This case concerned a cargo of 13,500-15,000 mt of blended oil. The blended oil was a blend between the plaintiff’s oil cargo, carried on board the Trade Resolve (the defendant’s vessel), and the intervener’s emulsified oil, pursuant to an agreement between the plaintiff and the intervener. The dispute arose when the master of the Trade Resolve stopped the discharge of the blended oil from the Trade Resolve onto the Obo Gallantry upon the defendant’s and the charterer’s discovery that demurrage had not been paid. This was to preserve the defendant’s lien over the unpaid demurrage.

The plaintiff disputed the defendant’s entitlement to the lien. It commenced this action in rem for wrongful detention and conversion of the cargo and arrested the vessel. At the time of arrest, the Trade Resolve was anchored more than 3 but less than 12 nautical miles from the nearest land mass sovereign to Singapore. Both the writ in rem and warrant of arrest were served on the vessel at the same time beyond the limits of Singapore’s territorial waters. The intervener intervened in the action alleging that its emulsified oil was still on board and the defendant had refused to let it repossess its oil. The defendant entered an appearance to the action but applied to set aside the warrant of arrest on the ground that it was effected outside Singapore’s territorial waters and therefore wrongful. However, the defendant did not apply to set aside the service of the writ in rem. The defendant hoped to achieve a determination on the merits of the action concerning the lien, including the issue on the validity of the vessel’s arrest. The defendant was of the view that, by entering an appearance to set aside the arrest but not the service of the writ in rem, this would waive any irregularity concerning the service of the writ in rem but not the irregularity of the arrest. Moreover, by submitting to the jurisdiction of the court, this would prevent the plaintiffs from obtaining a judgment in default. The defendant also expressed its reservation of its right to challenge the validity and lawfulness of the arrest. The plaintiff argued that by waiving the irregularity of the service of the writ in rem out of jurisdiction and submitting to the court’s in rem jurisdiction, the defendant must be deemed to have concurrently waived any irregularity in the vessel’s arrest outside of Singapore’s territorial waters. However, the plaintiff conceded that one could serve a writ in rem without arresting the vessel, though adding that it was most unusual.

The court had the admiralty jurisdiction to hear this claim (ss 3(1)(g) and 3(1)(h), High Court (Admiralty Jurisdiction) Act). Although the admiralty writ in rem and the warrant of arrest were both validly issued, it was in dispute whether the entitlement to invoke the admiralty jurisdiction by an action in rem against the vessel and to have it arrested had actually been exercised. The plaintiff made three submissions to argue that the Trade Resolve was arrested within Singapore’s territorial waters and therefore the plaintiff had exercised the entitlement to invoke the admiralty jurisdiction. First, while the Trade Resolve was off port limits (port limits at that location fell three nautical miles from Singapore), it was on the nearer side of the median line to Singapore and within 12 nautical miles. Second, there was a press release by the Ministry of Foreign Affairs that suggested that Singapore had in effect declared an extension of its territorial sea to 12 nautical miles. Third, the Singapore Police Coast Guard vessels have been seen patrolling in this area on numerous occasions, which demonstrated that Singapore had been exercising its rights of sovereignty in that area. The United Nations Convention on the Law of the Sea (1982) (UNCLOS), ratified by Singapore on 17 November 1994, was relevant in deciding whether the Trade Resolve was inside or outside Singapore’s territorial waters.

Held: The judge dismissed the plaintiff’s claim.

It was possible for the defendant to both submit to the court’s jurisdiction to deal with the dispute on the cargo when contesting whether the court’s admiralty jurisdiction in rem against the Trade Resolve was properly invoked, and, at the same time, challenge the vessel’s arrest as wrongful, unlawful and ineffective for want of jurisdiction, because they were entirely separate matters. Accordingly, the judge held that the action in rem could still be tried and a judgment in rem obtained.

Article 28 of UNCLOS imposed­­ limitations for arrest of foreign ships which must be observed notwithstanding the word choice of ‘should not’ (art 28.1) and ‘may not’ (art 28.2), which did not appear to be absolute prohibitions; art 28 was inserted to preserve the right, recognised by customary international law, of peaceful or innocent passage through the territorial sea for vessels of States other than the coastal State as embodied in arts 17-19 of UNCLOS (erroneously referred to as art 14 in the case report).

A foreign ship could be arrested even though it was innocently passing through Singapore’s territorial sea if it had assumed or incurred any obligations or liabilities while it was within the territorial waters of Singapore. However, if the obligations or liabilities were antecedent liabilities assumed or incurred prior to the vessel’s entry into territorial waters, the vessel could not be arrested for making an innocent passage through the territorial waters of Singapore. However, if the foreign ship had stopped or anchored within the territorial waters of Singapore and was no longer continuing its innocent passage through the territorial waters, the vessel could be lawfully arrested because the interest of the coastal state had reassumed its importance; in such a case, there was no need to balance the countervailing necessity to keep sea lanes of communication as open as possible. This does not apply where the stopping or anchoring was reasonably incidental to ordinary navigation, or was rendered necessary by force majeure or by distress because stopping or anchoring would be regarded as an integral part of the vessel’s innocent passage through the territorial sea of Singapore.

