planmarine ag v mpa [1999] sgca 16

[1999] 1 SLR(R) SINGAPORE LAW REPORTS (REISSUE) 669

Planmarine AG v

Maritime and Port Authority of Singapore

[1999] SGCA 16

Court of Appeal — Civil Appeal No 166 of 1998Yong Pung How CJ, M Karthigesu JA and Lai Kew Chai J26 January; 10 March 1999

Admiralty and Shipping — Practice and procedure of action in rem — Sheriff’sexpenses — Whether sheriff can treat port dues as part of his expenses — Whethercourt has discretion to regard port dues as part of expenses

Statutory Interpretation — Construction of statute — Purposive approach —Whether statute must be ambiguous or inconsistent before purposive approach can betaken — Ascertainment of meaning gleaned from Parliamentary speech — Section 9AInterpretation Act (Cap 1, 1997 Rev Ed)

Facts

The vessel Hurst arrived in Singapore in 1996 and remained in port until herarrest on 14 March 1997 by Sinwa (Singapore) Pte Ltd (“Sinwa”), a creditor ofthe owners of the Hurst. Sinwa commenced admiralty proceedings and obtaineda default judgment and a court’s order to sell the Hurst. Paragraph 2 of the orderprovided that if the sale proceeds exceeded the sum of $250,000 after deductingsheriff’s commission, expenses and port dues, such excess should be paid intocourt.

The Hurst was mortgaged to the appellant Planmarine AG (“Planmarine”). On6 June 1997, Planmarine demanded that the owners of the Hurst settle theirmortgage debt of US$67 million. On 1 July 1997, the Hurst was sold for $1.9m.The Maritime and Port Authority’s (“MPA”) port dues for the period2 March 1997 to 1 July 1997 amounted to $433,755. On 30 July 1997,Planmarine intervened in the admiralty proceedings and sought, inter alia, thatthe sheriff be directed not to pay MPA’s port dues from the proceeds of sale anda declaration that the claim for port dues did not have priority over other claimsagainst the sale proceeds. MPA resisted Planmarine’s application.

The High Court dismissed the application. Three issues on appeal were first,whether port dues were payable to MPA under the 1994 PSA notifications whenthe Hurst was arrested from 14 March to 8 April 1997; second, whether portdues were payable to MPA under the 1997 MPA Notification; and third, whetherMPA’s claim for port dues should be treated as part of the sheriff’s expenses andbe paid out from the sale proceeds in priority to other claims.

Planmarine’s counsel submitted that port dues were like taxes and MPA was notentitled to claim for port dues if there were no prescribed port dues for arrestedvessels in the 1994 PSA Notification. Further, an arrested vessel did not make“use” of the port and no port dues were payable under s 27(7) of the Maritimeand Port Authority of Singapore Act (Cap 170A, 1997 Rev Ed) (“MPA Act”). Shealso argued that the phrase “where a vessel was arrested” in para 3(1) of the 1997

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670 SINGAPORE LAW REPORTS (REISSUE) [1999] 1 SLR(R)

MPA Notification, by its plain and ordinary meaning, excluded vessels whichwere arrested before such notification came into effect and there should be alegal presumption against retrospective application. Finally, she requested thecourt to overrule the practice in The Felicie [1991] 2 SLR(R) 550 that PSA’s portdues were considered part of the sheriff’s expenses. She averred that the practicewas without legal foundation and inequitable.

Held, dismissing the appeal:

(1) The statutory scheme of the 1994 PSA Notification was such that allvessels “in port” had to pay port dues prescribed in para 1(b) unless a vessel wasexempted from doing so under para 1(a) as a vessel belonging to the governmentor unless it was specifically required to pay different rates. As the Hurst was “inport” and did not fall into any of the exceptions, port dues would be payableunder the 1994 PSA Notification: at [13].

(2) Section 27(7) of the MPA Act required that owners of vessels pay portdues when the vessels entered the port or called at Singapore. An arrested vessel“used” the port by being sheltered from the elements and the crew having accessto port services: at [15].

(3) It was clear from s 9A(1) of the Interpretation Act (Cap 1, 1997 Rev Ed)that a provision need not be ambiguous or inconsistent before adopting apurposive approach to its statutory interpretation. Paragraph 3(1) of the 1997MPA Notification had to be construed by the purpose behind it and not in theway the phrase was crafted. The purpose of the 1997 MPA Notification was toallow the MPA to take over the PSA’s function of collecting port dues and thephrase in para 3(1) extended to include a continuing state of arrest.Paragraph 3(1) also did not impose any liability retrospectively as events whichoccurred before the statute came into effect would affect the quantum ofpayments after the statute came into force: at [19], [22], [25] and [26].

(4) The practice in The Felicie was upheld and was legally founded in thecourt’s discretion to include port dues as part of the sheriff’s expenses on thebasis that port dues was a “necessary and proper” expense of the sheriff when hecarried out his duty. The practice was equitable to all parties in that it allowedthe sheriff to sell the arrested vessel free from encumbrances. Without such apractice, MPA might be compelled to exercise its statutory right of detentionunder s 29 of the MPA Act in every case where a vessel was not released fromarrest so as to obtain payment of port dues. This would result in delay in the saleof the vessel and lead to further deterioration of the vessel and escalation in thecosts of preserving the vessel: at [32], [34], [37] and [39].

(5) It was not unjust to make the arresting solicitor liable for port dueswhenever the sale proceeds were insufficient to pay for the sheriff’s expenses.Such risk was inherent in every arrest and every arresting solicitor had theopportunity to evaluate the risks before making the arrest: at [36].

