Gericke Pte Ltd (the plaintiff) shipped a tilting platform of 12 mt from Singapore to Laem Chabang in Thailand on board the Hamlet Arabia. The plaintiff claimed damages from the time charterers of the vessel, Nortrans Shipping Pool Pte Ltd (the defendant), for failing to deliver the cargo at the port of delivery. The defendant counterclaimed for damages and a declaration that the plaintiff was liable to indemnity the defendant, alleging damage caused by the plaintiff’s cargo to the shipowner’s crane No 5, which had a safe working load of 12.5 mt, and to the Port of Singapore Authority (PSA) wharf at Pasir Panjang when the cargo fell from the crane while being loaded onto the vessel. There was also a discontinued third party indemnity claim against Dah Chong Industries Pte Ltd, the manufacturers of the tilting platform.

The shipment was made pursuant to a bill of lading governed by the Hague-Visby Rules, which also provided that the carrier ‘shall have a general lien on the goods … for all sums payable to the carrier under this contract’ (cl 16). The defendant claimed a lien under cl 16 and informed the plaintiff that the defendant would not deliver the tilting platform unless the plaintiff furnished the defendant with a bank guarantee for USD 202,678 as security for claims that might arise from the loading accident. The tilting platform was fabricated in Singapore for only SGD 39,000, but the demanded sum was USD 202,678, which was thought to be speculative. The plaintiff was therefore unwilling to furnish the guarantee. There was some communication between the solicitors of both parties, but before the defendant expressed its willingness to release the cargo subject to reservation of legal rights, the plaintiff, pressured by its Thai clients to deliver the tilting platform, made arrangements with a Thai factory for the purchase and delivery of another tilting platform for its Thai clients, costing SGD 36,974.

The plaintiff submitted that it was wholly unreasonable for the defendant to demand a bank guarantee for USD 202,678 when the value of the tilting platform which was shipped from Singapore was only approximately USD 25,000.

Held: The plaintiff’s claim was allowed. Whether the defendant actually had a contractual lien over the plaintiff’s cargo, it was not exercised properly, and the plaintiff was therefore entitled to damages for the defendant's breach of the carriage contract. The plaintiff had not pleaded that the terms of the lien clause in the bill of lading were not wide enough to give the defendant a contractual right to retain the tilting platform. The judge therefore did not have to decide whether the defendant had a lien, or what the scope of the defendant’s lien might be. However, the judge held that, even if the defendant had a lien, it was not properly exercised because the exercise of the contractual lien was not within reasonable limits with the amount demanded by way of bank guarantee being exorbitant. The claimed cost of repairs was more than ten-fold of the actual cost of repairs and the impact from the area of damage in the PSA wharf was insignificant. While the general rule in Albemarle Supply Co, Ltd v Hind & Co [1928] 1 KB 307 was that the fact that the amount demanded by a person who claims a lien was out of proportion to his lien did not always matter, the defendant’s claim could fall within the exception because the defendant furnished no particulars from which the correct amount could be calculated and it insisted on the full amount claimed until after the plaintiff had mitigated its loss by ordering another tilting platform for its Thai clients.

The judge also dismissed the defendant’s counterclaim. The burden under art 4.3 of the Hague-Visby Rules, ie that a shipper was not responsible for any 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, was on the defendant to prove that its loss was caused by the plaintiff. However, the actual weight of the tilting platform had not been established. It could not have weighed the alleged 16.271 mt, or have been too heavy to be lifted safely by crane No 5. Therefore, it might have been possible that the crane was defective. Moreover, there was no proper investigation into the cause or causes of the loading accident. The defendant’s critical witnesses - Captain Gagan (main witness but not at the scene of the incident) and an unnamed master (secondary witness but at the scene of the incident) - either refused to be interviewed or were not allowed to examine crane No 5. On the other hand, the plaintiff, listing particulars of the alleged negligence, contended that the loading accident on 1 October 1995 was wholly or partly caused by the negligence of the defendant, its servants or agents.

In view of the reports by the master and supercargo, the plaintiff contended that the accident would not have happened if the third officer’s instructions had been followed and that the accident could have resulted from the negligence of the stevedores or the crew. The onus was on the defendant to prove its counterclaim. As the defendant had failed to prove that the loading accident on 1 October 1995 was caused by the plaintiff’s failure to provide accurate information with respect to the weight of the tilting platform, its counterclaim was dismissed.