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Planmarine AG
v
Maritime and Port Authority of Singapore
[1999] SGCA 16
Court of Appeal Civil Appeal No 166 of 1998
Yong Pung How CJ, M Karthigesu JA and Lai Kew Chai J
26 January; 10 March 1999
Admiralty and Shipping Practice and procedure of action in rem Sheriffs
expenses Whether sheriff can treat port dues as part of his expenses Whether
court 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 be
taken Ascertainment of meaning gleaned from Parliamentary speech Section 9A
Interpretation Act (Cap 1, 1997 Rev Ed)
Facts
The vessel Hurst arrived in Singapore in 1996 and remained in port until her
arrest on 14 March 1997 by Sinwa (Singapore) Pte Ltd (Sinwa), a creditor of
the owners of the Hurst. Sinwa commenced admiralty proceedings and obtained
a default judgment and a courts order to sell the Hurst. Paragraph 2 of the order
provided that if the sale proceeds exceeded the sum of $250,000 after deducting
sheriffs commission, expenses and port dues, such excess should be paid into
court.
The Hurst was mortgaged to the appellant Planmarine AG (Planmarine). On
6 June 1997, Planmarine demanded that the owners of the Hurst settle their
mortgage debt of US$67 million. On 1 July 1997, the Hurst was sold for $1.9m.
The Maritime and Port Authoritys (MPA) port dues for the period
2 March 1997 to 1 July 1997 amounted to $433,755. On 30 July 1997,
Planmarine intervened in the admiralty proceedings and sought, inter alia, that
the sheriff be directed not to pay MPAs port dues from the proceeds of sale and
a declaration that the claim for port dues did not have priority over other claims
against the sale proceeds. MPA resisted Planmarines 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 when
the Hurst was arrested from 14 March to 8 April 1997; second, whether port
dues were payable to MPA under the 1997 MPA Notification; and third, whether
MPAs claim for port dues should be treated as part of the sheriffs expenses and
be paid out from the sale proceeds in priority to other claims.
Planmarines counsel submitted that port dues were like taxes and MPA was not
entitled to claim for port dues if there were no prescribed port dues for arrested
vessels 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 Maritime
and Port Authority of Singapore Act (Cap 170A, 1997 Rev Ed) (MPA Act). She
also argued that the phrase where a vessel was arrested in para 3(1) of the 1997

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MPA Notification, by its plain and ordinary meaning, excluded vessels which
were arrested before such notification came into effect and there should be a
legal presumption against retrospective application. Finally, she requested the
court to overrule the practice in The Felicie [1991] 2 SLR(R) 550 that PSAs port
dues were considered part of the sheriffs expenses. She averred that the practice
was without legal foundation and inequitable.
Held, dismissing the appeal:
(1) The statutory scheme of the 1994 PSA Notification was such that all
vessels in port had to pay port dues prescribed in para 1(b) unless a vessel was
exempted from doing so under para 1(a) as a vessel belonging to the government
or unless it was specifically required to pay different rates. As the Hurst was in
port and did not fall into any of the exceptions, port dues would be payable
under the 1994 PSA Notification: at [13].
(2) Section 27(7) of the MPA Act required that owners of vessels pay port
dues 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 access
to 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 a
purposive approach to its statutory interpretation. Paragraph 3(1) of the 1997
MPA Notification had to be construed by the purpose behind it and not in the
way the phrase was crafted. The purpose of the 1997 MPA Notification was to
allow the MPA to take over the PSAs function of collecting port dues and the
phrase in para 3(1) extended to include a continuing state of arrest.
Paragraph 3(1) also did not impose any liability retrospectively as events which
occurred before the statute came into effect would affect the quantum of
payments 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 the
courts discretion to include port dues as part of the sheriffs expenses on the
basis that port dues was a necessary and proper expense of the sheriff when he
carried out his duty. The practice was equitable to all parties in that it allowed
the sheriff to sell the arrested vessel free from encumbrances. Without such a
practice, MPA might be compelled to exercise its statutory right of detention
under s 29 of the MPA Act in every case where a vessel was not released from
arrest so as to obtain payment of port dues. This would result in delay in the sale
of the vessel and lead to further deterioration of the vessel and escalation in the
costs of preserving the vessel: at [32], [34], [37] and [39].
(5) It was not unjust to make the arresting solicitor liable for port dues
whenever the sale proceeds were insufficient to pay for the sheriffs expenses.
Such risk was inherent in every arrest and every arresting solicitor had the
opportunity to evaluate the risks before making the arrest: at [36].
(6) It did not matter whether port dues ranked paramount or last in the
sheriffs expenses as Planmarines claim as mortgagee would have ranked below
the MPAs claim for port dues: at [38].

