July 8, 2024
Publications
What makes a ship, a ship?
Like the proverbial pink elephant in the room, one assumes that a ship is immediately and obviously identifiable. However, locally, and internationally, the definition of what is a ship has proved illusory, the criterion being “at sea” as it were.
Among the more unusual cases which have come up for determination would rank the following:
The High Court (Admiralty Jurisdiction) Act 1961 (2020 Rev Ed) (“HCAJA”) is the legislation that sets out the ambit of the local Courts’ admiralty jurisdiction. Section 2 of the HCAJA defines “ship” as simply “any description of vessel used in navigation”. However, a neat definition of a “ship” or “vessel” has proved elusive. The High Court in EcoSpark has held (at [69]) that of necessity, the inquiry as to what constitutes a “ship” must be multi-factorial.
Practically speaking, the more ship-like characteristics one could tick off, the more likely the vessel is a “ship” and vice versa. However, the absence of certain characteristics does not immediately mean that the vessel is not a “ship”.
Relevant physical characteristics
Insofar as physical characteristics of a vessel were concerned, the “ability to self-propel, being possessed of a keel or a steering mechanism such a rudder, having a crew to man the ship, navigation lights, and ballast tanks” are usual physical characteristics (at [73]) and a vessel having all or most of these characteristics is more like than not to be a “ship”.
Design and capability of being used in navigation
At its very essence however, the Court noted that whether a vessel was “designed and capable of being used in navigation” was a weighty consideration in determining whether or not a vessel was a “ship” within the meaning of the HCAJA.
In that regard, a vessel must be designed to be capable of movement from one place to another on the water, but, need not be currently used to move from one place to another on water. Inasmuch as a car parked in a parking lot remains a car, a vessel not currently traversing the water (but capable of it) remains a vessel.
In addition, the Court declined to follow the line of authorities which hold that the vessel’s primary work should be executed while in navigation, and adopted instead the reasoning in the English Court of Appeal in Perks v Clark (Inspector of Taxes) [2001] 2 Lloyd’s Rep 431, that navigation can be incidental to another function such as dredging or providing accommodation.
Class and flag
Further to the above, the classification of the vessel, and registration and flag of the vessel in question has also been flagged out an important indication as to whether the vessel is a “ship” and/or “used in navigation”.
Conclusion
In this case, notwithstanding that the vessel the ECO SPARK, lacked many of the usual physical characteristics of a ship e.g. no engines, no crew, no navigational equipment, the Court noted that the vessel, being a converted dumb barge, was designed for and remained capable of being in navigation. The fact that she had special structures installed on top of the barge structure did not render her no longer navigable.
While the vessel was spudded down into the seabed and does not move on a daily basis, she is capable of being moved and remains capable of navigation. In addition, the fact that she had been towed from Batam to Singapore immediately prior to her use as a floating fish farm, and her capability of being classed (notwithstanding that her owners had not maintained her class status), pointed to her being a ship for the purposes of section 2 of the HCAJA.
In conclusion, this judgment is a timely and illuminative one and provides a greater degree of certainty and clarity as to when the admiralty jurisdiction of the Singapore courts is to be invoked.
Among the more unusual cases which have come up for determination would rank the following:
- Houseboats & floatels i.e. floating motels (The Environment Agency v Gibbs and another [2016] 2 Lloyd’s Rep 69, Addison v. Denholm Ship Management (UK) Ltd. [1997] I.C.R. 770);
- Flying boats (Polpen Shipping Co.v Commercial Union Assurance Co., Ltd (1942) 74 LI LR 157); and
- A remotely operated underwater vehicle (Guardian Offshore AU Pty Ltd v Saab Seaeye Leopard 1702 Remotely Operated Vehicle Lately on Board the Ship “Offshore Guardian” and another [2020] 1 Lloyd’s Rep 201).
The High Court (Admiralty Jurisdiction) Act 1961 (2020 Rev Ed) (“HCAJA”) is the legislation that sets out the ambit of the local Courts’ admiralty jurisdiction. Section 2 of the HCAJA defines “ship” as simply “any description of vessel used in navigation”. However, a neat definition of a “ship” or “vessel” has proved elusive. The High Court in EcoSpark has held (at [69]) that of necessity, the inquiry as to what constitutes a “ship” must be multi-factorial.
Practically speaking, the more ship-like characteristics one could tick off, the more likely the vessel is a “ship” and vice versa. However, the absence of certain characteristics does not immediately mean that the vessel is not a “ship”.
Relevant physical characteristics
Insofar as physical characteristics of a vessel were concerned, the “ability to self-propel, being possessed of a keel or a steering mechanism such a rudder, having a crew to man the ship, navigation lights, and ballast tanks” are usual physical characteristics (at [73]) and a vessel having all or most of these characteristics is more like than not to be a “ship”.
Design and capability of being used in navigation
At its very essence however, the Court noted that whether a vessel was “designed and capable of being used in navigation” was a weighty consideration in determining whether or not a vessel was a “ship” within the meaning of the HCAJA.
In that regard, a vessel must be designed to be capable of movement from one place to another on the water, but, need not be currently used to move from one place to another on water. Inasmuch as a car parked in a parking lot remains a car, a vessel not currently traversing the water (but capable of it) remains a vessel.
In addition, the Court declined to follow the line of authorities which hold that the vessel’s primary work should be executed while in navigation, and adopted instead the reasoning in the English Court of Appeal in Perks v Clark (Inspector of Taxes) [2001] 2 Lloyd’s Rep 431, that navigation can be incidental to another function such as dredging or providing accommodation.
Class and flag
Further to the above, the classification of the vessel, and registration and flag of the vessel in question has also been flagged out an important indication as to whether the vessel is a “ship” and/or “used in navigation”.
Conclusion
In this case, notwithstanding that the vessel the ECO SPARK, lacked many of the usual physical characteristics of a ship e.g. no engines, no crew, no navigational equipment, the Court noted that the vessel, being a converted dumb barge, was designed for and remained capable of being in navigation. The fact that she had special structures installed on top of the barge structure did not render her no longer navigable.
While the vessel was spudded down into the seabed and does not move on a daily basis, she is capable of being moved and remains capable of navigation. In addition, the fact that she had been towed from Batam to Singapore immediately prior to her use as a floating fish farm, and her capability of being classed (notwithstanding that her owners had not maintained her class status), pointed to her being a ship for the purposes of section 2 of the HCAJA.
In conclusion, this judgment is a timely and illuminative one and provides a greater degree of certainty and clarity as to when the admiralty jurisdiction of the Singapore courts is to be invoked.