(6) It did not matter whether port dues ranked paramount or last in thesheriff’s expenses as Planmarine’s claim as mortgagee would have ranked belowthe MPA’s claim for port dues: at [38].


[1999] 1 SLR(R)Planmarine AG v

Maritime and Port Authority of Singapore 671

Case(s) referred toCharger, The [1968] 1 WLR 1707; [1966] 3 All ER 117; [1966] 1 Lloyd’s Rep 670

(distd)Commissioners of Customs and Excise v Thorn Electrical Industries Ltd [1975] 1

WLR 1661; [1975] 3 All ER 881 (distd)Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803; [1995] 2 SLR 201

(folld)Countess, The [1923] AC 345 (refd)Felicie, The [1991] 2 SLR(R) 550; [1992] 1 SLR 175 (folld)Freightline One, The [1986] 1 Lloyd’s Rep 266 (folld)How William Glen, Re [1994] 2 SLR(R) 357; [1994] 3 SLR 474 (distd)Keppel Corp Ltd v Chemical Bank [1994] 1 SLR(R) 54; [1994] 1 SLR 346 (folld)L & W Holdings Pte Ltd v MCST Plan No 1601 [1997] 3 SLR(R) 30; [1997] 3 SLR

905 (folld)Queen of the South, The [1968] P 449 [1968] 1 All ER 1163 (folld)Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 (folld)Sussex Peerage, The (1844) 11 Cl & Fin 85; 8 ER 1034 (distd)Yew Bon Tew v Kenderaan Bas Mara [1983] 1 MLJ 1; [1983] 1 AC 553 (folld)

Legislation referred toInterpretation Act (Cap 1, 1997 Rev Ed) s 9A (consd);

ss 9A(1), 9A(2), 9A(4)Maritime and Port Authority of Singapore Act (Cap 170A, 1997 Rev Ed)

ss 27(7), 27(11), 29(1), 29(2), 29(3)Maritime and Port Authority of Singapore (Scales of Dues, Rates and General

Fees) Notification 1997 (S 190/97) Schedule Part I para 3(1)Port of Singapore Authority (Dissolution) Act 1997 (No 6 of 1997)Port of Singapore Authority (Scales of Dues and Rates) (Amendment)

Notification 1995 (S 544/95) para 3Port of Singapore Authority (Scale of Dues and Rates) Notification 1990

(S 159/90) Schedule Section I Items 1(c)(i), 1(c)(ii)Port of Singapore Authority (Scales of Dues and Rates) Notification 1994

(S 289/94) Schedule Section I Item 1 para 1(b)Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 70 r 9(3)Finance Act 1972 (c 41) (UK) s 7(8)

Belinda Ang SC (Ang & Partners) for the appellant; Steven Chong SC and Colin Seah (Rajah & Tann) for the respondent.

[Editorial note: The decision from which this appeal arose is reported at [1998] 2SLR(R) 517.]



10 March 1999

M Karthigesu JA (delivering the grounds of judgment of the court):

1 This was an appeal against the decision of the High Court dismissingan application for an order that the sheriff be directed not to pay out anymoney from the proceeds of sale of the vessel Hurst towards payment ofport dues charged by the Maritime and Port Authority of Singapore(“MPA”). We heard the appeal on 26 January 1999 and dismissed it. Wenow give our reasons.

The facts

2 It was Christmas day when the Hurst arrived in Singapore in 1996.She remained in port until she was arrested on 14 March 1997 by Sinwa(Singapore) Pte Ltd (“Sinwa”), the plaintiffs in the court below, whocommenced the admiralty action against the owners of the Hurst for therecovery of unpaid price of goods and materials supplied to the vessel.

3 On 11 April 1997, Sinwa obtained judgment in default of appearance.Sinwa also obtained on the same day, an order of the court (“the saleorder”) for the Hurst to be sold. Paragraph 2 of the order for sale providedthat the proceeds of sale, if it exceeded the sum of $250,000 after deductingsheriff’s commission, expenses and Port of Singapore Authority port duesshould be paid into court.

4 On 1 July 1997, the Hurst was sold for $1.9m. After the sale, the MPAraised its bill of $433,755 for port dues for the period 2 March 1997 to1 July 1997. Port dues for the period 25 December 1996 to 1 March 1997amounting to $88,476.50 had been paid by the owner’s previous agent. Thesum of $433,755 was derived in the following manner:

(a) For the period 2 March to 14 March 1997, the MPA claimedport dues based on the rates prescribed in para 1(b) of Item 1 ofSection I of the Schedule to the Port of Singapore Authority (Scales ofDues and Rates) Notification 1994 (Cap 236) as amended by para 3 ofthe Port of Singapore Authority (Scales of Dues and Rates)(Amendment) Notification 1995 (Cap 236) (“the 1994 PSANotification”).

(b) For the period 15 March to 8 April 1997, the port dues were alsobased on the rates prescribed in para 1(b) of Item 1 of Section I of theSchedule to the 1994 PSA Notification, but capped by the MPA as amatter of policy at the rate of $30 per 100GT or part thereof per 24hours or part thereof. It was then part of the MPA’s policy to cap therate of port dues charged for arrested vessels at the rate applicable atthe date of arrest if the vessel had been in port for more than 72 hours(“the arrest policy”). As a result of applying the arrest policy and




capping the port dues rate, the MPA waived port dues amounting to$26,775.

