This case involved 2,523 pieces of Ramin logs which were shipped on board the barge L 2600 and towed by the tug Jeddy X for carriage from Pulau Pisau and Paminggir, Indonesia, to Singapore under two bills of lading. The barge and tug left for Singapore on 19 September 1974 and while still in Indonesian waters had to be diverted to Sampit Bay, Indonesia, where soon after arrival on 21 September 1974 the barge, which was heavily listing to port, was grounded. Singapore Salvage Engineers, a Singapore firm of salvors, inspected and carried out salvage operations at the request of the appellant. Apparently the cargo of Ramin logs had been damaged by seawater.

Arising out of those transactions the plaintiff/respondent, as the owner or person entitled to the delivery of the cargo of Ramin logs, commenced an admiralty action in rem against the owner of the barge L 2600 as first defendant, and against the owner of vessels Jeddy IV, Jeddy VII, Jeddy XI and Jeddy XII as second defendant, for damages and loss suffered by it, and in the same action sued Amerco Timbers Pte Ltd in personam, as the third defendant as the person who issued or on whose behalf the two bills of lading were issued for damages and loss suffered by it.

Only the third defendant/appellant has so far been served. It entered a conditional appearance to the writ of summons and applied to have the writ set aside or alternatively for all further proceedings in the action against it to be stayed on the ground that under the contract of carriage contained in the two bills of lading the parties had provided that 'all actions under this contract shall be brought before the court at Djakarta'. The application was first heard by the Deputy Registrar who dismissed the application with costs. The third defendant/appellant appealed to the High Court. Chua J, who heard the appeal, dismissed it with costs and affirmed the order of the Deputy Registrar. The appellant appealed to the Court of Appeal.

Held: Appeal dismissed.

The law concerning an application for a stay is clear. Where a plaintiff sues in Singapore in breach of an agreement to submit its disputes to a foreign court, and the defendant applies to a stay, the Singapore court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. The court in exercising its discretion should grant the stay and give effect to the agreement between the parties unless strong cause is shown by the plaintiff for not doing so. To put it in other words the plaintiff must show exceptional circumstances amounting to strong cause for it to succeed in resisting an application for a stay by the defendant. In exercising its discretion the court should take into account all the circumstances of the particular case. In particular, the court may have regard to the following matters, where they arise:

(a) In what country the evidence on the issues of fact is situated or more readily available, and the effect of that on the relative convenience and expense of trial as between the Singapore and foreign courts.

(b) Whether the law of the foreign court applies and, if so, whether it differs from Singapore law in any material respects.

(c) With what country either party is connected and, if so, how closely.

(d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages.

(e) Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would:

(i) be deprived of security for their claim;

(ii) be unable to enforce any judgment obtained;

(iii) be faced with a time bar not applicable here; or

(iv) for political, racial, religious or other reasons be unlikely to get a fair trial.

The appellant in support of its application for a stay relies first on the agreed stipulation contained in cl 28 of the bill of lading which reads: 'Jurisdiction. All actions under this contract be brought before the court at Djakarta and no other court shall have jurisdiction with regard to any such action unless the carrier appeals to another jurisdiction or voluntarily submits himself thereto.'

The appellant further says that this stipulation was advisedly provided for at the appellant's instance because it carried on business mainly in Indonesian waters and practically all the voyages of its vessels owned or chartered by it began or ended in Indonesian ports and those vessels were almost invariably crewed by Indonesian crew. It had contemplated that in the case of a dispute the court in Djakarta should have jurisdiction over it as it would be difficult to get the Indonesian crew to testify in a foreign jurisdiction.

The appellant's counsel also referred to cl 27 of the bills of lading which is in these terms: 'Law of application. In so far as anything has not been dealt with by the provisions of this Bill of Lading the Law of Indonesia shall apply.' He went on to submit that, as the law of Indonesia applied to this contract, the court in Djakarta would be a more suitable court to hear this claim. Besides, in the event of the appellant being dissatisfied with the decision on a question of law, it could appeal to a higher court. It would be denied this right in a trial in Singapore as any decision on question of the law of Indonesia would be treated as a question of fact and the appeal would be a limited one.