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Case(s) referred to
Charger, The [1968] 1 WLR 1707; [1966] 3 All ER 117; [1966] 1 Lloyds 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 Lloyds 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 to
Interpretation 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 3
Port 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] 2
SLR(R) 517.]

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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 dismissing
an application for an order that the sheriff be directed not to pay out any
money from the proceeds of sale of the vessel Hurst towards payment of
port dues charged by the Maritime and Port Authority of Singapore
(MPA). We heard the appeal on 26 January 1999 and dismissed it. We
now 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, who
commenced the admiralty action against the owners of the Hurst for the
recovery 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 sale
order) for the Hurst to be sold. Paragraph 2 of the order for sale provided
that the proceeds of sale, if it exceeded the sum of $250,000 after deducting
sheriffs commission, expenses and Port of Singapore Authority port dues
should be paid into court.
4
On 1 July 1997, the Hurst was sold for $1.9m. After the sale, the MPA
raised its bill of $433,755 for port dues for the period 2 March 1997 to
1 July 1997. Port dues for the period 25 December 1996 to 1 March 1997
amounting to $88,476.50 had been paid by the owners previous agent. The
sum of $433,755 was derived in the following manner:
(a) For the period 2 March to 14 March 1997, the MPA claimed
port dues based on the rates prescribed in para 1(b) of Item 1 of
Section I of the Schedule to the Port of Singapore Authority (Scales of
Dues and Rates) Notification 1994 (Cap 236) as amended by para 3 of
the Port of Singapore Authority (Scales of Dues and Rates)
(Amendment) Notification 1995 (Cap 236) (the 1994 PSA
Notification).
(b) For the period 15 March to 8 April 1997, the port dues were also
based on the rates prescribed in para 1(b) of Item 1 of Section I of the
Schedule to the 1994 PSA Notification, but capped by the MPA as a
matter of policy at the rate of $30 per 100GT or part thereof per 24
hours or part thereof. It was then part of the MPAs policy to cap the
rate of port dues charged for arrested vessels at the rate applicable at
the 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

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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 port
dues based on para 3(1)(b) of the Schedule to the Maritime and Port
Authority of Singapore (Scales of Dues, Rates and General Fees)
Notification 1997 (Cap 170A) (the 1997 MPA Notification). Under
para 3(1)(b) of the Schedule to the 1997 MPA Notification, the rate of
port dues payable was the rate applicable under para 1(a) of the
Schedule to the 1997 MPA Notification, which was $30 per 100GT or
part thereof per 24 hours or part thereof.
5
The appellants are a company by the name of Planmarine AG. On
17 December 1996, a mortgage was created in the Bahamas in favour of the
appellants pursuant to a guarantee executed by the owners of the Hurst. It
was only towards the end of May 1997 that the appellants learned that the
Hurst had been arrested in Singapore and ordered to be sold. On
6 June 1997, the appellants as mortgagees made a demand for payment of
the mortgage debt of US$67,001,156.63 from the owners of the Hurst (the
mortgage claim).
6
On 30 July 1997, the appellants as interveners in the admiralty
proceedings, filed an application by way of Summons in Chambers No 5791
of 1997 for the following orders:
(a)

A direction that the sheriff not pay out from the proceeds of
sale, all or any part of the outstanding port dues charged by the
MPA.

(b)

Paragraph 2 of the sale order be varied to exclude port dues as

an item of sheriffs expenses.

(c)

A declaration that the claim for port dues by the MPA does not
have priority over other claims against the Hurst and her
proceeds of sale.

The respondents are the MPA. The MPA was established on

2 February 1996 under the Maritime and Port Authority of Singapore Act
(Cap 170A) (MPA Act) as a statutory board while the Port of Singapore
Authority (PSA) was still in existence. The MPA was established to take
over the powers and duties of the PSA to control and regulate the port of
Singapore. The PSA was dissolved on 1 October 1997 when the Port of
Singapore Authority (Dissolution) Act 1997 (No 6 of 1997) was brought
into operation. Following the appellants application by way of summons in
chambers, the MPA applied to intervene to resist the appellants
application.
7
By the time the application was heard on 8 August 1997, the only
parties interested in the balance of sale proceeds were the first and second
interveners, Planmarine AG and the MPA. The other interested parties