The Trade Resolve’s innocent passage, whether through the territorial sea or not, had been completed by the time of its arrest. It was already at anchor and, whilst at anchor, was performing blending operations. Hence, if it was not outside Singapore’s territorial sea, it could be lawfully arrested without any breach of Singapore’s international obligations.

At the time of arrest, the Trade Resolve was 4.05 nautical miles from Sultan Shoal Lighthouse, Singapore and 4.61 nautical miles from Tanjung Piai, Malaysia. This was a location in the waters between the 3 nautical mile limit, as delimited by art 15 of UNCLOS (which delimits the 12-mile territorial seas of the adjacent coastal States where the separation between the coastal States was less than 24 nautical miles), and the median line, and thus an area on the open sea or high sea and not within the territorial waters of either Malaysia or Singapore.

The press release could not amount to any actual exercise of Singapore’s rights pursuant to art 3 of UNCLOS, as the date of the press release preceded the date when UNCLOS was opened for signature at Montego Bay, Jamaica. The announcement was not a declaration of the extension of Singapore’s territorial waters to the 12-nautical mile limit or to the median line at the points where the separation between the baselines of Singapore and neighbouring States was less than 24 nautical miles. It was merely a declaration of an intention to exercise its rights and that Singapore would exercise its rights to extend its territorial sea limit to a maximum of 12 nautical miles with the precise coordinates announced at some appropriate time in the future. In the event Singapore’s claim of a territorial sea limit of 12 nautical miles was to overlap with the claims of neighbouring countries, Singapore would negotiate with these countries to reach an agreed delimitation in accordance with international law. Singapore’s territorial sea, in the absence of subsequent exercise of rights under UNCLOS and international law for extension to 12 nautical miles, remained at 3 nautical miles. However, this did not mean that neighbouring States had an increased right under UNCLOS or international law to extend the limits of their territorial sea beyond the median line to the full extent of 12 nautical miles. Article 15 of UNCLOS specifically prohibited any extension, in the absence of agreement, by a neighbouring State of its territorial limit beyond the median line unless any of the limited exceptions applied. No exceptions were applicable here.

The presence or absence per se of these Singapore Police Coast Guard vessels in these waters could not, and did not, establish if Singapore’s territorial sea according to international law extended to where these coast guard vessels were sighted.

Since the Trade Resolve was located outside Singapore, the admiralty writ in rem could not have been served (o 70 r 3(3), Rules of Court). The lack of jurisdiction to hear the action as an action in rem would not be cured either by the submission to jurisdiction or the waiver of the irregular service of the writ in rem out of jurisdiction. On whether the defendant waived any irregularities, the judge held that the plaintiff’s ‘irregularity’ was not a mere irregularity which could be waived by the defendants — it was a nullity. The admiralty in rem jurisdiction of the court could not have been validly invoked and the court would not have any jurisdiction to try the action as an action in rem nor give a judgment in rem against the vessel. Accordingly, the necessary prerequisite for the invocation of the court’s admiralty jurisdiction was not satisfied because the Trade Resolve was located outside Singapore.

If the necessary prerequisites had been satisfied, the invocation of the court’s admiralty jurisdiction in rem against the Trade Resolve would be determined to occur at the point of time of service of the writ or execution of the warrant of arrest, whichever was the earlier.

While the court would not, by the defendant’s submission to jurisdiction and its waiver of the irregularity of service of the writ in rem outside jurisdiction, be vested with the jurisdiction to hear the action as an action in rem against the vessel, it might exercise its admiralty jurisdiction to hear the matter as an action in personam. Since the defendant entered an appearance and submitted to the court’s jurisdiction to determine the merits of the plaintiffs’ claim and their claim to the lien, it had submitted personally to the jurisdiction of the court.

As for the exercise of the lien over the cargo, the lien clause in the charterparty, which did not provide for detention charges, had been incorporated into the bill of lading, giving the defendant rights against the cargo owners, whoever they might be. The defendant was thus entitled to the lien on the cargo and accordingly the sale proceeds for the unpaid demurrage and costs, but not the detention charges.

The arrest was unlawful, invalid, more than a mere irregularity and involved mala fides. There was also no jurisdiction to arrest the foreign vessel because it was not within Singapore’s territorial waters and the arrest was in direct and deliberate contravention of the Registrar’s authorisation. The plaintiff’s unauthorised arrest of the vessel, despite its full awareness that the vessel was outside port limits, was evidence of bad faith justifying the award of damages for wrongful arrest. Accordingly, the arrest was set aside.