The appellants were at the material time the owners of three ships: Brani Island, Senang Island and Kusu Island. The respondents were the owners of 93 bales of cotton sheets which were shipped and carried on board the Brani Island from Karachi to Singapore under two bills of lading dated 15 and 30 September 1979 respectively. Each bill provided for Singapore law to be the governing law, and that the contract of carriage was subject to the provisions of the Hague-Visby Rules as applied by the Singapore Carriage of Goods by Sea Ordinance (by which the Hague-Visby Rules had the force of law).

The Brani Island arrived in Singapore on 15 October 1979 and the respondents took delivery of the cargoes on 27 October 1979. It was found that part of the cargo was damaged. Negotiations between the parties took place, but did not lead to settlement. Ten days before the expiry of the period of one year, the respondents commenced this admiralty action in rem against the owners of the ship or vessel Brani Island claiming damages for breach of contract and/or negligence. Six months later, on 21 April 1981, the respondents amended the writ adding two ships, which were sister ships of the Brani Island. No leave of court was required to make this amendment.

On 14 October 1981, one day before the validity of the writ expired, the respondents took out an ex parte application for a renewal of the writ for a further 12 months, which was granted. The Kusu Island arrived in Singapore, and the writ was served on it. In November 1981, the appellants entered a conditional appearance and applied for an order that the amendment to the writ (the addition of the two sister ships) should be disallowed and struck out, and therefore that the service of the amended wit on the Kusu Island should be set aside.

The registrar allowed the application to strike out the writ. The respondents appealed, and the appeal was heard before Lai Kew Chai J in chambers. The Judge allowed the appeal and held that the amendment to the writ ought not to have been struck out. He found that the amendment to the writ was a correction of the name of the defendants (the appellants), and the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any doubt as to the identity of the appellants.

The appellants appealed.

Held: The appeal is allowed.

The amendment was not a correction of the name of the appellants. Their name as originally appeared in the writ was correct: 'The owner of the ship or vessel Brani Island'. What the respondents did was to add to that name two sister ships of Brani Island namely, Senang Island and Kusu Island. There was no material on which the respondents could make out a case of mistake.

As to whether the amendment ought to be allowed under the general provision in para 1 of O 20 r 5 (of the Singapore Rules of Court) the Court of Appeal found as follows:

In an admiralty action in rem where a defendant enters an unconditional appearance, it submits to the jurisdiction of the Court personally and from then onwards the action continues as an action in rem and in personam, and judgment may be entered and enforced against it to the full extent of the damages awarded to the plaintiff and is not limited to the value of the res or the bail which represents the res.

If no appearance is entered by the defendant to an action, judgment when entered is enforceable only against the res and no more, and the defendant in such an action will not suffer any personal liability.

The bills of lading in the present case each contained an express provision for a one-year period of limitation and also incorporated art 3.6 of the Hague-Visby Rules via the Singapore Carriage of Goods by Sea Ordinance, which provided for the same period of limitation. This period expired on 26 October 1980.

In Aries Tanker Corp v Total Transport Ltd [1977] 1 All ER 398 (CMI2194) the House of Lords held, among other things, that such a provision as art 3.6 of the Hague Rules created a time bar of ‘a special kind’, viz one which extinguished the claim and not one which merely barred the remedy while leaving the claim intact.

The writ in this case was taken out prior to the expiry of the limitation period. But it was taken out only against the res, Brani Island. The amendment to include Senang Island and Kusu Island was made approximately 6 months after the expiry of the period of limitation. If at this date the respondents had taken out a writ in rem against Senang Island and Kusu Island or either of them claiming for the same damages as claimed in this action, that claim would have been time-barred. It would then be too late to invoke the admiralty jurisdiction in rem against them or either of them. If Kusu Island was not named in the writ, the respondents would not have that res against which they could proceed. Viewed in this light, the Court questioned whether the amendment of adding Senang Island and Kusu Island to the writ should be allowed.

In the absence of any direct authority on this point, the Court derived assistance from what it held to be an analogous position of adding a new party or a new cause of action after the lapse of the period of limitation.

The Court had regard to the case Mabro v Eagle Star and British Dominions Insurance Co Ltd [1932] 1 KB 485 in which an application to amend the writ by adding a plaintiff was made after the lapse of the statutory period of limitation and was refused. The Court also considered the case of Lucy v W T Henleys Telegraph Works Co Ltd [1970] 1 QB 393 in which the English Court of Appeal similarly refused an application to join a new defendant against whom the claim was time-barred.

The Court of Appeal found that the principles laid down in the English cases were equally applicable to the present case. The amendment, if allowed, would defeat the defence of the period of limitation which the appellants would have had if an action in rem against Kusu Island were instituted at the time of the amendment.

The Court thus held that where, as here, an action in rem against a proposed ship can be defeated by a plea of limitation, the appellants cannot escape the consequence by seeking to add the proposed ship as the res in a pre-existing action in rem.

The Court also observed that under Singapore law there is no statutory discretion to grant an extension of time. A fortiori, having regard to the nature of action in rem and the lapse of the contractual period of limitation, leave for the amendment ought to be refused, and accordingly, the amendment ought to be struck out. The appeal would be allowed, and the order of the Registrar would be restored.