(c) For the period 9 April to 1 July 1997, the MPA claimed portdues based on para 3(1)(b) of the Schedule to the Maritime and PortAuthority of Singapore (Scales of Dues, Rates and General Fees)Notification 1997 (Cap 170A) (“the 1997 MPA Notification”). Underpara 3(1)(b) of the Schedule to the 1997 MPA Notification, the rate ofport dues payable was the rate applicable under para 1(a) of theSchedule to the 1997 MPA Notification, which was $30 per 100GT orpart thereof per 24 hours or part thereof.

5 The appellants are a company by the name of Planmarine AG. On17 December 1996, a mortgage was created in the Bahamas in favour of theappellants pursuant to a guarantee executed by the owners of the Hurst. Itwas only towards the end of May 1997 that the appellants learned that theHurst had been arrested in Singapore and ordered to be sold. On6 June 1997, the appellants as mortgagees made a demand for payment ofthe mortgage debt of US$67,001,156.63 from the owners of the Hurst (“themortgage claim”).

6 On 30 July 1997, the appellants as interveners in the admiraltyproceedings, filed an application by way of Summons in Chambers No 5791of 1997 for the following orders:

(a) A direction that the sheriff not pay out from the proceeds ofsale, all or any part of the outstanding port dues charged by theMPA.

(b) Paragraph 2 of the sale order be varied to exclude port dues asan item of sheriff’s expenses.

(c) A declaration that the claim for port dues by the MPA does nothave priority over other claims against the Hurst and herproceeds of sale.

The respondents are the MPA. The MPA was established on2 February 1996 under the Maritime and Port Authority of Singapore Act(Cap 170A) (“MPA Act”) as a statutory board while the Port of SingaporeAuthority (“PSA”) was still in existence. The MPA was established to takeover the powers and duties of the PSA to control and regulate the port ofSingapore. The PSA was dissolved on 1 October 1997 when the Port ofSingapore Authority (Dissolution) Act 1997 (No 6 of 1997) was broughtinto operation. Following the appellants’ application by way of summons inchambers, the MPA applied to intervene to resist the appellants’application.

7 By the time the application was heard on 8 August 1997, the onlyparties interested in the balance of sale proceeds were the first and secondinterveners, Planmarine AG and the MPA. The other interested parties



such as the crew had been paid off and Sinwa and other caveators whoseclaims had a low priority ranking had given up pursuit.

8 In separate proceedings commenced subsequently in respect of themortgage claim, the appellants obtained judgment in default against theowners of the Hurst for the sum of US$26m with interest and costs. By afurther order of court made on 27 March 1997, the sum of $989,137.67 wasordered to be paid out to the appellants from the sale proceeds in partialsatisfaction of the default judgment.

Decision of the trial judge

9 The trial judge dismissed the appellants’ application. He was of theview that para 1(b) of Item 1 of Section I of the Schedule to the 1994 PSANotification applied to any vessel in port, whether under arrest orotherwise, and that port dues were payable by the Hurst under thisprovision from 2 March 1997 to 8 April 1997. He was also of the view thatthe phrase “where a vessel is arrested under the provision of any writtenlaw” in para 3(1) of the Schedule to the 1997 MPA Notification includedany vessel which had at that time been arrested and that from 9 April 1997onwards port dues were payable by the Hurst under para 3(1) of theSchedule to the 1997 MPA Notification.

10 On the issue of priority, the trial judge held that the MPA’s prioritywas not dependent on the exercise of their power to arrest a vessel unders 29 of the MPA Act. This was because the MPA was not seeking to arrestthe vessel and was not claiming as a statutory lienee but on the basis of theorder of court of 11 April 1997. The trial judge observed that the portauthority has the ultimate discretion in deciding whether a vessel may enterand use the waters within its jurisdiction and was of the view that thatpower alone was sufficient reason why port dues should rank ahead of otherclaims.

The appeal

11 There were three issues for consideration in the appeal. Firstly,whether port dues are payable to the MPA under the 1994 PSA notificationswhile the Hurst was under arrest from 14 March to 8 April 1997. Secondly,whether port dues are payable to the MPA under the 1997 MPANotification while the Hurst was under arrest from 9 April 1997 to1 July 1997. Thirdly, whether the MPA’s claim for port dues should betreated as part of the sheriff’s expenses and be paid out as such from the saleproceeds to the MPA in priority to all other claims.

Whether port dues are payable under the 1994 PSA Notification

12 The first issue was whether port dues are payable to the MPA underthe 1994 PSA Notification. The main submission of Miss Belinda Ang,counsel for the appellants, was that port dues are in the nature of a tax and

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that in the absence of any prescribed port dues for arrested vessels in the1994 PSA Notification, the MPA is not entitled to claim for port dues fromthe Hurst.

13 We were however unable to agree that the 1994 PSA Notification doesnot prescribe port dues for arrested vessels. As was pointed out by MrSteven Chong, counsel for the respondents, the express wording of para 1 ofItem 1 of Section I of the Schedule to the 1994 PSA Notification makes itclear that dues are “payable in respect of vessels in the port” regardless ofwhether they are under arrest or not. The statutory scheme of the 1994 PSANotification is such that all vessels “in port” must pay port dues asprescribed in para 1(b) unless a vessel is exempted from port dues underpara 1(a) as a vessel belonging to the government or unless the vessel isspecifically required to pay different rates. Since the Hurst was “in port” anddid not fall into any of the exceptions, port dues would be payable asprescribed in para 1(b) of Item 1 of Section I of the Schedule to the 1994PSA Notification.