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such as the crew had been paid off and Sinwa and other caveators whose
claims had a low priority ranking had given up pursuit.
8
In separate proceedings commenced subsequently in respect of the
mortgage claim, the appellants obtained judgment in default against the
owners of the Hurst for the sum of US$26m with interest and costs. By a
further order of court made on 27 March 1997, the sum of $989,137.67 was
ordered to be paid out to the appellants from the sale proceeds in partial
satisfaction of the default judgment.
Decision of the trial judge
9
The trial judge dismissed the appellants application. He was of the
view that para 1(b) of Item 1 of Section I of the Schedule to the 1994 PSA
Notification applied to any vessel in port, whether under arrest or
otherwise, and that port dues were payable by the Hurst under this
provision from 2 March 1997 to 8 April 1997. He was also of the view that
the phrase where a vessel is arrested under the provision of any written
law in para 3(1) of the Schedule to the 1997 MPA Notification included
any vessel which had at that time been arrested and that from 9 April 1997
onwards port dues were payable by the Hurst under para 3(1) of the
Schedule to the 1997 MPA Notification.
10 On the issue of priority, the trial judge held that the MPAs priority
was not dependent on the exercise of their power to arrest a vessel under
s 29 of the MPA Act. This was because the MPA was not seeking to arrest
the vessel and was not claiming as a statutory lienee but on the basis of the
order of court of 11 April 1997. The trial judge observed that the port
authority has the ultimate discretion in deciding whether a vessel may enter
and use the waters within its jurisdiction and was of the view that that
power alone was sufficient reason why port dues should rank ahead of other
claims.
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 notifications
while the Hurst was under arrest from 14 March to 8 April 1997. Secondly,
whether port dues are payable to the MPA under the 1997 MPA
Notification while the Hurst was under arrest from 9 April 1997 to
1 July 1997. Thirdly, whether the MPAs claim for port dues should be
treated as part of the sheriffs expenses and be paid out as such from the sale
proceeds 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 under
the 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 the
1994 PSA Notification, the MPA is not entitled to claim for port dues from
the Hurst.
13 We were however unable to agree that the 1994 PSA Notification does
not prescribe port dues for arrested vessels. As was pointed out by Mr
Steven Chong, counsel for the respondents, the express wording of para 1 of
Item 1 of Section I of the Schedule to the 1994 PSA Notification makes it
clear that dues are payable in respect of vessels in the port regardless of
whether they are under arrest or not. The statutory scheme of the 1994 PSA
Notification is such that all vessels in port must pay port dues as
prescribed in para 1(b) unless a vessel is exempted from port dues under
para 1(a) as a vessel belonging to the government or unless the vessel is
specifically required to pay different rates. Since the Hurst was in port and
did not fall into any of the exceptions, port dues would be payable as
prescribed in para 1(b) of Item 1 of Section I of the Schedule to the 1994
PSA Notification.
14 In support of her submission, Miss Ang argued that para 1(b) of Item
1 of Section I of the Schedule to the 1994 PSA Notification is not applicable
to arrested vessels because some previous PSA Notifications have made
specific provision for port dues for arrested vessels whereas no such specific
provision appears in the 1994 PSA Notification. However, while it is true
that there was specific provision for port dues for arrested vessels in the
PSA (Scale of Dues and Rates) Notifications 1985, 1987 and 1990, the
reason for the specific provision was to differentiate between vessels laid up
in port with the approval of the Port Master, as against vessels which were
under arrest or laid up in port without the approval of the Port Master, and
to 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 rate
for vessels of 75 GRT or more laid up in the port and occupying an
anchorage or berth with the approval of the Port Master is $14 for every
100 GRT whereas Item 1(c)(ii) of the same Notification provides that
the rate for every vessel of 75 GRT or more laid up in the port without the
approval of the Port Master or for every arrested vessel of 75 GRT or more
is $20 for every 100 GRT.
15 Miss Angs second submission on this issue was that an arrested vessel
does not make use of the port and as such, no port dues are payable under
s 27(7) of the MPA Act. While s 27(7) of the MPA Act states that the owner
of every vessel which uses the port must pay port dues, s 27(7) of the MPA
Act also states that the owner of every vessel which enters or calls at the port
must also pay port dues. In other words, liability to pay port dues arises
from the moment a vessel enters the port or calls at Singapore, and not
merely 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

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elements and the access to port services for the crew. We were therefore of
the view that port dues are payable to the MPA under the 1994 PSA
Notification for the period while the Hurst was under arrest from 14 March
to 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 1997
MPA Notification for the period 9 April to 1 July 1997. Paragraph 3(1) of
Part I of the Schedule to the 1997 Notification (para 3(1)) states:
Notwithstanding paragraphs 1 and 2, where a vessel is arrested under
the provisions of any written law, the port dues payable by the owner,
agent or master of the vessel are as follows:
Period of stay in the port
Charge

Charge

(a) for the first 720 hours

that the vessel is in the
port

The rates applicable to the

vessel under paragraph 1 or 2,
as the case may be; and

(b) for any period after

the first 720 hours that
the vessel is in the port

$10 per 100 GT or part thereof

for each period of 24 hours or
part there thereof or the rate
applicable to the vessel at the
time of arrest under paragraph
1 or 2, as the case may be,
whichever rate is the higher.

