The appellant, Pacific Navigation Co Pte Ltd, was a shipping company incorporated in Singapore and engaged in shipping business. The respondent, Ohm Pacific Sdn Bhd, was a company incorporated in Malaysia. In 1982, the parties agreed to form a joint venture company for the purpose of purchasing a vessel to carry rice from Bangkok to Malaysian ports. There were fiscal advantages in operating the vessel under the Malaysian flag. Accordingly, the respondent company was incorporated in Malaysia as the vehicle for the joint venture, and 51% of the shares of the company were allotted to directors of the respondent, and the balance of 49% to directors of the appellant. Notwithstanding this difference in the allotments, it appeared that each side was to have an equal interest in the respondent company and that the respondent would hold 1% of the shares as nominee for the appellant.

In May 1984, the respondent purchased a vessel, the Peony, from Limerick Shipping Ltd of Hong Kong, intending to register it in Malaysia. However, the respondent was not successful in procuring finance. To avoid a forfeiture of the deposit, the appellant paid the balance of the purchase price and completed the purchase in its name. In June 1984, the vessel was registered in the name of the appellant as owner with the Registry of Ships in Singapore. The parties entered into an agreement whereby the appellant would hold the vessel as security for the loan and other moneys owing to it from the respondent, but the beneficial ownership of the vessel would remain vested in the respondent.

On 19 October 1984 the vessel was placed on the Malaysian flag under a provisional registration in the respondent's name and was renamed the Ohm Mariana. The ship was permanently registered in the Malaysian Registry of Ships on 15 April 1985 in the name of the respondent. On 15 April 1985 a registered ship mortgage was created in favour of the bank to secure the loan of MYR 1,725,000.

On 19 September 1985 the appellant instituted an action in rem against the vessel claiming over SGD 300,000 in respect of disbursements made as agents for and on behalf of the respondent on account of the vessel, and claiming agency and other fees and commission, interest and costs. A warrant of arrest was issued and the vessel was arrested in Singapore.

GP Selvam JC held that the appellant's claim did not fall within s 3(1) of the High Court (Admiralty Jurisdiction) Act (Cap 123) (the Act), and that the appellant had invoked the admiralty jurisdiction in rem against the vessel in error, as the respondent was not, at the time when the cause of action arose, the owner of the vessel within the meaning of s 4(4) of the Act. He therefore held that the Court had no jurisdiction and on that ground dismissed the appellant's claim. The appellant appealed to the Court of Appeal.

Held: Appeal upheld.

The appellant's statement of claim clearly showed that the claim was made by the appellants for various disbursements made by the appellant as a managing agent of the respondent on account of the vessel, and short particulars were given. Purely on the basis of the pleadings, there was no question that the claim came squarely within para (o) of s 3(1) of the Act, and the High Court has jurisdiction to hear and determine it. The distinction between 'managers' and 'managing agents' is not material; these are purely terminologies. What is material is whether in fact the appellant was an agent managing the vessel and performed services in relation to the vessel as an agent for the respondent at the material time. That, as the pleadings show and it was admitted by the respondent, they clearly were.

Section 4(4) of the Act provides:

In the case of any such claim as is mentioned in section 3(1)(d) to (q), being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of the action arose, the owner or charterer of, or in possession or in control of, the ship, the admiralty jurisdiction of the Court may (whether the claim gives rise to a maritime lien on the ship or not) be invoked by an action in rem against -

(a) that ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person; or

(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid.

The claim was one falling within para (o) of s 3(1). It was not in dispute that the respondent was 'the person who would be liable on the claim in an action in personam'. There remained two conditions which the appellant had to satisfy at the time it instituted the action in rem against the vessel, namely: (a) that the respondent was, at the time the cause of action arose, 'the owner or charterer of, or in possession or in control of' the vessel; and (b) the vessel was, at the time when the action was brought, beneficially owned as respects all the shares therein by the respondent. There was no dispute that the second condition was satisfied. The only issue was whether the first condition was also satisfied. The vessel was registered with the Singapore Registry of Ships in the name of the appellant as owner from June 1984-April 1985. From 19 October 1984, the vessel was provisionally registered in the Malaysian Registry of Ships and only on 15 April 1985 was the vessel permanently registered in the Malaysian Registry of Ships in the name of the respondent as the owner.

