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EMEA | Publication | June 2024
As noted in our June 2024 Legalseas “What is a “ship?” article, the summary of the “ECO SPARK” Singapore High Court’s judgments is summarised below.
The claimant in the case had filed an admiralty claim in rem against the “ECO SPARK” for sums due from the owners pursuant to a contract to convert the “ECO SPARK” from a steel dumb barge (then known as “WINBUILD 73”) to a floating fish farm. The claimant also arrested the “ECO SPARK” on the basis that its claim was “[a] claim in respect of the construction, repair or equipment of a ship …” and that the Court’s in rem jurisdiction over the “ship” could be invoked. The owners applied inter alia to strike out the action and to set aside the arrest primarily on the basis that the “ECO SPARK” was not a “ship” within the meaning of section 2 of the High Court (Admiralty Jurisdiction) Act 1961 (“HCAJA”) and the General Division of the High Court was therefore not seized with admiralty jurisdiction.
The question that the Singapore High Court had to determine was therefore whether the “ECO SPARK” was a “ship” for the purposes of invoking the Singapore Court’s admiralty jurisdiction.
Under the HCAJA, an action in rem may be brought against the res – most frequently ships; and the word “ship” includes any description of a vessel used in navigation. “Vessel” is not defined in the HCAJA but under the Interpretation Act 1965 the term “vessel” includes floating craft of every description. It was common ground between the parties that the “ECO SPARK” was a floating craft and thus a vessel.
The owners’ application therefore turned on the definition of the phrase “used in navigation”– the Singapore High Court noted that this was an indispensable qualifier to the definition of a “ship” under various statutes across a number of jurisdictions.
The Honourable Justice S. Mohan took the opportunity to review the authorities from various jurisdictions, noting that the authorities were not always consistent – for instance, some of the earlier cases suggested that the assessment of whether a vessel is “used in navigation” looks to its actual use, while more recent cases suggest the answer depends on whether it is designed and capable of being used for navigation, irrespective of the actual current use. He favoured the approach of the recent cases: that the applicable test for whether a vessel is “used in navigation” depended on its design and capability of being used for navigation.
In the context of the HCAJA which confers admiralty jurisdiction, if a vessel is designed for and capable of being used in navigation, that should be a weighty consideration that that vessel falls within the definition of a “ship” under section 2 of the HCAJA, since the navigability of a vessel is what gives rise to the risk and danger of it having the ability to be removed from a jurisdiction (which in turn is one of the reasons a claimant would wish to invoke the Court’s admiralty jurisdiction to arrest a vessel).
The inquiry as to what is a “ship” is necessarily multi-factorial. The list of ship-indicia is not a short one, and the more of such characteristics that a vessel can check against, the more likely the vessel is a “ship”. At the same time, however, the failure to tick some of these boxes does not necessarily mean that the vessel cannot constitute a “ship”. Some examples of ship-indicia are as follows:
At the minimum, and in line with the indispensable qualifier “used in navigation”, the inquiry should be directed toward the capability of the vessel to be used in navigation as a matter of its capability (based on its physical design and construction) instead of its actual current use: Is the vessel navigable and built to withstand the perils of the sea?
In this case, the Singapore High Court was tasked with weighing a balance of various conflicting factors:
Finding that the “ECO SPARK” was a “ship” within the meaning of section 2 of the HCAJA, the Singapore High Court found that it was therefore seized with admiralty jurisdiction. The owners’ application to strike out the action and to set aside the arrest was consequently dismissed.
Concluding words
The inquiry as to what is a “ship” is necessarily multi-factorial. Ultimately, one must necessarily consider the specific and unique circumstances of each case in considering whether the Singapore High Court’s admiralty jurisdiction can be invoked. That said, the Court’s observations and clarifications in this judgment are no doubt useful in guiding one’s analysis on whether a floating craft ought to be considered a “ship” for the purposes of invoking admiralty jurisdiction.
Particularly since the claimant in an in rem action bears the onus to establish (to the standard of the balance of probabilities) the jurisdictional fact of whether an object is a “ship” as defined in the HCAJA, the clarity provided the Court on what is a ship greatly enhances the certainty of when the Singapore High Court’s admiralty jurisdiction may be invoked, and consequently, the attractiveness of Singapore as a jurisdiction for proceedings against ships.
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