Miss Angs submission was that on the proper construction of the above
provision, port dues are not payable by the Hurst. She argued that the plain
and 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 force
of the 1997 MPA Notification.
17 Mr Chongs reply was two-fold. Firstly, he argued that the use of the
word where clearly denotes a continuing state of affairs and makes
para 3(1) apt to include vessels which were arrested before the coming into
operation of the 1997 MPA Notification. Secondly, he relied on the House
of Lords decision in Commissioners of Customs and Excise v Thorn
Electrical Industries Ltd [1975] 3 All ER 881. In that case, the House of
Lords held that the words where goods are supplied in s 7(8) of the
United Kingdoms Finance Act 1972 applied to supply of goods
commencing before the coming into operation of that Act and continuing
until that Act came into force.
18 In our opinion, the House of Lords decision in Commissioners of
Customs and Excise does not support the respondents submission. While
the end result of that decision does support the respondents construction
of para 3(1) as including a continuing state of arrest, the reasoning of

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Lord Simon reveals that the primary consideration in arriving at that result
was not the grammatical or natural construction of the phrase where
goods are supplied, but the purpose of s 7(8) of the Finance Act 1972. The
appellants in that case argued that the words goods are supplied meant
goods are delivered whereas the Crown argued that the phrase extended
to mean goods are being supplied. His Lordship said at 883B of the
decision:
Grammatically and as a matter of ordinary English usage the respective
glosses of the appellants and the respondents seem to me to be equally
natural. It is therefore useful to examine the purpose of s 7(8).

His Lordship went on to hold that the Crowns construction was more
consistent 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 is
arrested put forward by the appellants and the respondents are, in our
view, equally natural in terms of grammar and usage. The key to the proper
construction of para 3(1) lies not in the way the phrase was crafted, but in
the purpose behind it.
20 It was argued by Miss Ang that the wording of para 3(1) is clear and
unambiguous and that the court should therefore not examine the purpose
of this provision. She relied on the plain meaning rule laid down by
Tindal CJ in The Sussex Peerage (1844) 11 Cl & Fin 85; 8 ER 1034 where his
Lordship 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 their
natural and ordinary sense. The words themselves alone do, in such
case, best declare the intention of the lawgiver. But if any doubt arises
from the terms employed by the legislature, it has always been held a
safe means of collecting the intention to call in aid the ground and
cause 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 the
mischiefs which they intended to redress.

She also referred us to the decision of the High Court in Re How William
Glen [1994] 2 SLR(R) 357, which applied the rule laid down in The Sussex
Peerage. In that case, G P Selvam J said at [16]:
The principle stated by Tindal CJ holds today as it did when he stated
it. 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 affect
the rule stated by Tindal CJ in the Sussex Peerage claim [case].
Accordingly, where the words of the statute are plain and free from
ambiguity the courts cannot call in the various extrinsic material
enumerated in that section. Further, the rule of purposive approach in
interpreting a statute comes in only where the words of the statute are

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

272.

21 Mr Chong on the other hand, highlighted the decision in

Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803. In delivering the
opinion of the Constitution of the Republic of Singapore Tribunal, Yong
Pung How CJ said at [44]:
It is well established and not disputed by either parties that a purposive
interpretation should be adopted in interpreting the Constitution to
give effect to the intent and will of Parliament. The principle to be
applied is that the words of the Act are to be read in their entire context
and in their grammatical and ordinary sense, harmoniously with the
scheme of the Act, the object of the Act and the intention of
Parliament: 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. In
discussing 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 or
inconsistency; it allows a court to consider the purposes of an
Act in determining whether there is more than one possible
construction. Reference to the purposes may reveal that the
draftsman has inadvertently overlooked something which he
would have dealt with had his attention been drawn to it and if it
is possible as a matter of construction to repair the defect, then
this must be done.
In the circumstances, it would be wrong to adopt a literal approach as
suggested by counsel for the Presidency, even if Art 22H(1) was not
ambiguous or inconsistent, if the literal approach did not give effect to
the will and intent of Parliament.

