1 You may have seen many a quaint craft in your day, for aught I know;—square-toed luggers, mountainous Japanese junks; butter-box galliots, and what not; but take my word for it, ¹ it is at times not an easy quest to define what makes or does not make a floating craft a ship. The application before me raises this perennial question, viz, what makes a vessel a “ship” for the purposes of validly invoking the court’s admiralty jurisdiction? It might come as no small surprise to some but this deceptively simple question is one to which there appears to be no clear (and some might argue, consistent) answer in the wealth of jurisprudence on this topic amongst the courts in the Commonwealth. Indeed, as Lord Justice Scrutton famously commented in Merchants Marine Insurance Co Ltd v North of England Protection & Indemnity Association (1926) 26 Ll L Rep 201 (“Merchants Marine”) at p 202:

2 This case would also appear to be the first time this question is squarely before our courts, particularly in the context of the threshold definition of “ship” under s 2 of the High Court (Admiralty Jurisdiction) Act 1961 (2020 Rev Ed) (“HCAJA”). I characterise it as a “threshold” question because unless the object in question is a “ship” as defined in s 2 of the HCAJA, the court’s admiralty jurisdiction and consequently, the ability to invoke the powerful remedy of an admiralty arrest of that “ship” will not avail a claimant. This case therefore affords an excellent opportunity for me to consider the available caselaw both here and elsewhere, and attempt to distil from them some general principles for the benefit of the admiralty Bar, not least so that the proverbial “elephant” might be easier to define in future cases.

3 In HC/SUM 1070/2023 (“SUM 1070”), the defendant, as the owner of the “ECO SPARK”, seeks to, inter alia, (i) strike out and set aside the admiralty originating claim in rem commenced by the claimant against the “ECO SPARK” in HC/ADM 20/2023 (“ADM 20”) and (ii) to set aside the warrant of arrest issued against the “ECO SPARK” in HC/WA 6/2023 (“WA 6”). The sole basis upon which the defendant brings the application is that the “ECO SPARK” (a steel dumb barge subsequently converted into a floating fish farm) is not a “ship” within the meaning of s 2 of the HCAJA, and therefore, the General Division of the High Court is not seized with admiralty jurisdiction. In the alternative, if the action is not struck out or set aside, the defendant applies under s 6 of the International Arbitration Act 1994 (2020 Rev Ed) (“IAA”) for ADM 20 to be stayed in favour of arbitration.

4 For the reasons elaborated upon in this judgment, I find and hold that the “ECO SPARK” is a “ship” within the meaning of s 2 of the HCAJA and accordingly, the admiralty in rem jurisdiction of the court was properly invoked by the claimant. Consequently, I dismiss so much of SUM 1070 that seeks (i) to strike out/set aside ADM 20; (ii) to set aside WA 6; and (iii) consequential orders that the claimant releases the “ECO SPARK” from arrest and pays the defendant damages for wrongful arrest and detention.

5 With regard to the alternative prayer in SUM 1070 for a stay of proceedings in favour of arbitration, as it was not disputed by the claimant that its claim was subject to an arbitration agreement between the claimant and the defendant that fell within the ambit of the IAA, I grant the defendant’s application for a stay of ADM 20 in favour of arbitration, but subject to the condition set out in s 7(1)(a) of the IAA which I impose, ie, that the “ECO SPARK” is to remain under arrest and be retained as security for the satisfaction of any award that may be made in the arbitration between the claimant and defendant.

6 The claimant in ADM 20 is Vallianz Shipbuilding & Engineering Pte Ltd, which is a company registered in Singapore and engaged in the business of the building and repairing of ships, tankers and other ocean-going vessels, including the conversion of ships into off-shore structures. ²

7 The defendant in ADM 20 is Aquaculture Centre of Excellence Pte Ltd (“ACE”), the owner of the “ECO SPARK”. ACE is a company registered in Singapore and engaged in the business of operating fish hatcheries and fish farms in Singapore. ³ Purely for convenience, I shall hereafter refer to the “ECO SPARK” as the “Vessel”.

8 The defendant purchased and became the owner of the barge “WINBUILD 73” on 15 January 2021. ⁴ At that time, the barge “WINBUILD 73” was situated at a shipyard in Batam, Indonesia (the “Shipyard”). ⁵

9 By way of a contract between the claimant and the defendant dated 21 January 2021 (the “Contract”), the claimant agreed to convert the barge “WINBUILD 73” at the Shipyard into a “Special Service Floating Fish Farm”, to be named as the “ECO SPARK”. ⁶ The Vessel was to be constructed in accordance with the rules and under the special survey of the ship classification society Bureau Veritas (“BV”), and was to be distinguished in the register of BV by the symbol “I+ Hull Special Service – Floating Fish Farm, Coastal Area”. ⁷ The cost of the conversion was S$1,800,000. ⁸ The parties also agreed that the Vessel was to be delivered to “Singapore Farm Site FC131E at Serangoon Harbour” (the “Farm Site”) by 18 May 2021. ⁹ The Contract contained an arbitration clause in Art XIII: ¹⁰

10 On 22 June 2021, the parties entered into Addendum No. 1 to the Contract to revise the delivery date, in order to accommodate the defendant’s delay in providing the construction drawings for the conversion of the barge and supplying equipment to be installed on the Vessel. Addendum No. 1 stated in its preamble: ¹¹

11 The claimant tendered Notice of Readiness on 14 February 2022 and the Vessel was launched on 21 February 2022 in Batam, Indonesia. ¹² On 27 February 2022, the Vessel was towed by an ocean tug from the Shipyard to Singapore for physical delivery to the defendant. ¹³ The towing voyage was approved by the Vessel’s classification society. On 28 February 2022, the Vessel was physically delivered to the defendant at the Farm Site. ¹⁴ The claimant contends that the delay in delivery was due to the defendant’s persistent failure to provide the necessary drawings and the equipment to be installed on the Vessel. ¹⁵