14 In support of her submission, Miss Ang argued that para 1(b) of Item1 of Section I of the Schedule to the 1994 PSA Notification is not applicableto arrested vessels because some previous PSA Notifications have madespecific provision for port dues for arrested vessels whereas no such specificprovision appears in the 1994 PSA Notification. However, while it is truethat there was specific provision for port dues for arrested vessels in thePSA (Scale of Dues and Rates) Notifications 1985, 1987 and 1990, thereason for the specific provision was to differentiate between vessels laid upin port with the approval of the Port Master, as against vessels which wereunder arrest or laid up in port without the approval of the Port Master, andto provide for a higher rate of port dues in respect of the latter. For example,Item 1(c)(i) of Section I of the Schedule to the Port of Singapore Authority(Scale of Dues and Rates) Notification 1990 (Cap 236) provides that the ratefor vessels of “75 GRT or more laid up in the port and occupying ananchorage or berth with the approval of the Port Master” is “$14 for every100 GRT …” whereas Item 1(c)(ii) of the same Notification provides thatthe rate for every vessel of “75 GRT or more laid up in the port without theapproval of the Port Master or for every arrested vessel of 75 GRT or more”is “$20 for every 100 GRT”.

15 Miss Ang’s second submission on this issue was that an arrested vesseldoes not make “use” of the port and as such, no port dues are payable unders 27(7) of the MPA Act. While s 27(7) of the MPA Act states that the ownerof every vessel which uses the port must pay port dues, s 27(7) of the MPAAct also states that the owner of every vessel which enters or calls at the portmust also pay port dues. In other words, liability to pay port dues arisesfrom the moment a vessel enters the port or calls at Singapore, and notmerely only when it uses the port. In any event, an arrested vessel does“use” the port, in the enjoyment of shelter provided by the port from the



elements and the access to port services for the crew. We were therefore ofthe view that port dues are payable to the MPA under the 1994 PSANotification for the period while the Hurst was under arrest from 14 Marchto 8 April 1997.

Whether port dues are payable under the 1997 MPA Notification

16 The second issue was whether port dues are payable under the 1997MPA Notification for the period 9 April to 1 July 1997. Paragraph 3(1) ofPart I of the Schedule to the 1997 Notification (“para 3(1)”) states:

Notwithstanding paragraphs 1 and 2, where a vessel is arrested underthe provisions of any written law, the port dues payable by the owner,agent or master of the vessel are as follows:

Miss Ang’s submission was that on the proper construction of the aboveprovision, port dues are not payable by the Hurst. She argued that the plainand ordinary meaning of the phrase “where a vessel is arrested” in para 3(1)is that it excludes vessels which were arrested prior to the coming into forceof the 1997 MPA Notification.

17 Mr Chong’s reply was two-fold. Firstly, he argued that the use of theword “where” clearly denotes a continuing state of affairs and makespara 3(1) apt to include vessels which were arrested before the coming intooperation of the 1997 MPA Notification. Secondly, he relied on the Houseof Lords decision in Commissioners of Customs and Excise v ThornElectrical Industries Ltd [1975] 3 All ER 881. In that case, the House ofLords held that the words “where goods are supplied” in s 7(8) of theUnited Kingdom’s Finance Act 1972 applied to supply of goodscommencing before the coming into operation of that Act and continuinguntil that Act came into force.

18 In our opinion, the House of Lords’ decision in Commissioners ofCustoms and Excise does not support the respondents’ submission. Whilethe end result of that decision does support the respondents’ constructionof para 3(1) as including a continuing state of arrest, the reasoning of

Period of stay in the portCharge

Charge

(a) for the first 720 hoursthat the vessel is in theport

The rates applicable to thevessel under paragraph 1 or 2,as the case may be; and

(b) for any period afterthe first 720 hours thatthe vessel is in the port

$10 per 100 GT or part thereoffor each period of 24 hours orpart there thereof or the rateapplicable to the vessel at thetime of arrest under paragraph1 or 2, as the case may be,whichever rate is the higher.




Lord Simon reveals that the primary consideration in arriving at that resultwas not the grammatical or natural construction of the phrase “wheregoods are supplied”, but the purpose of s 7(8) of the Finance Act 1972. Theappellants in that case argued that the words “goods are supplied” meant“goods are delivered” whereas the Crown argued that the phrase extendedto mean “goods are being supplied”. His Lordship said at 883B of thedecision:

Grammatically and as a matter of ordinary English usage the respectiveglosses of the appellants and the respondents seem to me to be equallynatural. It is therefore useful to examine the purpose of s 7(8).

His Lordship went on to hold that the Crown’s construction was moreconsistent with the purpose of s 7(8) of the Finance Act 1972.

19 In the same vein, the two constructions of the phrase “where a ship isarrested” put forward by the appellants and the respondents are, in ourview, equally natural in terms of grammar and usage. The key to the properconstruction of para 3(1) lies not in the way the phrase was crafted, but inthe purpose behind it.

20 It was argued by Miss Ang that the wording of para 3(1) is clear andunambiguous and that the court should therefore not examine the purposeof this provision. She relied on the plain meaning rule laid down byTindal CJ in The Sussex Peerage (1844) 11 Cl & Fin 85; 8 ER 1034 where hisLordship said (8 ER 1034) at 1057:

If the words of the statute are in themselves precise and unambiguous,then no more can be necessary than to expound those words in theirnatural and ordinary sense. The words themselves alone do, in suchcase, best declare the intention of the lawgiver. But if any doubt arisesfrom the terms employed by the legislature, it has always been held asafe means of collecting the intention to call in aid the ground andcause of making the statute, and to have recourse to the preamble,which, according to Chief Justice Dyer (Stowel v Lord Zouch, Plowden,369) is ‘a key to open the minds of the makers of the Act, and themischiefs which they intended to redress’.