The decision of the Constitution of the Republic of Singapore Tribunal in

Constitutional Reference No 1 of 1995 was subsequently followed by this
court in a judgment delivered by L P Thean JA in L & W Holdings Pte Ltd v
MCST Plan No 1601 [1997] 3 SLR(R) 30.
22 The decisions in The Sussex Peerage and Re How William Glen were
not referred to the court in Constitutional Reference No 1 of 1995 and L &
W Holdings Pte Ltd. Nevertheless, in our judgment, The Sussex Peerage
must be read subject to s 9A of the Interpretation Act, and with the greatest
respect to the learned judge in Re How William Glen, in so far as the
position on whether a purposive approach to statutory interpretation is
applicable even where a provision is not ambiguous or inconsistent is
concerned, that case must be taken to have been overruled by the decisions
in Constitutional Reference No 1 of 1995 and L & W Holdings Pte Ltd. The
reason for the courts decision in those latter cases is evident from the
wording of s 9A of the Interpretation Act (Cap 1), which provides that:

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(1) In the interpretation of a provision of a written law, an

interpretation that would promote the purpose or object underlying
the written law (whether that purpose or object is expressly stated in
the written law or not) shall be preferred to an interpretation that
would not promote that purpose or object.
(2) Subject to subsection (4), in the interpretation of a provision of a
written law, if any material not forming part of the written law is
capable of assisting in the ascertainment of the meaning of the
provision, consideration may be given to that material
(a) to confirm that the meaning of the provision is the
ordinary meaning conveyed by the text of the provision taking
into account its context in the written law and the purpose or
object 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 the

provision taking into account its context in the written
law and the purpose or object underlying the written law
leads to a result that is manifestly absurd or unreasonable.

(4) In determining whether consideration should be given to any

material in accordance with subsection (2), or in determining the
weight to be given to any such material, regard shall be had, in addition
to any other relevant matters, to
(a) the desirability of persons being able to rely on the
ordinary meaning conveyed by the text of the provision taking
into account its context in the written law and the purpose or
object underlying the written law; and
(b) the need to avoid prolonging legal or other proceedings
without compensating advantage.

Section 9A(1) of the Interpretation Act sets out a clear direction that in the
interpretation of a provision of a written law, the court should take into
consideration the purpose of a provision, and to adopt an interpretation
which promotes the purpose of a provision as against one that would not.
Furthermore, s 9A(2)(a) of the Interpretation Act expressly allows the court
to take into consideration materials such as parliamentary debates to
confirm that the meaning of the provision is the ordinary meaning
conveyed by the text taking into account the purpose underlying the written
law. Following the clear wording of s 9A of the Interpretation Act, there is
no blanket rule that a provision must be ambiguous or inconsistent before a
purposive approach to statutory interpretation can be taken. The concerns
addressed by the rule in The Sussex Peerage ([20] supra) has been dealt with
in the scheme of s 9A of the Interpretation Act under sub-s (4) as part of the

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matters which the court shall have regard to in determining whether

consideration should be given to any material in accordance with sub-s (2).
23 In any event, since both constructions offered by the appellants and
the respondents are equally natural, para 3(1) cannot be said to be free from
ambiguity. In such a situation, s 9A(2)(b) of the Interpretation Act
expressly allows for reference to be made to extrinsic materials to ascertain
the meaning of the provision, and s 9A(3) permits the court to have regard
to the speech made by the Minister in Parliament in moving the second
reading of the bill.
24 In the Second Reading of the Maritime and Port Authority of
Singapore Bill, the Minister for Communications, Mr Mah Bow Tan said:
To stay ahead, the Government has decided to corporatise the Port of
Singapore Authority in the next few years to better enable PSA to face
the challenges which it will meet in the next century.
Since it would not be correct for a private company to have
statutory powers, such as control over navigational safety in the port,
the Government has decided to transfer PSAs powers to MPA even
while PSA remains a statutory board.
As soon as MPA is set up, it will also take over statutory functions
from PSA, such as ensuring navigational safety in our port waters and
drawing up the port masterplan.

