WILMAR TRADING PTE LTD V HEROIC WARRIOR INC (THE “BUM CHIN”)

[2019] SGHC 143, Singapore High Court, Belinda Ang Saw Ean J, 4 June 2019

Contracts – Bills of lading – Contracting and performing carrier – Tort – Negligence – Duty of care between registered owner and sub-charterer – Implied contract of carriage – Cargo operations – Cargo claims – Damage to cargo and vessel

The plaintiff, Wilmar, a commodities trader, had as buyer entered into three sale contracts for various palm oil products free on board (FOB) Indonesian ports. It nominated the carrying vessel Bum Chin, a Hong Kong flag oil/chemical tanker, for the shipment of a consignment of palm oil products to be loaded at Kuala Tanjung terminal in Indonesia for carriage to Jeddah and Adabiyah. The defendant, Heroic Warrior Inc, was the registered owner of the vessel. There was no charterparty between the parties; instead the plaintiff was nominated as charterer by a contractual sub-charterer. No bill of lading was issued. An incident on board Bum Chin on 17 April 2013 caused physical damage to the vessel and loss of and damage to the palm oil consignment. The plaintiff arranged for a substitute vessel to transport the palm oil purchased under the sale contracts. The plaintiff claimed damages on the grounds of contract and negligence, asserting that the defendant as contracting carrier failed in its duty to ensure that the vessel was seaworthy; and that the defendant, through its servants or agents, had failed to take reasonable care of the cargo. A key contention was that tank 4S was not cargo-worthy. The defendant counterclaimed against the plaintiff for the cost of repairs to Bum Chin, asserting that the plaintiff is responsible for the damage sustained by Bum Chin because the terminal involved in the loading of the cargo was acting as the plaintiff’s agent and the terminal had improperly performed its part of the cargo operations.