The plaintiff, Banque Cantonale de Geneve, a Swiss bank which had provided trade financing to its customer in respect of a cargo shipped on the defendant's vessel, commenced an admiralty action and obtained a warrant of arrest against the Jeil Crystal, which was owned by the defendant, Jeil International Co Ltd. The plaintiff's claim was based on the fact that it was the lawful holder of the original bills of lading issued in respect of the cargo, and that the defendant had delivered the cargo without production of the original bills. However, at the time the action was commenced and the warrant of arrest obtained, the plaintiff no longer had possession of the original bills of lading. They had been sent by the plaintiff to its customer, and thereafter, switched by the defendant with a fresh set of bills of lading. This switch was allegedly effected without the plaintiff's knowledge or consent. The writ in rem was served, the vessel was arrested, and alternative security was furnished by the defendant to procure its release. Following the discovery of the true state of affairs, the plaintiff sought leave of the Court to amend its statement of claim. Instead of a claim for (mis)delivery of the cargo without production of the original bills of lading, the plaintiff put forward an amended claim for breach of contract and/or negligence, on the basis that the defendant had wrongfully switched the bills of lading without the plaintiff’s knowledge and consent, in consequence of which the plaintiff was removed as a party to the contract of carriage and its rights and interests in the cargo extinguished.

The defendant cross-applied to set aside the writ and warrant of arrest and, in the alternative, to strike out the action. The defendant argued that the writ and warrant should be set aside because they were based on a non-existent cause of action. Even if the amended statement of claim could cure the defect in the writ, it could not cure the defect in the warrant of arrest. For the latter proposition, the defendant relied on the Hong Kong Court of First Instance decision of Justice Barnett in Victory Star Shipping Company SA v The Owners and All Those Interested In The Ship 'Amigo' and World Happy Shipping Ltd [1991] HKCFI 64.

Held: The warrant of arrest may be upheld on the basis of the plaintiff's amended claim even though it was not originally pleaded by the plaintiff at the time of the application for the warrant of arrest.

A close reading of The Amigo shows that it does not stand for any general principle that an amended statement of claim can never be a basis to uphold a 'defective' writ or warrant of arrest. The decision needs to be understood within its proper context. The Court's primary concern on the facts of The Amigo was that the claim, as originally framed by the plaintiff, did not disclose any cause of action giving rise to an action in rem. The original claim was in essence and substance (albeit a fleeting reference in the relief section to a claim for possession) a claim for the balance of the purchase price of the vessel. As noted by Barnett J, that was not a claim that fell within the Court's admiralty jurisdiction. It was in that context that Barnett J found that the warrant of arrest was wrongly issued, ie, because the original claim advanced by the plaintiff did not fall within the Court’s admiralty subject-matter jurisdiction. It is axiomatic that the Court’s admiralty jurisdiction is essentially statutory and that threshold jurisdiction cannot be waived or conferred by agreement. A Court would be clearly acting without jurisdiction if a plaintiff’s claim did not satisfy the basic condition for jurisdiction, ie, that the claim to be heard and determined by the court falls within its admiralty subject-matter jurisdiction (see The 'Ohm Mariana' ex 'Peony' [1992] 1 SLR(R) 556 [15]-[16] (CMI1382); The 'Alexandrea' [2002] 1 SLR(R) 812 [10]-[11]). Barnett J did not consider, nor did he hold, that a warrant of arrest can never be upheld on the basis of an amended claim. It is clear that the Judge considered it a factually sensitive inquiry, and chose not to exercise his discretion in favour of upholding the warrant of arrest on the specific facts of the case. The Court in The Amigo may well have come to a different conclusion had the original claim been one that did give rise to an action in rem, but which had been incorrectly pleaded factually.

Here, the original claim made by the plaintiff on the basis that it had custody and possession of the original bill of lading fell squarely within the admiralty jurisdiction of the General Division of the High Court, notwithstanding that it was made on an erroneous factual basis. Under s 3(1)(h) of the High Court (Admiralty Jurisdiction) Act 1961 (HCAJA), the General Division of the High Court has admiralty jurisdiction to hear and determine 'any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship'. It is well-established that the words 'any claim arising out of' are to be read widely as any claim which is 'connected with the agreement' (The 'Indriani' [1995] 2 SLR(R) 458 [20], [23]). It is also well-established that s 3(1)(h) HCAJA is wide enough to encompass claims in tort, and that the 'agreement' need not be between the plaintiff and the defendant shipowner (The Antonis P Lemos; Samick Lines Co Ltd v Owners of the Antonis P Lemos [1985] AC 711, 719 (CMI2212); The 'Indriani' [18]). What is relevant is whether the claim is sufficiently connected with the agreement as an essential part of the plaintiff’s case (The Indriani [23]). The plaintiff's amended claim would also fall within the court’s admiralty jurisdiction. For example, the claim against the defendant in the tort of negligence for breaching its duty of care to the plaintiff in effecting the switch of the bills of lading would be a claim 'connected with' (and therefore, 'arising out of') either the original or the switch bill of lading. Either bill of lading would constitute 'an agreement relating to the carriage of goods in a ship', and it is immaterial that, eg, the plaintiff was never a party to the switch bill. These are material distinguishing features between this case and The Amigo.

Further, the relation back rule supports the upholding of the warrant of arrest. The relation back rule is well-known and is explained in Singapore Civil Procedure para 20/8/3 as follows:

An amendment duly made, with or without leave, takes effect, not from the date when the amendment is made, but the date of the original date of the original document which it amends; and this rule applies to every successive amendment of whatever nature and at whatever stage the amendment is made. Thus, when an amendment is made to the writ, the amendment dates back to the date of the original issue of the writ and the action continues as though the amendment had been inserted from the beginning: 'the writ as amended becomes the origin of the action, and the claim thereon indorsed is substituted for the claim originally indorsed' ...

Since the amendment to the statement of claim cures the pleading defect in the endorsement of claim in the writ, the latter is also to be treated as having been amended (or cured) retrospectively to 10 October 2020 (ie, the date on which the admiralty action was commenced and the warrant of arrest was issued). This was not a case where the plaintiff sought, through an amendment, to introduce a new cause of action or facts that did not exist at the date of the writ. At the material time, the switch of the original bill of lading had occurred and the cargo had been delivered to third parties, and, as the plaintiff asserted, without its knowledge or consent. The cause of action under the amended claim thus existed at the material time.

[For the successful appeal to the Court of Appeal, see The 'Jeil Crystal' [2022] SGCA 66 (CMI2014).]