Ang Ming Chuang v Singapore Airlines Ltd (Civil Aeronautics Administration, Third Party)

Woo Bih Li J:

[1] The plaintiff, Ang Ming Chuang (“Ang”), initiated this action in or about October 2002 against the defendant, Singapore Airlines Limited (“SIA”), for damages and other relief arising from an accident involving an aircraft operated by SIA as flight SQ006 at Chiang Kai-Shek International Airport in Taiwan (“CKS International Airport”), Republic of China, on 31 October 2000 at about 2317 hours Taiwan time. While the aircraft was taking off in severe weather, it hit some construction machinery as a result of which the aircraft crashed on a runway. The aircraft had sought to take off on the wrong runway, ie Runway 05R instead of the designated Runway 05L.

[2] On 9 January 2003, SIA was granted leave to issue a third party notice to bring in the Civil Aeronautics Administration (“CAA”), which is part of the government of Taiwan, as a third party in the action. I will refer to the third party proceedings in the present suit as SIA’s Singapore action. SIA intended to seek an indemnity or contribution from CAA should SIA be found liable to Ang. After CAA’s application in Singapore claiming sovereign immunity was unsuccessful, CAA applied for SIA’s Singapore action to be stayed, dismissed and/or discontinued on the ground that the courts in Taiwan are more appropriate to determine the claim in respect of the third party proceeding and/or to avoid multiplicity of proceedings. This is the application before me.

[3] CAA’s application covers not only SIA’s Singapore action but claims by other plaintiffs from the same flight who had commenced their own actions in Singapore against SIA who in turn had commenced third party proceedings against CAA. Strictly speaking, CAA’s application should be confined only to SIA’s Singapore action although it is open to SIA and CAA to agree that a decision on CAA’s present application will apply to SIA’s claims against CAA in the other proceedings in Singapore. Indeed, I was informed that SIA and CAA have agreed to apply my decision on CAA’s present application to all the other proceedings in Singapore which SIA is taking against CAA.

[4] Although SIA had obtained leave to issue a third party notice against CAA in this action on 9 January 2003, SIA subsequently commenced an action in Taiwan on 30 April 2003 against CAA in respect of the same accident. SIA’s Taiwan action was wider for the following reasons. In so far as SIA was seeking an indemnity or contribution from CAA, this was not limited to the claims against SIA already filed in Singapore and included claims against SIA worldwide. SIA’s Taiwan action also included a claim for hull and cargo losses.

[5] In these circumstances, CAA’s arguments about lis alibi pendens should be considered ahead of its arguments on forum non conveniens.

[6] In Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 3 SLR 121, a Singapore-incorporated employer had sought an injunction to restrain its employee from continuing his action in California, USA, which was for unlawful dismissal. The employee had been working in California for the employer. Chief Justice Yong Pung How, delivering the judgment of the Court of Appeal, said at [22]:

[9] CAA placed reliance on these two cases, especially on that part of the judgment of Karthigesu JA in Yusen which said that once a duplicity of actions was established, the burden of proof then shifted to the plaintiff to justify the continuance of the concurrent proceedings by showing very unusual circumstances.

[10] However, I note that the last sentence of [27] of that judgment said that if the plaintiff failed to demonstrate such unusual circumstances, he would have to make an election. Therefore, it seems to me that if SIA has not already elected to pursue its action in Taiwan and if it were to elect to carry on with its Singapore action, then the burden would shift back to CAA to establish its argument on forum non conveniens.

[11] In the present case, SIA did not elect to proceed with the Singapore action and to stay its Taiwan action until in the hearing before me when, in the course of arguments, SIA’s counsel submitted, firstly, that the prosecution of the two actions was not vexatious and if it were vexatious and SIA were called upon to elect, SIA would then elect to continue with the Singapore action and stay the Taiwan action. This submission was made on the assumption that SIA had not yet elected to continue with the Taiwan action.

