This case arose out of a collision in Indonesian territorial waters between the BPL 1, a flat-top barge being towed by the tugboat Baruna 1 (both vessels owned by the plaintiff), and the Big Fish, owned by the defendant. Both parties claimed that the collision was caused by the negligence of the other, and both claimed to have suffered loss and damage. On 21 January 2021, the defendant commenced proceedings in the East Jakarta District Court, Indonesia, just before the two-year anniversary of the collision. On 11 February 2021, after the two-year anniversary of the collision, the plaintiff issued an in rem writ in Singapore against the defendant. The plaintiff’s solicitors obtained a warrant of arrest of the Big Fish from AR Ramu. The vessel was arrested in Singapore on 13 February 2021 and released two days later after security was provided in the form of a P&I Club LOU.

On 5 April 2021, the plaintiff filed a counterclaim against the defendant in the Indonesian action, seeking the same substantive remedies as in the Singapore action. The plaintiff also sought a conservatory attachment over the vessel in Indonesia. On 27 April 2021, the plaintiff sought leave to revoke the Indonesian counterclaim. The East Jakarta District Court permitted the plaintiff to revoke the Indonesian counterclaim and refile its statement of defence. The Court also emphasised that the plaintiff would not be permitted to change its statement of defence and file any counterclaim in the Indonesian action following the revocation.

The defendant applied to the Singapore Court for the following relief:

(a) The plaintiff be required to elect between the Singapore action and the Indonesian counterclaim, and should the plaintiff elect to proceed with the Indonesian counterclaim, the Singapore action be discontinued;

(b) The Singapore action be struck out pursuant to O 18 rr 19(1)(a)-(d) of the Rules of Court and the inherent jurisdiction of the court;

(c) The warrant of arrest be set aside for material non-disclosure; and

(d) The plaintiff to be ordered to pay damages for wrongful arrest.

The defendant argued, among other things, that the Singapore action should be struck out and the warrant of arrest set aside because the collision occurred in Indonesian territorial waters, and was therefore governed by Indonesian law. The limitation period for collision claims was two years from the date of the collision pursuant to art 742 of the Indonesian Commercial Code (also known as Kitab Undang-Undang Hukum Dagang or KUHD) [which predates, but is in similar terms to, art 7 of the Collision Convention 1910]. Article 742 of the KUHD provides:

After the lapse of two years, all legal claims become time-barred:
1. for compensation for damage caused either by collision or in a manner stated in arts 544 and 544a, first paragraph [non-compliance with statutory obligations and allisions];
2. for compensation for rescue/salvage assistance.

These time bars begin to run as follows:
1. From the day of the collision or of the damage being inflicted;
2. From the day on which the assistance was terminated … [Editor's translation.]

Accordingly, the limitation period for claims arising out of the collision expired on 22 January 2021. Since the Singapore action was commenced on 11 February 2021, it was time-barred. There was material non-disclosure by the plaintiff in the course of obtaining the warrant of arrest. The plaintiff failed to disclose and draw AR Ramu’s attention to the two-year limitation period under art 742 of the KUHD, with the plaintiff’s solicitors representing to him instead that the limitation period under Indonesian law is 30 years.

The plaintiff argued that the Singapore action should not be struck out, as there was a genuine triable issue on the applicable limitation period for vessel collision claims under Indonesian law. Notwithstanding art 742 of the KUHD, which prescribes a two-year time bar for vessel collision claims, the plaintiff argued that it was entitled to rely on the general limitation period of 30 years for tort claims provided under art 1967 of the Indonesian Civil Code.

Held: (a) There will be no order for the plaintiff to elect between the Singapore action and the Indonesian counterclaim; (b) The application to strike out the Singapore action is dismissed; (c) The warrant of arrest is set aside for material non-disclosure, and the LOU is to be returned; and (d) The issue of wrongful arrest (and any damages) is reserved to the trial Judge.

The plaintiff has made an affirmative election by withdrawing the Indonesian counterclaim. It is thus unnecessary to put the plaintiff to an election because of lis alibi pendens. Nevertheless, the defendant should be entitled to costs, as the plaintiff did not make an election until after this application was filed, despite reasonable requests from the defendant to do so.

The collision occurred in Indonesian territorial waters, and hence any tort committed would be governed by the laws of Indonesia. Accordingly, it is the limitation period under Indonesian law which applies, pursuant to s 3(1) of the Foreign Limitation Periods Act (Cap 111A, 2013 Rev Ed). The expert evidence on the Indonesian limitation issue is inconclusive. While numerous statutes, cases and academic treatises were cited by both parties, it is difficult to attribute weight to these sources of foreign law in the face of conflicting affidavit evidence. Cross-examination would be necessary to test the experts' views. Even assuming, for the sake of argument, that art 742 of the KUHD governed the present dispute, there appear to be authorities supporting the view that a legal notice or demand signed by an authorised official in the company and sent by written correspondence or email was capable of interrupting the limitation period. Whether that occurred in this case, and whether Indonesian law regarded service under these circumstances as sufficient to interrupt the limitation period, is a further issue that ought to be decided at trial. The defendant has not shown, to the high standard required for striking out, that the plaintiff's claim is time-barred.

Since the plaintiff commenced the Singapore action after the two-year anniversary of the collision, it knew, or must have known, from the claim papers filed in the Indonesian action that art 742 of the KUHD would be highly relevant to the viability of its claim. Thus, the Plaintiff ought to have disclosed and brought AR Ramu’s attention to two material facts:

(a) First, the existence of art 742 of the KUHD, because that limitation period applied generally to vessel collision claims and was of such weight to deliver a 'knock-out blow' to the plaintiff’s claim summarily (if found to be applicable).

(b) Second, the defendant had pleaded this time bar in the Indonesian action commenced earlier in respect of the same collision.

Both facts were undoubtedly relevant to the Court's decision on whether to grant the warrant of arrest, as they were circumstances suggesting an abuse of the arrest process. If both facts had been disclosed, AR Ramu is likely to have required further clarification as to why the limitation period in art 742 of the KUHD was not applicable on the facts before deciding to issue the warrant of arrest. Even on the plaintiff’s best case, the arrest affidavit contained material inaccuracies on the applicable limitation period for vessel collision claims. It is plain that there was material non-disclosure by the plaintiff when obtaining the warrant of arrest. The warrant of arrest should therefore be set aside. The net result of the decision to refuse the striking out, but allow the setting aside of the warrant of arrest, is that the in rem writ remains alive, and the plaintiff is at liberty to proceed with the Singapore action, but without security.

It is appropriate to reserve the question of wrongful arrest to the trial Judge, to be considered after the relevant findings have been made.