Part of the process of transfer was for the MPA to take over the PSAs
statutory function of collecting port dues. This is supported by the fact that
on the same day that the MPA was created, that is on 2 February 1996, s 53
of the PSA Act was repealed and replaced with s 27(7) of the MPA Act in
almost identical terms, allowing the MPA to take over the PSAs statutory
function of collecting port dues. Furthermore, para 1(b) of Item 1 of
Section I of the Schedule to the 1994 PSA Notification was substituted with
para 1(a) of the Schedule to the 1997 MPA Notification in almost identical
terms and with identical rates for port dues. In order for there to be a
smooth transfer of the function of collecting port dues from the PSA to the
MPA, it must clearly have been the intention of Parliament that port dues
could be claimed by the MPA for ships which were arrested prior to the
coming into force of the 1997 MPA Notification. We were therefore of the
opinion that the phrase where a vessel is arrested must be construed as
including a continuing state of arrest.
25 Following from the above purposive approach, we were similarly
unable to agree with Miss Angs other argument in support of the
appellants construction of para 3(1). She highlighted that para 3(1)(b) of
the Schedule to the 1997 MPA Notification provides that the applicable rate
for arrested vessels in port for more than 720 hours is the rate applicable to
the vessel at the time of the arrest under paragraph 1 or 2, and that at the
time of arrest of the Hurst on 14 March 1998, neither para 1 or 2 were in

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681

operation. She therefore argued that since at the time of the arrest of the
Hurst there was no applicable rate for port dues, para 3(1) cannot apply to
the 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 however
equally 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. In
view of the fact that the purpose of the 1997 MPA Notification is to allow
the MPA to take over the PSAs function of collecting port dues, we were of
the view on a proper construction, the phrase extends to include a
continuing state of arrest.
26 The final argument raised by Miss Ang on this issue was that of the
legal presumption against retrospective application. We were unable to
accept this argument. The presumption is not applicable as para 3(1) does
not operate retrospectively. In delivering the judgment of the Privy Council
in 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 at
common law a prima facie rule of construction that a statute should
not be interpreted retrospectively so as to impair an existing right or
obligation unless that result is unavoidable on the language used. A
statute is retrospective if it takes away or impairs a vested right
acquired under existing laws, or creates a new obligation, or imposes a
new duty, or attaches a new disability, in regard to events already past.

Paragraph 3(1) does not impose any obligation or liability retrospectively. It

merely allows events which have occurred before the coming into force of
the statute to be taken into account in determining the quantum of
payments 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 v
Tunnicliffe [1991] 2 All ER 712 at 723H:
It is well established that the presumption against retrospective
legislation does not necessarily apply to an enactment merely because
a part of the requisites for its action is drawn from time antecedent to
its passing (see R v Inhabitants of St Mary, Whitechapel (1848) 12 QB
120 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 under
the 1997 MPA Notification for the period while the Hurst was under arrest
from 9 April to 1 July 1997.
Whether the MPAs claim should be treated as sheriffs expenses
27 The third issue was whether the MPAs claim should be treated as
sheriffs expenses to be recovered from the sale proceeds in priority to all
other claims. It is an issue which has been settled in The Felicie [1991] 2
SLR(R) 550, where it was held that the practice of the sheriff treating the
PSAs port dues as part of his expenses was an established and well founded

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practice. In coming to its decision, the court relied on the decisions of

Brandon 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 Lloyds 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 of
the 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 payable
under this Act or the regulations refuses or neglects to pay the same or
any part thereof on demand, the Authority may, in addition to any
other remedy which it may be entitled to use, distrain or arrest of its
own authority the vessel and the bunkers, tackle, apparel or furniture
belonging thereto or any part thereof, and detain the same until the
amount so due is paid.

She submitted that in order for the MPA to have priority in the proceeds of
sale to reimburse itself for the port dues owed by the shipowner, the MPA
must exercise their right under s 29 of the MPA Act and make a demand for
the payment of the port dues and distrain or arrest the vessel after the issue
of the demand. It is only when this is done that a statutory possessory lien
arises in favour of the MPA. Without it, the MPA has no statutory
possessory lien to be transferred to the proceeds of sale and the MPA
therefore has no legal right to the proceeds of sale in the hands of the
sheriff.
29 In support of her submission, Miss Ang referred us to the case of The
Charger [1966] 3 All ER 117; [1966] 1 Lloyds Rep 670, a decision of
Karminski J. However, as was pointed out by Mr Chong, the harbour board
in that case lost their priority, not because of their failure to exercise their
statutory right, but because by commencing admiralty proceedings and
obtaining default judgment, the harbour board had made an election not to
rely on their statutory right. They had instead elected to enforce their claim
by means of an ordinary admiralty action in rem. The Charger therefore
does not support the appellants contention that the MPA must exercise
their statutory right under s 29 of the MPA Act before they can claim
priority in the proceeds of sale.
30 In our opinion, the argument that the MPA must exercise their
statutory right of detention before they can claim priority proceeds from a
misconception of the means available to the MPA to recover unpaid port
dues. There are three ways by which the MPA can recover port dues from a
vessel which is already under arrest.
The first way is for the MPA to recover the port dues as a simple contract
debt by way of civil proceedings against the owner of the vessel. This is
provided for by s 27(11) of the MPA Act. A second way in which the MPA