[12] Since 30 April 2003 when SIA filed the Taiwan action, there have been a number of hearings in Taiwan. In my view, it is prima facie vexatious for SIA to continue with both its Taiwan action and its Singapore action. Although there is some evidence that SIA cannot stay the Taiwan action unless CAA agrees and even then, only for a limited period of four months, it is still open to SIA to limit its Taiwan action to claims not covered by SIA’s Singapore action. This it did not do. In my view, SIA has also failed to demonstrate very unusual circumstances for continuing with its Taiwan and Singapore actions.

[14] In the circumstances, it is not necessary for me to put SIA to an election and SIA’s Singapore action should either be dismissed or stayed on the ground of lis alibi pendens.

[15] In the event that I am wrong on the issue of lis alibi pendens, I will also deal with the issue of forum non conveniens. The classicus locus on the factors to be considered for such an application is the case of Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada) [1987] AC 460 although that case actually involved the question whether an order granting leave to serve a writ out of jurisdiction should be discharged. The House of Lords in The Spiliada concluded that the same fundamental principle was applicable to both a stay of English proceedings on forum non conveniens and the grant of leave to serve English proceedings out of jurisdiction, ie the court would choose the forum in which the case would be tried more suitably for the interests of all the parties and the ends of justice.

[16] The Spiliada is authority for the principle that it is for CAA to show not merely that Singapore is not the natural or appropriate forum but that there is another available forum which is clearly or distinctly more appropriate than the Singapore forum. The principle enunciated in The Spiliada has been applied from time to time by the Singapore courts, which have also applied the factors enunciated in The Spiliada in considering whether an applicant seeking a stay has discharged its burden. Naturally, the factors enunciated in The Spiliada are not exhaustive. I will now deal with the factors before me.

[17] CAA operates only in Taiwan. On the other hand, while SIA is a company incorporated in Singapore with its headquarters in Singapore, SIA operates worldwide. Its flights commence from locations and reach destinations all over the world, including Taiwan. It also has offices all over the world, including Taiwan.

[18] As for the location of witnesses, the affidavit of Mr Billy K C Chang, Director-General of CAA, filed on 18 February 2004, states the following as a list of possible witnesses of fact who are located in Taiwan:

[20] SIA did not dispute the possible list of witnesses mentioned by Mr Chang. SIA’s response, through the first affidavit of its attorney in Taiwan, Mr Ta-Kai Shao, filed on 11 March 2004, was that the argument cuts both ways as witnesses for SIA who are not resident in Taiwan would similarly then have to travel to Taiwan if the hearing were held there. However, I note that SIA did not list out who those witnesses might be. Given that the incident occurred in an airport in Taiwan and the alleged acts of negligence which SIA is raising against CAA would have occurred in Taiwan, it seems to me that it is more likely that there will be more witnesses from Taiwan than from Singapore.

[21] As for the issue about the non-compellability of witnesses in Taiwan to give evidence in Singapore, Mr Shao’s view was that they could be compelled to give evidence in Taiwan. He said that the Taiwanese court may summon a witness and compel him to testify. After the witness has given his statement of evidence, the Taiwanese court will relay the same to the Taiwanese Ministry of Foreign Affairs who will relay the same to its Singapore counterpart. CAA’s attorney in Taiwan, Mr Wellington Koo, disagreed that a Taiwanese court would compel a witness to give evidence although the Taiwanese court would render judicial assistance to obtain evidence if the witness were prepared to give evidence.

[22] In my view, even if a witness in Taiwan were compellable to give evidence there for an action in Singapore, Mr Shao was not asserting that the witness would also be compelled to give evidence in Singapore. Moreover, he was also not asserting that the Taiwanese court would compel evidence to be given by the witness through video conferencing or other facilities during a trial in Singapore but rather that the evidence would be recorded in a statement in Taiwan and then forwarded to Singapore. Apparently, there would be no cross-examination of that witness, although that is the usual procedure available in Singapore.

[23] I also note that there was no suggestion by SIA that it would have difficulty in getting its witnesses to fly to Taiwan.

[24] Mr Chang also asserted that as SIA’s claims are based upon, inter alia, the inadequate operation and maintenance of the CKS International Airport by CAA, many of the relevant documents will be located in Taiwan, including the documents of CAA. Mr Koo added that most of the documents of CAA are in Chinese and would have to be translated, into English, for Singapore proceedings.

