The plaintiff claimed that Pyramid Lines Singapore Pte Ltd (the first defendant) had agreed to carry a cargo of medical products and equipment stuffed into a container loaded onto the first defendant's vessel, Supa Bhum, from Penang, Malaysia, to Sihanoukville, Cambodia, that was thereafter transported by truck to the consignee in Kandal Province, Cambodia. When the cargo arrived at the consignee's warehouse in Cambodia, it was discovered that the cargo was frozen and damaged due to the failure to maintain the appropriate temperature.

The second defendant was the freight forwarder of the first defendant. The third defendant was the bonded warehouse keeper in Penang port. The second and third defendants had corresponded with the plaintiff in arranging booking, loading, and stowage of the cargo for the contract of carriage. The plaintiff's causes of action against the first and second defendant were for breach of bailment and/or under the contract of carriage. The plaintiff's claim against the third defendant was for breach of bailment.

The cargo was shipped under a non-negotiable bill of lading. Clause 1 of the bill of lading provided that the contract was governed by the laws of Singapore and subject to the exclusive jurisdiction of the Singapore court.

The first and second defendants applied to stay the action on the grounds that the parties had agreed that the Singapore court would determine all their disputes under this exclusive jurisdiction clause. The plaintiff contended that, despite the exclusive jurisdiction clause, the Singapore court was forum non conveniens.

Held: Applications dismissed.

The court had jurisdiction under s 23 of the Courts of Judicature Act 1964 because the damage to cargo had likely occurred in Malaysia. In cases involving exclusive jurisdiction clauses, the party seeking to depart from the clause must show 'strong cause' based on the criteria set out in The Eleftheria [1969] 1 Lloyd's Rep 237, 242. For the following reasons, a strong cause has been demonstrated in this case for the Court to exercise its discretion not to stay the action in favour of the Singapore court, which was forum non conveniens.

The Carriage of Goods by Sea (Amendment) Act 2020 and the Carriage of Goods by Sea (Amendment of the First Schedule) Order 2021 gave effect to the Hague-Visby Rules and provided for their compulsory application to bills of lading and similar documents of title issued in relation to all outward-bound cargoes from Malaysia.

The bill of lading here adopted the legislation. According to cll 5.1 and 6.2 of the bill of lading, if it was established that the loss or damage occurred from and during loading onto the vessel up to and during discharge from the vessel, the liability of the carrier shall be determined in accordance with any applicable legislation making the Hague Rules or Hague-Visby Rules compulsorily applicable to the bill of lading. As the vessel departed Penang with the cargo on board to Cambodia, it was therefore indisputably clear that the Act applied compulsorily in this case. This was a factor in favour of permitting the action to remain in Malaysia, although it was not sufficient to satisfy 'a strong cause' test on its own, but other factors in this case made it so.

There was no dispute that the one-year time limit stipulated in art 3.6 of the Hague-Visby Rules was applicable to the plaintiff's claims against the first and second defendants. This provision explicitly states that legal actions against the carrier must be initiated within one year from the delivery date of the goods.

Here, the cargo was delivered to the consignee on 12 October 2021. According to the Hague-Visby Rules, the plaintiff had until 11 October 2022 to file their claims against the first defendant and or the second defendant. The plaintiff lodged this lawsuit on 30 September 2022, well within the one-year time frame specified by the Hague-Visby Rules. The plaintiff's claim would be out of time in Singapore. Granting a stay would lead to a grave miscarriage of justice as the plaintiff would be deprived of the chance to have its case heard on its merits and potentially recover the rightful compensation for the damage sustained. This constituted a compelling reason for the Court to permit the plaintiff to deviate from the provision of the exclusive jurisdiction clause.

Where a plaintiff had acted reasonably in commencing proceedings, a stay should only be granted on terms that the defendants waive the time bar in the foreign jurisdiction. In this case, there was no suggestion that the plaintiff had not acted reasonably in commencing proceedings, and yet the first and second defendants did not waive raising the time bar defence in Singapore. This suggested that they did not genuinely desire a trial in Singapore, but were seeking to deprive the plaintiff of a juridical advantage in the present proceedings.

Many factors in this case, when viewed objectively, made it reasonable and appropriate for the plaintiff to commence proceedings in Malaysia. The plaintiff had also commenced this action against the third defendant, which had no direct contractual relationship with the plaintiff. Compelling the plaintiff to commence its claim against the first and second defendant in Singapore would lead to conflicting judgments or findings of fact regarding the parties' responsibility for the damage, as well as unnecessary legal costs and expenses. Furthermore, a Malaysian venue offers a more cost-effective alternative regarding court charges, alleviating the financial strains on those involved in the litigation. Moreover, other than the fact that the first defendant was based in Singapore, there was no nexus between the plaintiff's claim and Singapore.