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683

can seek to recover port dues is for them to exercise their power under
s 29(1) of the MPA Act to distrain or arrest the vessel for non-payment of
dues. Subsections (2) and (3) further provide that if any part of the dues
remain unpaid for 14 days after the arrest, the MPA may sell the vessel and
recover the unpaid port dues from the sale proceeds. Such a statutory right
of detention has been described by the courts in The Countess [1923] AC
345 and The Queen of the South [1968] 1 ALL ER 1163 as a statutory
possessory lien. Where the MPA is seeking to recover port dues by this
manner, they would clearly be unable to proceed unless they had first made
a demand, and subsequently distrained or arrested the vessel after the issue
of the demand.
31 A third way for the MPA to recover port dues is for them to persuade
the court that port dues should be treated as part of the sheriffs expenses in
the arrest and sale of the vessel, and to recover the port dues from the
proceeds of the courts sale of the vessel. In The Queen of the South
Brandon 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 all
those interested in a ship that a marshal should incur expenditure on
her in order to enable him to sell her to advantage, the court may
authorise 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 may
authorise the marshal to incur expenditure which was for the benefit of all
those interested in the ship was subsequently adopted and reformulated by
the 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 sheriffs expenses is not a closed
category and can be enlarged where, in the opinion of the court, it is a
necessary and proper expense to be incurred by the sheriff in carrying
out his duties in connection with the arrest, detention, appraisement
and sale and for the preservation and good management of the res. See,
for example, The Fairport ([7] supra) where the court authorised the
payment of the classification societys fees as part of the marshals
[sheriffs] expenses so that The Fairport could be sold as a classified
vessel and thus obtain a higher price.

Therefore, where an expenditure is regarded by the court as a necessary and

proper expense to be incurred by the sheriff in carrying out his duties in
connection with the arrest, detention, appraisement and sale and for the
preservation and good management of the res, the court may authorise the
payment as part of the sheriffs expenses.
32 The reason why port dues are regarded by the court as a necessary
and proper expense of the sheriff in the carrying out of his duties is that the
recognition of port dues as part of the sheriffs expenses dissuades the MPA
from exercising its statutory right of detention under s 29 of the MPA Act,

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thereby allowing the court to sell the arrested vessel free from
encumbrances. This is because so long as the MPA has such a statutory
right of detention, it can exercise such a right against the vessel even while
she is under arrest, thereby preventing the court from selling the vessel free
from 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 All
ER 1163, 1174:
it would be for the benefit of all those interested in The Queen of the
South that the interveners claim for rates should be paid off, so that the
marshal can sell the vessel free of the interveners rights of detention
and sale, whether already exercised or capable of being exercised
hereafter. If the marshal cannot sell the ship free of such rights, he may
be unable either to find a purchaser at all, or at any rate to find one
willing to pay a proper price.

33 This third manner of recovery of port dues by the MPA, which is the
practice endorsed in The Felicie, has its legal foundation in the courts
discretion to enlarge the category of the sheriffs expenses. Where the MPA
seeks recovery by this manner, the claim for port dues comes under the
name of the sheriff, and not under the MPAs name. The MPAs
entitlement for port dues to be regarded as part of the sheriffs expenses is
dependent upon such an expense being regarded by the court as a
necessary and proper expense in the carrying out of the sheriffs duties. It
is not dependent on the existence of a statutory possessory lien which can
be transferred to the proceeds of sale. We were therefore unable to agree
with Miss Angs argument that because the MPA did not exercise their
statutory right under s 29(1) of the MPA, they did not have a statutory
possessory lien to be transferred to the proceeds of sale and hence did not
have a right of claim, simply because the MPAs right of recovery was not
dependent on any transfer of statutory possessory lien, but on port dues
being regarded as a necessary expense incurred by the sheriff in order to sell
the vessel free from encumbrances.
34 A final point to be addressed regarding the issue of whether the
practice endorsed in The Felicie is without legal foundation is the difference
of practice in England and Singapore. Our attention was drawn to the fact
that in The Queen of the South port dues were treated as part of the
marshals expenses on the basis of a written undertaking from the port
authority that they would not exercise their right of detention or sale in
respect of the rates concerned. In The Freightline One ([27] supra), there
was also a written undertaking to the effect that the port authority would
not exercise their right of detention of sale in respect of the outstanding
charges. In contrast, Singapore practice does not concern itself with any
such written undertaking. In our view, this merely reflects a difference of
practice. While the MPAs agreement not to exercise their right of statutory
detention is no doubt important, it is immaterial whether this agreement is
evidenced in the form of a written undertaking or is relied on by