She also referred us to the decision of the High Court in Re How WilliamGlen [1994] 2 SLR(R) 357, which applied the rule laid down in The SussexPeerage. In that case, G P Selvam J said at [16]:

The principle stated by Tindal CJ holds today as it did when he statedit. I am also mindful of s 9A of the Interpretation Act (Cap 1)introduced by Act 11 of 1993. That section does not in any way affectthe rule stated by Tindal CJ in the Sussex Peerage claim [case].Accordingly, where the words of the statute are plain and free fromambiguity the courts cannot call in the various extrinsic materialenumerated in that section. Further, the rule of purposive approach ininterpreting a statute comes in only where the words of the statute are



ambiguous. See Fothergill v Monarch Airlines Ltd [1981] AC 251 at272.

21 Mr Chong on the other hand, highlighted the decision inConstitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803. In delivering theopinion of the Constitution of the Republic of Singapore Tribunal, YongPung How CJ said at [44]:

It is well established and not disputed by either parties that a purposiveinterpretation should be adopted in interpreting the Constitution togive effect to the intent and will of Parliament. The principle to beapplied is that the words of the Act are to be read in their entire contextand in their grammatical and ordinary sense, harmoniously with thescheme of the Act, the object of the Act and the intention ofParliament: EA Driedger, Construction of Statutes (2nd Ed, 1983) p 87.

The learned Chief Justice further said at [47] to [48]:

In Mills v Meeking (1990) 169 CLR 214, Dawson J went further. Indiscussing s 35 of the Interpretation of Legislation Act 1984 of Victoria[which corresponds with s 9A] he said:

… the approach required by s 35 needs no ambiguity orinconsistency; it allows a court to consider the purposes of anAct in determining whether there is more than one possibleconstruction. Reference to the purposes may reveal that thedraftsman has inadvertently overlooked something which hewould have dealt with had his attention been drawn to it and if itis possible as a matter of construction to repair the defect, thenthis must be done.

In the circumstances, it would be wrong to adopt a literal approach assuggested by counsel for the Presidency, even if Art 22H(1) was notambiguous or inconsistent, if the literal approach did not give effect tothe will and intent of Parliament.

The decision of the Constitution of the Republic of Singapore Tribunal inConstitutional Reference No 1 of 1995 was subsequently followed by thiscourt in a judgment delivered by L P Thean JA in L & W Holdings Pte Ltd vMCST Plan No 1601 [1997] 3 SLR(R) 30.

22 The decisions in The Sussex Peerage and Re How William Glen werenot referred to the court in Constitutional Reference No 1 of 1995 and L &W Holdings Pte Ltd. Nevertheless, in our judgment, The Sussex Peeragemust be read subject to s 9A of the Interpretation Act, and with the greatestrespect to the learned judge in Re How William Glen, in so far as theposition on whether a purposive approach to statutory interpretation isapplicable even where a provision is not ambiguous or inconsistent isconcerned, that case must be taken to have been overruled by the decisionsin Constitutional Reference No 1 of 1995 and L & W Holdings Pte Ltd. Thereason for the court’s decision in those latter cases is evident from thewording of s 9A of the Interpretation Act (Cap 1), which provides that:




(1) In the interpretation of a provision of a written law, aninterpretation that would promote the purpose or object underlyingthe written law (whether that purpose or object is expressly stated inthe written law or not) shall be preferred to an interpretation thatwould not promote that purpose or object.

(2) Subject to subsection (4), in the interpretation of a provision of awritten law, if any material not forming part of the written law iscapable of assisting in the ascertainment of the meaning of theprovision, consideration may be given to that material —

(a) to confirm that the meaning of the provision is theordinary meaning conveyed by the text of the provision takinginto account its context in the written law and the purpose orobject underlying the written; or

(b) to ascertain the meaning of the provision when —

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of theprovision taking into account its context in the writtenlaw and the purpose or object underlying the written lawleads to a result that is manifestly absurd or unreasonable.

…

(4) In determining whether consideration should be given to anymaterial in accordance with subsection (2), or in determining theweight to be given to any such material, regard shall be had, in additionto any other relevant matters, to —

(a) the desirability of persons being able to rely on theordinary meaning conveyed by the text of the provision takinginto account its context in the written law and the purpose orobject underlying the written law; and

(b) the need to avoid prolonging legal or other proceedingswithout compensating advantage.

Section 9A(1) of the Interpretation Act sets out a clear direction that in theinterpretation of a provision of a written law, the court should take intoconsideration the purpose of a provision, and to adopt an interpretationwhich promotes the purpose of a provision as against one that would not.Furthermore, s 9A(2)(a) of the Interpretation Act expressly allows the courtto take into consideration materials such as parliamentary debates toconfirm that the meaning of the provision is the ordinary meaningconveyed by the text taking into account the purpose underlying the writtenlaw. Following the clear wording of s 9A of the Interpretation Act, there isno blanket rule that a provision must be ambiguous or inconsistent before apurposive approach to statutory interpretation can be taken. The concernsaddressed by the rule in The Sussex Peerage ([20] supra) has been dealt within the scheme of s 9A of the Interpretation Act under sub-s (4) as part of the



matters which the court shall have regard to in determining whetherconsideration should be given to any material in accordance with sub-s (2).

23 In any event, since both constructions offered by the appellants andthe respondents are equally natural, para 3(1) cannot be said to be free fromambiguity. In such a situation, s 9A(2)(b) of the Interpretation Actexpressly allows for reference to be made to extrinsic materials to ascertainthe meaning of the provision, and s 9A(3) permits the court to have regardto the speech made by the Minister in Parliament in moving the secondreading of the bill.