12 After the delivery of the Vessel to the defendant at the Farm Site, disputes arose between the claimant and the defendant as to the sums payable pursuant to the Contract as amended by Addendum No. 1. ¹⁶ Between 11 October 2022 and 6 February 2023, the parties were engaged in heated correspondence on the matter. In sum, the claimant alleges that the total outstanding sum due to the claimant amounts to S$1,642,363.62; this includes the sum for conversion of 95% of the barge, various variation orders and interest on late payments, and also accounts for the defendant’s payment of S$1,800,000. ¹⁷ The defendant disputes the amount of the various variation orders claimed by the claimant and alleges that it has a claim for the sum of S$1,300,573.35 against the claimant in respect of uncompleted works under the Contract. ¹⁸

13 On 14 March 2023, the claimant filed an admiralty originating claim in rem against the Vessel in ADM 20, claiming the sum of S$1,642,363.62 and/or such other sums due from the defendant to the claimant pursuant to the Contract, in respect of the conversion of the barge into a “Special Service Floating Fish Farm”. In the affidavit leading its application for a warrant of arrest against the Vessel, the claimant asserted that the court was possessed of admiralty jurisdiction over the claim as the claim fell within s 3(1)(m) of the HCAJA, that is, “[a] claim in respect of the construction, repair or equipment of a ship …” [emphasis added] and that the court’s in rem jurisdiction over the “ship” or “barge” could be invoked pursuant to s 4(4) of the HCAJA. ¹⁹

14 On the same day, the claimant sought and obtained a warrant of arrest against the Vessel in WA 6, and the Vessel was arrested later that day. ²⁰

15 The defendant filed its Notice of Intention to Contest on 27 March 2023; and on 13 April 2023, filed SUM 1070.

16 In SUM 1070, the defendant seeks the following orders: ²¹

(a) the Originating Claim (In Rem) for Admiralty filed in ADM 20, the service thereof and all subsequent proceedings herein against the Vessel be struck out and set aside;

(b) WA 6 issued against the Vessel and the service thereof be set aside;

(c) that the claimant be ordered to release the Vessel forthwith;

(d) that the claimant pay to the defendant damages for wrongful arrest and detention of the Vessel, with such damages to be assessed by the Registrar; and

(e) in the event that the first prayer is not granted, that all proceedings in this action be stayed pursuant to s 6 of IAA. Alternatively, that all proceedings in this action be stayed in the exercise of the court’s inherent powers of case management.

17 The defendant submits that the orders it seeks should be granted for the following reasons: ²²

(a) the Vessel is not a “ship” within the meaning of s 2 of the HCAJA;

(b) on the basis that the Vessel is not a “ship” within the meaning of the HCAJA, the requirements for invoking the court’s admiralty jurisdiction in rem against the Vessel under s 4(4) of the HCAJA have not been satisfied;

(c) accordingly, ADM 20 should be struck out and WA 6 set aside;

(d) further, the arrest of the Vessel was carried out with malice. Accordingly, damages for the wrongful arrest and detention of the Vessel should be awarded against the claimant;

(e) in the alternative, in the event the court is not minded to strike out or set aside ADM 20, ADM 20 should be stayed in favour of arbitration as the requirements for a mandatory stay under s 6 of the IAA have been met.

18 The claimant contests SUM 1070, save for the defendant’s alternative prayer for ADM 20 to be stayed in favour of arbitration (see [5]). At the hearing before me, counsel for the claimant, Mr Henry Heng (“Mr Heng”), confirmed that the claimant has no objections to the defendant’s stay application and that the claimant had since commenced arbitration proceedings against the defendant. ²³

19 With regard to what I consider to be the core question in SUM 1070, viz, whether the Vessel is a “ship” within the meaning of s 2 of the HCAJA, it appears from the parties’ submissions and affidavits that they have taken what would be best described as a “kitchen sink” approach to this question, raising a multitude of characteristics of the Vessel (both present and absent) in support of their respective positions. For context and completeness, I set out the parties’ arguments below:

(a) The defendant’s case: ²⁴

(i) the Vessel is a floating fish farm and was converted from a barge to a floating fish farm;

(ii) the Vessel has no rudders or engines and is not capable of self-propulsion;

(iii) the Vessel does not have any navigational equipment and is not manned with a master or any seafaring crew;

(iv) the Vessel does not have any navigational lights;

(v) the Vessel does not transport any person, cargo or object;

(vi) since her installation on 28 February 2022 at the Farm Site, the Vessel has become immovable and will remain immovable for the duration of her operative life as a floating fish farm;

(vii) the Vessel is not registered to any flag state;

(viii) the Vessel’s class status has been withdrawn and she is not classified with any classification society;

(ix) the Vessel operates under a licence issued by the Singapore Food Agency (“SFA”) and is an approved structure erected within the Farm Site under a Temporary Occupation Licence (“TOL”) granted by the Singapore government;

(x) the Vessel does not pay any port dues or other charges and/or tariffs to the Maritime and Port Authority of Singapore (the “MPA”);

(xi) the Vessel has three spud legs (see “Figure 1” below) which have been embedded into the seabed with the assistance of an offshore crane. ²⁵ Once the spud legs have been embedded in the seabed, the Vessel becomes a stable fixture which may not be towed or moved from her location without the use of an offshore crane to detach the spud legs from the seabed. The Vessel cannot be safely operated if the spud legs are not properly embedded into the seabed;