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convention. The absence of a written undertaking does not affect the more
fundamental point of this appeal, which is that the practice endorsed in The
Felicie is legally founded, being based on the discretion of the court to
include port dues as part of the sheriffs expenses on the basis that it is a
necessary and proper expense of the sheriff in the carrying out of his
duties.
35 The second prong to Miss Angs assault on the practice endorsed in
The Felicie is the argument that the practice in The Felicie is inequitable. She
argued firstly, that the practice is inequitable because where the sale
proceeds are insufficient, port dues can be claimed from the arresting
solicitors under their undertaking given under O 70 r 9(3) of the Rules of
Court.
36 We were unable to see how the practice leads to injustice to the
solicitor of the arresting party. There is always the risk in every arrest of the
proceeds being insufficient to pay for sheriffs expenses so that the arresting
solicitor becomes liable under the undertaking. This risk is caused not just
from the inclusion of port dues as part of the sheriffs expenses, but by
factors which range from poor market, damage to the vessel while under
arrest, to escalation in costs for items under the sheriffs expenses. This risk
is inherent in every arrest and every arresting solicitor has the opportunity
to evaluate the risks involved before making the arrest. Where the arresting
solicitor knows in advance that port dues will be treated as sheriffs
expenses, there is no danger of any unanticipated risk. In any event, there
was in this case no danger that the arresting solicitor would have to pay
from the undertaking. Apart from the port dues, all the sheriffs expenses
had been paid up before the remainder of the proceeds of sale were paid
into court on 8 August 1997. The sole issue was whether the MPA was
entitled to its bill of $433,755 for unpaid port dues, or whether the
mortgagee Planmarine AG would get it.
37 Miss Angs second argument was that there was no equity which
required port dues to be treated as part of the sheriffs expenses and that the
sole beneficiary of the practice was the MPA. We were unable to agree with
this. The practice allows the sheriff to sell arrested vessels free from
encumbrances and thus fetch the best price from the sale while at the same
time ensuring that port dues are paid. Without such a practice, the MPA
may be compelled to exercise their statutory right of detention in every case
where a vessel is not released from arrest in order to obtain payment of port
dues. This will result in delay of the sale of the vessel and lead to further
deterioration of the vessel and further escalation of costs of preserving the
vessel. Far from being solely for the benefit of the MPA, the practice is
beneficial to all parties interested in the vessel. In considering the equities
for this case in particular, an additional factor in favour of the MPA was the
fact that the MPA had refrained from exercising their statutory right of

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detention against the Hurst in reliance on the practice endorsed in The

Felicie.
38 The third point raised by Miss Ang regarding the inequity of the
practice, was the paramount ranking of port dues amongst other items of
the sheriffs expenses, a point which was not addressed in the submissions
of Mr Chong. Miss Ang argued that the practice was inequitable because it
improved the MPAs position over what they would have had if they had
proceeded on the basis of the statutory right of detention under s 29 of the
MPA Act. If the MPA were to sell the ship under s 29 of the MPA Act, the
expenses of the sale would be deducted first from the sale proceeds, leaving
a reduced fund available to the MPA for payment of outstanding port dues.
Following the practice of The Felicie, the MPAs position was improved
since port dues would be paid out before the deduction of expenses
incurred in the sale. We were of the view that this issue of how the MPAs
claim for port dues ranked in comparison to other items of the sheriffs
expenses was not a matter of concern to the appellants. Whether port dues
ranked paramount among other items in the sheriffs expenses or whether it
ranked last, the appellants claim as mortgagee would have ranked below
the MPAs claim for port dues.
Conclusion
39 For the above reasons, we held that on a proper construction of the
1994 PSA Notification and the 1997 MPA Notification, port dues are
payable to the MPA for the period while the Hurst was under arrest from
2 March to 1 July 1997. For the reasons given above, we were also of the
view that the practice endorsed in The Felicie should be upheld. The thrust
of Miss Angs argument against the The Felicie was that it has no legal
foundation and was inequitable. However, the practice endorsed in The
Felicie is legally founded, being based on the courts discretion to include
necessary expenses as part of the sheriffs expenses, and is equitable to all
parties in that it allows the sheriff to sell the arrested vessel free from
encumbrances so as to obtain the highest price for the vessel. The appeal
was therefore dismissed.
Headnoted by Agnes Tan.