24 In the Second Reading of the Maritime and Port Authority ofSingapore Bill, the Minister for Communications, Mr Mah Bow Tan said:

To stay ahead, the Government has decided to corporatise the Port ofSingapore Authority in the next few years to better enable PSA to facethe challenges which it will meet in the next century.

… Since it would not be correct for a private company to havestatutory powers, such as control over navigational safety in the port,the Government has decided to transfer PSA’s powers to MPA evenwhile PSA remains a statutory board.

… As soon as MPA is set up, it will also take over statutory functionsfrom PSA, such as ensuring navigational safety in our port waters anddrawing up the port masterplan.

Part of the process of transfer was for the MPA to take over the PSA’sstatutory function of collecting port dues. This is supported by the fact thaton the same day that the MPA was created, that is on 2 February 1996, s 53of the PSA Act was repealed and replaced with s 27(7) of the MPA Act inalmost identical terms, allowing the MPA to take over the PSA’s statutoryfunction of collecting port dues. Furthermore, para 1(b) of Item 1 ofSection I of the Schedule to the 1994 PSA Notification was substituted withpara 1(a) of the Schedule to the 1997 MPA Notification in almost identicalterms and with identical rates for port dues. In order for there to be asmooth transfer of the function of collecting port dues from the PSA to theMPA, it must clearly have been the intention of Parliament that port duescould be claimed by the MPA for ships which were arrested prior to thecoming into force of the 1997 MPA Notification. We were therefore of theopinion that the phrase “where a vessel is arrested” must be construed asincluding a continuing state of arrest.

25 Following from the above purposive approach, we were similarlyunable to agree with Miss Ang’s other argument in support of theappellants’ construction of para 3(1). She highlighted that para 3(1)(b) ofthe Schedule to the 1997 MPA Notification provides that the applicable ratefor arrested vessels in port for more than 720 hours is the “rate applicable tothe vessel at the time of the arrest under paragraph 1 or 2”, and that at thetime of arrest of the Hurst on 14 March 1998, neither para 1 or 2 were in




operation. She therefore argued that since at the time of the arrest of theHurst there was no applicable rate for port dues, para 3(1) cannot apply tothe Hurst. This argument would be right if the phrase “at the time of arrest”refers solely to the date of initial arrest of the vessel. The phrase is howeverequally suited to mean a continuing state of arrest. In other words,para 3(1)(b) could also refer to a vessel which was already under arrest. Inview of the fact that the purpose of the 1997 MPA Notification is to allowthe MPA to take over the PSA’s function of collecting port dues, we were ofthe view on a proper construction, the phrase extends to include acontinuing state of arrest.

26 The final argument raised by Miss Ang on this issue was that of thelegal presumption against retrospective application. We were unable toaccept this argument. The presumption is not applicable as para 3(1) doesnot operate retrospectively. In delivering the judgment of the Privy Councilin Yew Bon Tew v Kenderaan Bas Mara [1983] AC 553; [1983] 1 MLJ 1,Lord Brightman said at [1983] AC 553, 558F-G; [1983] 1 MLJ 1, 2:

Apart from the provisions of the interpretation statutes, there is atcommon law a prima facie rule of construction that a statute shouldnot be interpreted retrospectively so as to impair an existing right orobligation unless that result is unavoidable on the language used. Astatute is retrospective if it takes away or impairs a vested rightacquired under existing laws, or creates a new obligation, or imposes anew duty, or attaches a new disability, in regard to events already past.

Paragraph 3(1) does not impose any obligation or liability retrospectively. Itmerely allows events which have occurred before the coming into force ofthe statute to be taken into account in determining the quantum ofpayments to be made under the statute after the statute has come into force.As was observed by Staughton LJ in Secretary of State for Social Security vTunnicliffe [1991] 2 All ER 712 at 723H:

It is well established that the presumption against retrospectivelegislation does not necessarily apply to an enactment merely because‘a part of the requisites for its action is drawn from time antecedent toits passing’ (see R v Inhabitants of St Mary, Whitechapel (1848) 12 QB120 at 127, 116 ER 811 at 814 per Lord Denman CJ).

We were therefore of the view that port dues are payable to the MPA underthe 1997 MPA Notification for the period while the Hurst was under arrestfrom 9 April to 1 July 1997.

Whether the MPA’s claim should be treated as sheriff’s expenses

27 The third issue was whether the MPA’s claim should be treated assheriff’s expenses to be recovered from the sale proceeds in priority to allother claims. It is an issue which has been settled in The Felicie [1991] 2SLR(R) 550, where it was held that the practice of the sheriff treating thePSA’s port dues as part of his expenses was an established and well founded



practice. In coming to its decision, the court relied on the decisions ofBrandon J (as he then was) in The Queen of the South [1968] P 449; [1968]1 All ER 1163 and Sheen J in The Freightline One [1986] 1 Lloyd’s Rep 266.We were asked by Miss Ang to overrule the practice endorsed in The Felicie,on the basis that the practice was without legal foundation and inequitable.

28 Miss Ang began her submission on this issue by referring us to s 29 ofthe MPA Act. It provides that:

(1) If the master or owner of any vessel in respect of which any rates,charges, dues, fees, damages or penalties or other sums are payableunder this Act or the regulations refuses or neglects to pay the same orany part thereof on demand, the Authority may, in addition to anyother remedy which it may be entitled to use, distrain or arrest of itsown authority the vessel and the bunkers, tackle, apparel or furniturebelonging thereto or any part thereof, and detain the same until theamount so due is paid.

