[1997] SGHC 204

In the High Court of the Republic of Singapore

[1997] SGHC 204

Suit 1973/1995

Between

Gericke Pte Ltd

… Plaintiff

And

Nortrans Shipping Pool Pte Ltd

… Defendant

And

Dah Chong Industries Pte Ltd

… Third Party

grounds of decision

Admiralty and Shipping — Carriage of goods by sea — Voyage charterparties

This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.

Gericke Pte Ltd v Nortrans Shipping Pool Pte Ltd (Dah Chong Industries Pte Ltd, Third Party)

[1997] SGHC 204

Suit 1973/1995
Tan Lee Meng JC
31 July 1997

1 TAN LEE MENG JC

2 Cur Adv Vult

3 The plaintiffs, who shipped a tilting platform from Singapore to Laem Chabang in Thailand on board the `Hamlet Arabia`, claim damages from the defendants, the time charterers of the vessel, for failing to deliver the cargo at the port of delivery. The defendants have a counterclaim against the plaintiffs with respect to damage allegedly caused to the shipowner`s crane and to the Port of Singapore Authority wharf at Pasir Panjang by the plaintiffs` cargo when it fell from the said crane while it was being loaded onto the vessel. It is the defendants` case that the cargo fell because it was much heavier than its declared weight. The plaintiffs contended that if they are liable to the defendants, they are entitled to an indemnity from the third party, the manufacturers of the tilting board, from whom the particulars regarding the weight of the tilting platform were obtained. During the trial, the plaintiffs withdrew their claim against the third party, who, in turn, withdrew their counterclaim against the plaintiffs with respect to the balance of the purchase price of the tilting platform which remained unpaid.

The carrier shall have a general lien on the goods and any documents relating thereto for all sums payable to the carrier under this contract and for general average contributions to whomsoever due and for the cost of recovering the same, and for that purpose shall have the right to sell the goods by public auction or private treaty without notice to the merchant.

10 Lyle Shipping Co Ltd v Corp of Cardiff [1899] 5 Com Cas 87 and The Boral Gas; Rashtriya Chemicals and Fertilizers Ltd v Huddart Parker Industries Ltd [1988] 1 Lloyd`s Rep 342.) A shipowner who relies on a lien clause must be careful enough to insist on the payment of sums that are properly ascertained. In Albermarle Supply Co Ltd v Hind & Co [1928] 1 KB 307 at p 318, Scrutton LJ explained:

A person claiming a lien must either claim it for a definite amount or give the owner particulars from which he himself can calculate the amount for which a lien is due. The owner must then in the absence of express agreement tender an amount covering the lien really existing. If he does not, unless excused, he has no answer to a claim of lien. He may be excused from tendering (1) if he has no knowledge or means of knowledge of the right amount; (2) if the person claiming the lien for a wrong cause or amount makes it clear that he will not release the goods unless his full claim is satisfied and that claim is wrongful.

12 (b). damage to the wharf including a possible loss of use claim by PSA - US$49,295;

13 (c). storage charges in Thailand - US$200 per month;

14 (d). survey charge and possible legal costs in Thailand (assuming there is litigation) - US$41,155;

15 (e). interest on default at 7.5% per annum (assuming litigation in Thailand for one and a half years) - US$20,478.

17 Albermarle Supply Co Ltd v Hind & Co [1928] 1 KB 307 at p 319, which has been referred to above, the `fact that a claim is made for more than the right amount does not matter unless the claimant gives no particulars from which the right amount can be calculated, or makes it clear that he insists on the full amount of the right claimed.` In this case, the fact that the defendants` claim was for an exorbitant amount matters because the defendants furnished no particulars from which the right amount can be calculated and they insisted on the full amount claimed until after the plaintiffs had mitigated their loss by ordering another tilting machine for their Thai clients. In the circumstances, the defendants` assertion that the plaintiffs ought to have taken delivery of the tilting platform which had been shipped from Singapore after the defendants decided not to insist on the furnishing of a bank guarantee does not hold water. The plaintiffs are thus entitled to damages for the defendants` failure to deliver the cargo at the port of delivery in accordance with the terms of the contract of carriage. As such, the defendants are liable to pay the plaintiffs the cost of the second tilting platform, which amounts to S$36,974, together with interest as from the date of the writ to the date of judgment.