The respondent, on the other hand, in resisting this application, says that first it is a Singapore company, and the appellant, too is a Singapore incorporated company. The barge and tug also have their registrations outside Indonesia and are not owned by the appellant. Moreover, there are no arrangements between Singapore and Indonesia for the reciprocal enforcement of judgments. If the respondent was forced to proceed with this claim in Indonesia and was successful it may not be able to see the fruits of the judgment unless the appellant had assets in Indonesia of which it has no knowledge. It may well be that it would still have to sue the appellant in Singapore, albeit on the Indonesian judgment.

The second point urged by the respondent is on the Hague Rules. By cl 2 of the bills of lading this contract was subject to the Hague Rules. Indonesia has not adopted the Hague Rules as part of its domestic law. The Indonesian courts it would appear have also not had occasion to deal with a case where the contract at issue was subject to the Hague Rules. On the other hand, the Hague Rules form part of the laws of Singapore and cases concerning the interpretation of the Hague Rules have been dealt with before by the courts here. Besides, English decisions on various issues involving the interpretation of the Hague Rules can be relied on in proceedings before the courts here. Therefore, the respondent says that this is another reason why the court in Singapore rather than the court in Djakarta would be a more appropriate forum to hear this action.

The respondent further submits that all the evidence concerning the issue of seaworthiness of the barge would come from the experts mentioned here who had investigated and inspected the barge and from the maintenance records of the barge. All the witnesses who can speak on this issue are in Singapore or readily available in Singapore. The only other important issue in this claim would be the extent of the damage and loss to the respondent's cargo. Bork Singapore Pte Ltd, who belong to an International Group, and who are experts in timber, were asked soon after the casualty to inspect the state of the logs in question and their evidence would be very relevant to establish the extent of damage and loss to the respondent's cargo. The respondent asserts that as practically all, if not all, the witnesses and other evidence on the likely issues involved in this claim are in Singapore for both the respondent and the appellant, the court in Singapore rather than the one in Djakarta would be the more appropriate one to hear this action. It will mean less costs and less trouble to all the parties and the appellant will in no way be prejudiced by it. The final point the respondent urges in its favour why this application should be refused is because it is time-barred to commence proceedings in Indonesia. Under the Hague Rules which apply to this contract of carriage it should have brought this action within one year and it was out of time at the time the appellant made its application here.

The respondent's first point was that, as the appellant is a Singapore incorporated company, if it proceeded in the Djakarta court and obtained judgment against it on its claim, it may still not see the fruits of the judgment and may have to further proceed against the appellant in Singapore. This is a factor which merits some consideration in its favour though the weight to be attached to it would be slight. This was one of the points where counsel for the appellant at the hearing modified his stand and said that, in the event of this court granting the application, the appellant would undertake to furnish sufficient security in Indonesia to meet the respondent's claim should it succeed in its action here. This modification, though late, negatives any advantage the respondent would have had earlier from it.

As to the point that, as the contract was subject to the Hague Rules, the Singapore court would be the more appropriate one to hear such a matter, both parties in their affidavits referred to legal opinions they had respectively obtained from lawyers practising in Indonesia concerning the reception and the application of the Hague Rules by the courts at Djakarta. From these opinions there is no evidence that, although Indonesia has not adopted the Hague Rules and there have been no cases before the court at Djakarta involving the application and interpretation of the Hague Rules, in appropriate cases such as the one here where the parties to a dispute had in their contract giving rise to the dispute agreed that Hague Rules would govern their transaction, the Indonesian courts would not give effect to that agreement of the parties and apply the Hague Rules in relation to the transaction and the dispute arising from it, or that they would be disinclined to refer for guidance where necessary to appropriate foreign court decisions relating to the interpretation of the Rules. That being so, this is not a factor that would help the respondent to resist the appellant's application for a stay of the Singapore proceedings.

