Plaintiffs for a temporary stay of proceedings pending the resolution of the jurisdiction dispute between the parties in Singapore.

HISTORY LEADING TO APPLICATIONS

2. At all material times, the Defendant was owner of the vessel Al Dhabiyyah ("Vessel"). The Defendant issued a Bill of Lading dated 25th December 1997 ("BL") for carriage of a cargo of gas oil shipped on board the Vessel from Onsan, South Korea to Xiamen, China. The 2nd Plaintiff, a Korean company is the shipper under the BL. The 1st Plaintiff, a Singapore company is an associate of the 2nd Plaintiff, both Plaintiffs being part of the well known conglomerate Sun Kyung now renamed SK. The case of the Plaintiffs is that the two Plaintiffs are the owners of the cargo and/or holders and/or indorsees of the BL. It is not disputed that the Cargo was carried pursuant to a Charterparty between the Defendant and a Hong Kong company, South View Holdings Ltd. ("South View") which had subsequently been wound up.

3. Upon the Vessel arriving in Xiamen, the Cargo was unfortunately released by the Defendant without the production of the BL but against a letter of indemnity provided by South View. Therefore the Plaintiffs make the claim against the Defendant. Two in rem writs were issued in Singapore. The 1st in Rem Writ issued in Singapore was dated 10th November 1998 and was issued by the 2nd Plaintiff. The 2nd in Rem Writ issued in Singapore was dated 7th of January 1999 and was issued by the 1st Plaintiff and the 2nd Plaintiff. What happened is that on 14th December 1998 the ship "Al Diyyinah" was arrested (as a sister ship) in the 1st Singapore Action by the 2nd Plaintiff. Security was put up for the Defendant by West of England P & I Club. Then upon the issue of the 2nd Singapore Action, the Defendant acknowledged also the 2nd Singapore Writ and caused the security originally provided to be replaced by an amended security ("Singapore Security") which covers the claims of the Plaintiffs in both set of Singapore Actions. As a protective measure, the Plaintiffs issued the Hong Kong In Rem Writ dated 7th January 1999. The Hong Kong In Rem Writ was issued as a precaution because the Defendant was disputing jurisdiction in Singapore and had applied to set aside the arrest and the Singapore Security which dispute was still ongoing in Singarpore.

4. The Defendant applied to stay the Singapore Actions on the ground of arbitration clause for London arbitration and on the ground of forum non conveniens contending that Singapore is not the appropriate forum but Hong Kong is the appropriate forum. On 12th April 1999, the Singapore Court refused to stay the proceedings in favour of London arbitration and there is no appeal from that order. On 28th May 1999, the Assistant Registrar of the Singapore High Court ordered a stay on ground of forum non conveniens. Apparently as customary, no reason was given. An appeal to a Judge in Chambers had been lodged by the Plaintiffs and this appeal will be heard on 6th of July 1999.

5. In Hong Kong, the protective In Rem Writ although issued by the Plaintiffs on the 7th of January 1999 (1 day before the expiry of the one year time limit for the mis-delivery claim) was not served. On the 5th of May 1999, an Acknowledgement of Issue of Writ of Summons of Action in Rem ("Voluntary Appearance") was filed purportedly by the Defendants, the owners of the ship JANANA.

6. By Summons dated 20th of May 1999, the Defendant asks this Court for an order that the Plaintiffs be required to serve a Statement of Claim in this Hong Kong Action within 7 days. By Summons dated 24th May 1999, the Plaintiffs ask this Court for an order that all further proceedings in the Hong Kong Action be stayed pending the determination of the question of the jurisdiction of the Singapore Court in the two Singapore Actions.

PLAINTIFFS' APPLICATION FOR TEMPORARY STAY

7. What is in dispute between the parties at the hearing is whether the Hong Kong proceedings should be given a temporary halt pending the determination by the Singapore Court of the stay application of the Defendant. If the Plaintiffs are allowed by the Singapore Court to proceed in Singapore, they wish to do so and discontinue the Hong Kong proceedings. The Defendant opposes a temporary halt in Hong Kong and says that it is entitled to insist upon the continuation of the Hong Kong proceedings even though this is an action in rem which has not been served by the Plaintiffs and in respect of which although the Defendant has entered voluntary appearance, the Defendant is unwilling to put up security for the Hong Kong proceeding and has refused to do so. The Defendant contends that the Court, even in the absence of Hong Kong security and in the face of opposition by the reluctant Plaintiffs in rem, should force the Plaintiffs to proceed by the service of the Statement of Claim within 7 days.

8. It is not in dispute that this Court has the jurisdiction and power to grant a stay of proceedings on the application of a plaintiff or of the defendant. Stay applications by the defendants in favour of another jurisdiction whether on the ground of an exclusive jurisdiction clause or on the ground of forum non conveniens are well known to everyone. What is unusual is a plaintiff asking for stay of proceedings which he himself has initiated. Mr. Dunlop for the Defendant does not dispute the jurisdiction of the Court to grant to the plaintiff stay of proceedings. The existence of the jurisdiction and the power is plainly to be seen in Section 16(3) of the High Court Ordinance:-

"Nothing in this Ordinance shall affect the power of the Court of Appeal or the Court of First Instance to stay proceedings before it, where it thinks fit to do so, either on its own motion or on the application of any person, whether or not a party to the proceedings."

9. The exercise of this jurisdiction is not frequent but that is because only in unusual situations, would a plaintiff or for that matter the court invoke this power. But there are a number of cases where this power was used. In The Sylt [1991] 1 Lloyd's Rep. 240, Mr. Justice Sheen referred to the use of the power in the case of The Attorney General v Arthur Anderson Co. being an unreported judgment of 30th March 1988 of the English Court of Appeal. The transcript of the Arthur Anderson Judgment has been made available at my request and it is highly relevant. The facts of the Arthur Anderson case are very similar to the facts of our case. There the plaintiff who had a claim against the defendant accountants for negligence wished to pursue the claim in the New York action but the defendant sought a stay of the New York action, wanting to litigate in England under the English action, commenced by the plaintiff by means of a protective writ. There would be a determination in the near future by the New York Court as to whether the New York action could proceed or be stayed and the plaintiff asked the English Court to stay the English action pending the determination by the New York court of the question of jurisdiction of the New York proceedings. At first instance, Steyn, J. granted the stay and the English Court of Appeal dismissed the appeal. Lord Justice Mustill (as he then was) said that:-

"... the plaintiff wishes to leave the action in abeyance until he sees how things turn out elsewhere. It may or may not be fair that he should be allowed to do so, but the task of deciding where...

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