[26] It seems to me that it is more likely that there will be more documents from Taiwan than from Singapore and that most of the documents from Taiwan will be in Chinese which will require translation to be done if the proceedings were to continue in Singapore.

[27] Mr Koo asserted that the physical conditions at CKS International Airport might be in contention and fundamental to the trial and a Taiwanese court would be in a better position to conduct a site inspection of various items:

(a) Runway designs of Runways 05R and 05L and their relative positions to each other;

(b) Physical characteristics of Runways 05R and 05L, their similarities and their differences;

(c) Runway designations at the holding positions of Runways 05R and 05L;

(d) Guard lights at holding positions of Runway 05L;

(e) Bar lights at holding positions of Runway 05L;

(f) Taxiway centreline lights on Taxiway N1 across the threshold of Runway 05R;

(g) The lighting and radar system at CKS Airport.

[28] Mr Shao did not dispute that a Taiwanese court would be better placed to do a site inspection. Indeed, this was obvious. However, Mr Shao was of the view that it was pure assumption that a site visit by the court was necessary. SIA’s counsel, Mr Lok Vi Ming, added that the accident site had been thoroughly examined and inspected by experts after the accident and accident reports had been completed a long time ago. It would be pointless to inspect the accident site now.

[29] It seems to me that, unless the inspection is done on board a similar aircraft from where the pilots were seated and in similar severe weather as on that fateful day, the value of a site inspection is likely to be low since it is not disputed that the accident site has been inspected and accident reports have been prepared. Nevertheless, the possible value of a site inspection cannot be ruled out at this stage.

[30] SIA’s Taiwan action against CAA is based on certain legislation there such as the Civil Code and the State Compensation Law which imposes liability for intentional or negligent conduct. SIA’s Singapore action against CAA is based on common law negligence.

[31] In para 7.3 of the affidavit of Mr Koo filed on 18 February 2004, he opined that the nature of SIA’s Singapore action was essentially similar (if not identical) with SIA’s Taiwan action. In paras 8 to 10 of his affidavit filed on 27 October 2004 he repeated this view. Yet I noted that in para 13 of Mr Koo’s earlier affidavit, ie the one filed on 18 February 2004, Mr Koo had said under the heading, “Governing law of the Tort”:

[32] It seems to me that Mr Koo had contradicted himself. If the law on negligence in Taiwan is substantially similar as common law negligence then the substantive law in both jurisdictions is not markedly different. Differences in procedure are a different point from the governing law which deals with substantive law.

[33] On his part, Mr Shao was of the view that there were differences in the substantive law of both jurisdictions.

[34] Eventually, notwithstanding what Mr Koo had opined about substantial similarity in the laws of negligence in both jurisdictions, CAA’s counsel, Mr Loo Choon Chiaw, had to submit that there must be some differences.

[35] I am of the view that it is inevitable that there will be some differences in the relevant substantive law of both jurisdictions. This then makes the question as to the governing law of some significance to CAA’s application.

[36] Mr Koo said that since the accident took place in Taiwan, the governing law is the law of Taiwan. He also suggested that this would be the law a Singapore court would apply if the proceedings between SIA and CAA were to be heard in Singapore.

[37] As for Mr Shao, he appeared to accept that SIA’s Taiwan action is governed by the law of Taiwan. However, as for SIA’s Singapore action, he said that he had been advised by SIA’s Singapore solicitors that whether the law of Taiwan would govern was a conflict of laws issue for the Singapore court to decide.

[38] Mr Loo took me through the double actionability rule in Phillips v Eyre (1870) LR 6 QB 1 and the qualification of that rule in Chaplin v Boys [1971] AC 356 and the further qualification in Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 (“Red Sea Insurance”). Mr Loo submitted that Red Sea Insurance appeared to have established the following:

(a) The double actionability rule is not inflexible, and it is possible to depart from it on clear and satisfying grounds in order to avoid injustice by holding that a particular issue between the parties should be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and with the parties.

(b) The application of the lex loci delicti is not necessarily limited to any particular issue, but may apply to the whole claim, if virtually all of the significant factors are in favour of that country.