18 The defendants` counterclaim

19 In their counterclaim, the defendants claim to be entitled to damages and to a declaration that the plaintiffs are liable to indemnify them against any liability, loss or damage incurred or to be incurred by them in consequence of claims made or to be made against them in respect of the loading accident on 1 October 1995. The defendants, who contended that the true weight of the tilting platform was 16.27 tons and that the wire runner of the crane snapped because the tilting platform was too heavy for the crane, said that they relied on the plaintiffs` representation in the shipping order form and the bill of lading that the tilting platform weighed 12 metric tons. In their view, the accident would not have occurred had the true weight of the tilting platform been properly declared because another more powerful crane would have been used to lift the tilting platform onto the vessel. They asserted that the plaintiffs were in breach of cl 14 of the bill of lading, which provided as follows:

(1) The shipper warrants to the carrier that the particulars relating to the goods as set out overleaf have been checked by the shipper on receipt of this bill of lading and that such particulars and any other particulars furnished by or on behalf of the shipper are correct. (2) The shipper shall indemnify the carrier against all loss damage and expenses arising or resulting from inaccuracies in or inadequacy of such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under this bill of lading to any person other than the shipper.

The shipper shall not be responsible for loss or damage sustained by the carrier or the ship or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.

26 (b). failing to use a crane with a safe working load of 35 metric tons when told to do so by the third officer of the Hamlet Arabia;

27 (c). failing or refusing to heed the warnings of the supercargo of the vessel to cease all attempts to lift the tilting platform by using the crane with a safe working load of 12.5 metric tons;

28 (d). using a forklift to assist in the lifting of the tilting platform when they knew or ought to have known that it was unsafe to do so;

29 (e). failing to employ a safe and proper system of loading.

[It] was seen by duty officer (3/O) Mr D Ghosh that the crane could not lift the cargo. As such, he protested to the supercargo, Mr Age Sansaunet and the stevedore foreman, who were present there. However, he was ignored and further he saw a 15 MT forklift being used to assist the cargo. On noticing this irregularity, the third officer immediately ran to the engine room to put the crane power off. But before he could put the power off, the crane with the help of forklift, lifted the cargo to approx 4 MTR HT and then as the forklift backed out due to the apparent excessive weight, the crane runner wire parted and the cargo of tilting platform fell heavily on the wharf.

I then went to the foredeck to check cargo work there and exchanged a few words with the third officer who was on duty. The third officer then noticed that the stevedores were about to lift the tilting platform and asked how heavy it was. I told him it was 12 tons. That seemed to worry him and he went and told the stevedores to stop what they were doing and use the 35 ton crane at the other end of the hatch instead.

Wondering why he was worried I asked if the crane was not good for 12 tons. He said yes, the crane was good for 12 tons and hesitatingly allowed the work to progress. We then both went to the lifeboat deck to see the tilting platform being lifted on board.

The crane was just able to lift the tilting platform clear off the trailer it was lying on. I turned to the third officer and commented something about the crane`s lifting capacity. He was clearly worried and started for the accommodation. I then turned to the stevedores and signalled and shouted for them to lower the tilting platform down. They did not pay any attention and somebody had got the idea of having a ten-ton forklift help lifting. By help of the forklift they lifted the tilting platform a further about 4m up and then backed the forklift out.

Naturally, the crane could still not lift it further. By now even the stevedores realised that the tilting platform could not be loaded this way and started to lower it down. When it was about 1-2m above the wharf the crane wire parted and the tilting platform fell down.

34 Costs

35 As for costs, the plaintiffs are entitled to costs. However, in relation to the third party, there is no order as to costs.

Tan Lee Meng JC

Anthony Lee and Lye Kah Cheong (Bih Li & Lee) for the plaintiffs
Abbas Ali bin Fakhruddin (Joseph Tan Jude Benny & Scott) for the defendants
Ravinran Kumaran (WT Woon & Co) for the third party