She submitted that in order for the MPA to have priority in the proceeds ofsale to reimburse itself for the port dues owed by the shipowner, the MPAmust exercise their right under s 29 of the MPA Act and make a demand forthe payment of the port dues and distrain or arrest the vessel after the issueof the demand. It is only when this is done that a statutory possessory lienarises in favour of the MPA. Without it, the MPA has no statutorypossessory lien to be transferred to the proceeds of sale and the MPAtherefore has no legal right to the proceeds of sale in the hands of thesheriff.

29 In support of her submission, Miss Ang referred us to the case of TheCharger [1966] 3 All ER 117; [1966] 1 Lloyd’s Rep 670, a decision ofKarminski J. However, as was pointed out by Mr Chong, the harbour boardin that case lost their priority, not because of their failure to exercise theirstatutory right, but because by commencing admiralty proceedings andobtaining default judgment, the harbour board had made an election not torely on their statutory right. They had instead elected to enforce their claimby means of an ordinary admiralty action in rem. The Charger thereforedoes not support the appellants’ contention that the MPA must exercisetheir statutory right under s 29 of the MPA Act before they can claimpriority in the proceeds of sale.

30 In our opinion, the argument that the MPA must exercise theirstatutory right of detention before they can claim priority proceeds from amisconception of the means available to the MPA to recover unpaid portdues. There are three ways by which the MPA can recover port dues from avessel which is already under arrest.

The first way is for the MPA to recover the port dues as a simple contractdebt by way of civil proceedings against the owner of the vessel. This isprovided for by s 27(11) of the MPA Act. A second way in which the MPA




can seek to recover port dues is for them to exercise their power unders 29(1) of the MPA Act to distrain or arrest the vessel for non-payment ofdues. Subsections (2) and (3) further provide that if any part of the duesremain unpaid for 14 days after the arrest, the MPA may sell the vessel andrecover the unpaid port dues from the sale proceeds. Such a statutory rightof detention has been described by the courts in The Countess [1923] AC345 and The Queen of the South [1968] 1 ALL ER 1163 as a statutorypossessory lien. Where the MPA is seeking to recover port dues by thismanner, they would clearly be unable to proceed unless they had first madea demand, and subsequently distrained or arrested the vessel after the issueof the demand.

31 A third way for the MPA to recover port dues is for them to persuadethe court that port dues should be treated as part of the sheriff’s expenses inthe arrest and sale of the vessel, and to recover the port dues from theproceeds of the court’s sale of the vessel. In The Queen of the SouthBrandon J said at [1968] P 449, 464; 1 All ER 1163, 1173:

Recent decisions of this court show that, where it is for the benefit of allthose interested in a ship that a marshal should incur expenditure onher in order to enable him to sell her to advantage, the court mayauthorise him to incur such expenditure (see The Parita; The Westport(No 2), British Mexican Petroleum Co Ltd v M/S or Vessel Westport).

This principle enunciated in The Queen of the South that the court mayauthorise the marshal to incur expenditure which was for the benefit of allthose interested in the ship was subsequently adopted and reformulated bythe Court of Appeal in Keppel Corp Ltd v Chemical Bank [1994] 1 SLR(R)54 at [26] in the following manner:

In our judgment, too, the category of ‘sheriff’s expenses’ is not a closedcategory and can be enlarged where, in the opinion of the court, it is anecessary and proper expense to be incurred by the sheriff in carryingout his duties in connection with the arrest, detention, appraisementand sale and for the preservation and good management of the res. See,for example, The Fairport ([7] supra) where the court authorised thepayment of the classification society’s fees as part of the ‘marshal’s[sheriff’s] expenses’ so that The Fairport could be sold as a classifiedvessel and thus obtain a higher price.

Therefore, where an expenditure is regarded by the court as a necessary andproper expense to be incurred by the sheriff in carrying out his duties inconnection with the arrest, detention, appraisement and sale and for thepreservation and good management of the res, the court may authorise thepayment as part of the sheriff’s expenses.

32 The reason why port dues are regarded by the court as a “necessaryand proper” expense of the sheriff in the carrying out of his duties is that therecognition of port dues as part of the sheriff’s expenses dissuades the MPAfrom exercising its statutory right of detention under s 29 of the MPA Act,



thereby allowing the court to sell the arrested vessel free fromencumbrances. This is because so long as the MPA has such a statutoryright of detention, it can exercise such a right against the vessel even whileshe is under arrest, thereby preventing the court from selling the vessel freefrom encumbrances. This was the reasoning of Brandon J (as he then was)in The Queen of the South where he said at [1968] P 449, 465; [1968] 1 AllER 1163, 1174:

… it would be for the benefit of all those interested in The Queen of theSouth that the interveners’ claim for rates should be paid off, so that themarshal can sell the vessel free of the interveners’ rights of detentionand sale, whether already exercised or capable of being exercisedhereafter. If the marshal cannot sell the ship free of such rights, he maybe unable either to find a purchaser at all, or at any rate to find onewilling to pay a proper price.

33 This third manner of recovery of port dues by the MPA, which is thepractice endorsed in The Felicie, has its legal foundation in the court’sdiscretion to enlarge the category of the sheriff’s expenses. Where the MPAseeks recovery by this manner, the claim for port dues comes under thename of the sheriff, and not under the MPA’s name. The MPA’sentitlement for port dues to be regarded as part of the sheriff’s expenses isdependent upon such an expense being regarded by the court as a“necessary and proper” expense in the carrying out of the sheriff’s duties. Itis not dependent on the existence of a statutory possessory lien which canbe transferred to the proceeds of sale. We were therefore unable to agreewith Miss Ang’s argument that because the MPA did not exercise theirstatutory right under s 29(1) of the MPA, they did not have a statutorypossessory lien to be transferred to the proceeds of sale and hence did nothave a right of claim, simply because the MPA’s right of recovery was notdependent on any transfer of statutory possessory lien, but on port duesbeing regarded as a necessary expense incurred by the sheriff in order to sellthe vessel free from encumbrances.