[39] In Goh Chok Tong v Tang Liang Hong [1997] 2 SLR 641 (“Goh Chok Tong”) and Parno v S C Marine Pte Ltd [1999] 4 SLR 579 (“Parno”), the Court of Appeal said that the rule in Phillips v Eyre and the qualifications in Chaplin v Boys and in Red Sea Insurance are part of the law in Singapore.

[40] In England, the double actionability rule is no longer the general rule. The lex loci delicti rule has been adopted by the Private International Law (Miscellaneous Provisions) Act 1995 (c 41) since 1 May 1996 as the general rule, subject to exceptions.

[41] Mr Loo also drew my attention to two other common law jurisdictions which, by judicial decision, have applied the lex loci delicti as the general rule.

[42] In Tolofson v Jensen (1994) 120 DLR (4th) 289 (“Tolofson”), a plaintiff passenger was injured in 1979 in a car driven by his father which collided with another car in Saskatchewan. The passenger and his father resided in British Columbia where the father’s car was registered and insured. The other car was registered and insured in Saskatchewan and driven by a Saskatchewan resident. Saskatchewan law then imposed a one-year limitation period on an action arising from the accident, whether or not the plaintiff was an infant. It also provided that a driver had to be grossly negligent before a gratuitous passenger could recover damages. In 1987, the plaintiff sued his father and the Saskatchewan driver in British Columbia. A chambers judge dismissed the Saskatchewan driver’s application for a declaration that the action be stayed because Saskatchewan law applied. The British Columbia Court of Appeal dismissed his appeal holding that the law of the forum should apply.

[43] The Supreme Court of Canada allowed the Saskatchewan driver’s appeal. La Forest J delivered the main judgment which four other judges concurred with. The other two judges also concurred with his judgment subject to a qualification which is not relevant for present purposes. As I have been anxious about the double actionability rule, I will quote extensively from La Forest J’s learned exposition. To avoid confusion, I should mention that the Supreme Court of Canada was dealing with two appeals, one being the accident in Saskatchewan and another being an accident in Quebec, the facts of which I need not relate. The outcome of the other appeal was the same as that in Tolofson. La Forest J said at 297–308:

[44] The other common law jurisdiction which Mr Loo relied on was Australia and he cited the case of Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 (“Renault”), a decision of the High Court of Australia. I will adopt part of the headnote:

[45] The judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ (at [59] and [60]) stated:

[46] I quote from the judgment of Kirby J also where he said (at [127]–[133]):

[47] I should mention that although the High Court of Australia was of the view that the governing law was the law of France being the lex loci delicti, the court decided, by a majority of five to two, that the action in New South Wales should not be stayed because the Renault companies had not shown that a trial in New South Wales would be oppressive or vexatious. However, that is not the test in Singapore for a stay application. As I have said, the test is whether there is a clearly more appropriate forum than Singapore, subject to any question raised about the ends of justice.

[48] Mr Loo submitted that since the location of any breach by CAA was Taiwan and any damage caused to SIA would be in Taiwan, the governing law would still be the law of Taiwan even if the proceedings were to be heard in Singapore. For this submission, Mr Loo was relying initially on the Red Sea Insurance exception to the double actionability rule and, alternatively, on the lex loci delicti as the general rule.

[49] On the other hand, Mr Lok submitted that the governing law would be Singapore law under the double actionability rule which, he stressed, was still the general rule applicable in Singapore as acknowledged by our Court of Appeal. Mr Lok also submitted that an exception to this rule would be applied to avoid depriving a plaintiff of redress but not otherwise. To this, Mr Loo countered that SIA was the tortfeasor and it was CAA who was the victim, presumably because the accident caused some physical damage to CKS International Airport. I should add that CAA has made a claim in Taiwan for damages and for which a ruling, I understand, has been given after arguments were presented to me. As regards SIA’s claims against CAA, whether in Singapore or Taiwan, SIA remains the plaintiff.