In The Evpo Agnic [1988] 1 WLR 1090, 1096 (CMI2225) Lord Donaldson MR said:

[F]or present purposes, what is in issue is what is meant by 'owner'. Does it refer to the registered owner, who necessarily is the legal owner, or to someone who has only an equitable property in the ship?

In answering this question I bear in mind three important considerations. First, it is a basic rule of construction that where a statute employs different terminology in different provisions, prima facie a different meaning is intended and this is particularly the case if the differing terminology occurs within a single subsection. 'Owner' in para (b) of s 21(4) thus falls to be contrasted with 'beneficial owner' in sub-paras (i) and (ii). Second, all maritime nations maintain registers of shipping which record the names of the owners. These registers are of fundamental importance as establishing the flag of the vessel, thereby making it for some purposes part of the floating territory of that country and subjecting it to the laws of that country. I would therefore regard the concept of a registered owner as being a nominal owner as a contradiction. Third, the Convention clearly looks to ownership and registered ownership as one and the same, although as Robert Goff J pointed out in I Congreso del Partido [1978] QB 500, 541, the 'trust' concept involving a dichotomy between legal and equitable ownership may be unknown to some, and perhaps most, other jurisdictions. My conclusion is that, in relation to a registered ship, 'owner' in s 21(4)(b) means 'registered owner'.

This is the passage that was adopted by GP Selvam JC in deciding that the word 'owner' in s 4(4) means 'the registered owner'. Having regard to the relevant facts before the Court the statement in the judgment that in relation to a registered ship the word 'owner' in s 21(4)(b) of the Supreme Court Act 1981 means 'registered owner' was really an obiter dictum. The Evpo Agnic is not an authority for the proposition that the word 'owner' in s 21(4)(b) (which is the equivalent of s 4(4) of our Act) means the 'registered owner'.

Registration of a ship does not determine and is not conclusive as to the true ownership of the ship. It is prima facie evidence that the registered owner is the owner of the ship. Second, although the word 'owner' in s 4(4) can be contrasted with the words 'beneficially owned' in paras (a) and (b), there is nothing to suggest that the word 'owner' should be restricted only to 'registered owner'. It can be validly read and construed more widely than 'registered owner'. Third, it is significant to note that the person who would be liable in personam and against whose ship an action in rem may be brought is not confined merely to the 'owner' of the ship in question but extends to other categories of person, namely, charterer or person in possession or control of the ship. Each of these categories has a substantive, and not merely a formal or nominal, role in relation to the ship in question. In the context of these words, the word 'owner' cannot be construed to mean only the 'registered owner'. If this narrow construction is adopted, the consequence would be that no action in rem would lie against an offending ship whose owner, having bought it, fails or refuses to register it. Take, for instance, the case of a person who has just bought a registered ship and for some reason has delayed registration of the transaction. If in the meantime the ship incurs a liability in respect of which a claim falling within one of the paras (d)-(q) of s 3(1) arises, on this narrow construction, an action in rem could never be brought against the ship in respect of that claim on or after the registration of the transaction.

In this case, at all material times since the purchase of the vessel the respondent was the beneficial owner of the vessel. It had the right to sell, dispose of or alienate the vessel. This was so even at the time when the vessel was held by the appellant as security; should the respondent exercise its right of sale, disposal or alienation it would of course have to pay to the appellant the amount secured. The respondents was therefore, at the time the cause of action arose, the owner of the vessel, though it was not the registered owner, and it was also the owner as respects all the shares in the vessel at the time the action was brought.