34 A final point to be addressed regarding the issue of whether thepractice endorsed in The Felicie is without legal foundation is the differenceof practice in England and Singapore. Our attention was drawn to the factthat in The Queen of the South port dues were treated as part of themarshal’s expenses on the basis of a written undertaking from the portauthority that they would not exercise their right of detention or sale inrespect of the rates concerned. In The Freightline One ([27] supra), therewas also a written undertaking to the effect that the port authority wouldnot exercise their right of detention of sale in respect of the outstandingcharges. In contrast, Singapore practice does not concern itself with anysuch written undertaking. In our view, this merely reflects a difference ofpractice. While the MPA’s agreement not to exercise their right of statutorydetention is no doubt important, it is immaterial whether this agreement isevidenced in the form of a written undertaking or is relied on by




convention. The absence of a written undertaking does not affect the morefundamental point of this appeal, which is that the practice endorsed in TheFelicie is legally founded, being based on the discretion of the court toinclude port dues as part of the sheriff’s expenses on the basis that it is a“necessary and proper” expense of the sheriff in the carrying out of hisduties.

35 The second prong to Miss Ang’s assault on the practice endorsed inThe Felicie is the argument that the practice in The Felicie is inequitable. Sheargued firstly, that the practice is inequitable because where the saleproceeds are insufficient, port dues can be claimed from the arrestingsolicitors under their undertaking given under O 70 r 9(3) of the Rules ofCourt.

36 We were unable to see how the practice leads to injustice to thesolicitor of the arresting party. There is always the risk in every arrest of theproceeds being insufficient to pay for sheriff’s expenses so that the arrestingsolicitor becomes liable under the undertaking. This risk is caused not justfrom the inclusion of port dues as part of the sheriff’s expenses, but byfactors which range from poor market, damage to the vessel while underarrest, to escalation in costs for items under the sheriff’s expenses. This riskis inherent in every arrest and every arresting solicitor has the opportunityto evaluate the risks involved before making the arrest. Where the arrestingsolicitor knows in advance that port dues will be treated as sheriff’sexpenses, there is no danger of any unanticipated risk. In any event, therewas in this case no danger that the arresting solicitor would have to payfrom the undertaking. Apart from the port dues, all the sheriff’s expenseshad been paid up before the remainder of the proceeds of sale were paidinto court on 8 August 1997. The sole issue was whether the MPA wasentitled to its bill of $433,755 for unpaid port dues, or whether themortgagee Planmarine AG would get it.

37 Miss Ang’s second argument was that there was no equity whichrequired port dues to be treated as part of the sheriff’s expenses and that thesole beneficiary of the practice was the MPA. We were unable to agree withthis. The practice allows the sheriff to sell arrested vessels free fromencumbrances and thus fetch the best price from the sale while at the sametime ensuring that port dues are paid. Without such a practice, the MPAmay be compelled to exercise their statutory right of detention in every casewhere a vessel is not released from arrest in order to obtain payment of portdues. This will result in delay of the sale of the vessel and lead to furtherdeterioration of the vessel and further escalation of costs of preserving thevessel. Far from being solely for the benefit of the MPA, the practice isbeneficial to all parties interested in the vessel. In considering the equitiesfor this case in particular, an additional factor in favour of the MPA was thefact that the MPA had refrained from exercising their statutory right of



detention against the Hurst in reliance on the practice endorsed in TheFelicie.

38 The third point raised by Miss Ang regarding the inequity of thepractice, was the paramount ranking of port dues amongst other items ofthe sheriff’s expenses, a point which was not addressed in the submissionsof Mr Chong. Miss Ang argued that the practice was inequitable because itimproved the MPA’s position over what they would have had if they hadproceeded on the basis of the statutory right of detention under s 29 of theMPA Act. If the MPA were to sell the ship under s 29 of the MPA Act, theexpenses of the sale would be deducted first from the sale proceeds, leavinga reduced fund available to the MPA for payment of outstanding port dues.Following the practice of The Felicie, the MPA’s position was improvedsince port dues would be paid out before the deduction of expensesincurred in the sale. We were of the view that this issue of how the MPA’sclaim for port dues ranked in comparison to other items of the sheriff’sexpenses was not a matter of concern to the appellants. Whether port duesranked paramount among other items in the sheriff’s expenses or whether itranked last, the appellants’ claim as mortgagee would have ranked belowthe MPA’s claim for port dues.

Conclusion

39 For the above reasons, we held that on a proper construction of the1994 PSA Notification and the 1997 MPA Notification, port dues arepayable to the MPA for the period while the Hurst was under arrest from2 March to 1 July 1997. For the reasons given above, we were also of theview that the practice endorsed in The Felicie should be upheld. The thrustof Miss Ang’s argument against the The Felicie was that it has no legalfoundation and was inequitable. However, the practice endorsed in TheFelicie is legally founded, being based on the courts’ discretion to includenecessary expenses as part of the sheriff’s expenses, and is equitable to allparties in that it allows the sheriff to sell the arrested vessel free fromencumbrances so as to obtain the highest price for the vessel. The appealwas therefore dismissed.

Headnoted by Agnes Tan.


planmarine ag v mpa [1999] sgca 16

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