The third and main point is that practically all the witnesses are here in Singapore and the barge’s maintenance records can also be made readily available in Singapore, if necessary. Therefore, for all concerned, the court in Singapore would be a more appropriate forum to deal with this action. It will be very convenient for all and no expenses need be incurred in transporting them to Indonesia and accommodating them in hotels there.

The appellant, however, has maintained that the master and crew of the tug Jeddy X, who are all Indonesians, are highly material witnesses in this action. The appellant says it would be very difficult or almost impossible to get them to come to Singapore to give evidence. They are no longer in the appellant's employment and there is no way of compelling them to come to Singapore and testify in this action. This is the appellant's main additional point beside the fact that the parties here had in their contract specifically agreed for actions under the contract to be heard in the courts in Djakarta. In fact the appellant goes so far as to say it was because in actions of this sort concerning the carriage of goods it had envisaged that the master and crew of their vessel would be material witnesses and the difficulty it would experience in getting them to testify in a foreign jurisdiction that it made this specific provision in its bills of lading for the courts in Djakarta to have jurisdiction for actions under these contracts.

However, practically all the evidence is in Singapore or readily available here while little or no material evidence is situated in Indonesia. This factor not only gives weight to the respondent's stand to have this application dismissed but also fails to add any weight whatever to the appellant's prima facie case for a stay of proceedings here based on the foreign jurisdiction clause.

Next, there is the fresh point raised by the appellant that, as Indonesian law governs this contract, the court in Djakarta would be the more appropriate court to hear this action. There is no evidence before this Court that Indonesian law differs from our law in any significant respect concerning matters relating to this claim or that there is likely to be any serious dispute on the application of Indonesian law to the issues in this case. Besides, there is no material to show that a Singapore court would have any difficulty in applying Indonesian law should the need arise. There may be cases where complicated issues of law are likely to arise when the application of the law by a foreign court may not be desirable and at best avoided but there is no material to infer that this is one such case. That being so, little weight is attached to this factor.

Having regard to all the circumstances, even without considering the further point of the respondent being time-barred to sue in Indonesia on this claim, the respondent has shown strong cause to refuse a stay of these proceedings. Appellant's counsel indicated if the appellant's application for a stay were granted it would undertake to waive its defence of the time bar if it can lawfully do so there and provided the respondent commenced proceedings in the next six months. If Indonesian law would not permit such a waiver this concession by the appellant would be of no avail to the respondent. The appellant's original reaction to this point was that it was in no way to blame for the predicament the respondent finds itself in. The respondent, the appellant says, could have taken steps to protect its rights in Indonesia by having taken appropriate action within the proper time. One could either attach no weight to this point of the respondent or adopt the view preferred by Brandon J in The Adolf Warski [1976] 1 Lloyd’s Rep 107, 114 when considering the same point of time bar expressed his view obiter thus: 'Provided that an action has been brought in time in England, I do not see that a defendant will, in general at any rate, be much prejudiced by the fact that a concurrent action to protect the time limit has not also been so brought in the chosen forum abroad. On that basis, assuming that it would be right, apart from the question of time bar, to enforce a foreign jurisdiction clause by staying an action here, I think that it would often be reasonable, unless real prejudice to the defendant is clearly proved, to make such enforcement subject to a condition that the defendant should waive reliance on the time bar if he can lawfully do so; or alternatively, if such waiver is not permissible, to refuse a stay.'

If the alternative view of Brandon J is correct, the appellant's concession, to meet the requirements indicated above, would have to be completely effective and not, as here, only if the foreign law permits it. If the first view is correct that this point carries no weight, this concession is not even necessary and makes no difference when tendered except to show that the appellant was not seeking merely a procedural advantage.