[50] It seems to me that Tolofson was not drawn to the attention of our Court of Appeal in Goh Chok Tong and in Parno. As for Renault, it was reported after these two local cases. It may be that our Court of Appeal will also consider it time to depart from the double actionability rule but, until then, that rule is the general rule in Singapore for international torts. If I were not bound by the doctrine of precedence, I would have departed from the double actionability rule for the reasons stated by La Forest J in favour of the lex loci delicti as a general rule for international torts. For present purposes, it is not necessary for me to venture a view as to whether the lex loci delicti should be subject to an exception and what the exception should be since neither counsel before me suggested that an exception to the lex loci delicti would be applicable on the facts.

[51] In any event, I am of the view that even with the application of the double actionability rule, the exceptions to that rule are not confined to a situation where a plaintiff will otherwise be deprived of recourse although that might have been a powerful motivation in the past. As Kirby J observed in Renault, the law must be just to defendants as well as plaintiffs.

[52] I have also taken into account the fact that SIA’s flights into and out of Taiwan would be subject to Taiwan law. Its operations from CKS International Airport would be subject to the rules and regulations of CAA. For the purpose of the application before me, I am of the view that the Red Sea Insurance exception applies and that the law of Taiwan will apply to SIA’s Singapore action if the trial of that action were to be in Singapore. The significant factors are clearly in favour of the law of Taiwan being the governing law.

[53] Mr Loo also submitted that if the Singapore proceedings were not stayed and if SIA were to obtain judgment against CAA, SIA would still have to seek redress in Taiwan. There is no reciprocity between Taiwan and Singapore as would enable a Singapore judgment of a superior court to be registered in Taiwan. Furthermore, the opinion of Mr Koo was that SIA would not be allowed to sue upon the Singapore judgment and SIA would have to sue afresh in Taiwan. On the other hand, Mr Shao’s opinion on this point was, in summary, that Mr Koo’s opinion was premature.

[54] Even if Mr Koo’s opinion were correct and SIA would have to sue afresh in Taiwan, I am of the view that this would be a problem for SIA to contend with and it was not for CAA to raise it as a factor in favour of a stay application. A similar view was expressed by Lee Seiu Kin JC in Bayerische Landesbank Girozentrale v Kong Kok Keng [2002] 4 SLR 283. Although that case involved a consideration of two common law jurisdictions where the action might be pursued, Lee JC said at [13] that if the plaintiff should choose to sue in a jurisdiction that made enforcement more difficult, it was a problem that would be faced by the plaintiff and it was rather surprising that the defendant should be the one to complain.

[55] However, the fact that SIA’s Taiwan action is wider in scope than its Singapore action is, in my view, an important factor. As I have mentioned, SIA’s Taiwan action is for an indemnity or contribution for damages paid or payable by SIA to passengers and crew under various jurisdictions as well as for hull and cargo losses.

[56] Accordingly, the question arises as to whether a finding of liability or exoneration of liability on the part of CAA by a Singapore court will be binding between SIA and CAA in the Taiwan action when the additional claims of SIA are considered.

[57] Mr Koo was of the opinion that it would not be binding. Mr Shao did not venture an opinion on this point. It seems to me that there is clearly a risk that the issue of liability as between SIA and CAA will have to be re-litigated all over again for the additional claims with the real possibility of a different conclusion if I were to refuse CAA’s application. In my view, this is another factor favouring a stay.

[58] Mr Loo submitted that in The Spiliada, Lord Goff of Chieveley said at 477:

[59] Mr Loo submitted that the Singapore court’s jurisdiction over CAA is not founded as of right as the jurisdiction over CAA is exercised by virtue of service of proceedings outside of Singapore on CAA under O 11 r (1)(q) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed). That provision allows a party to seek leave of the court to serve process on a party outside Singapore if the applicant is seeking a contribution or an indemnity in respect of liability enforceable by proceedings in Singapore.

[60] On the other hand, Mr Lok submitted that once the Singapore court has jurisdiction, the quality of the jurisdiction should not be considered.

[61] In my view, either the Singapore court has jurisdiction or it does not. I agree that the quality of the jurisdiction per se should not matter. However, if the jurisdiction is based on a slim ground, then it should be easier for CAA to establish that there is clearly a more appropriate forum than Singapore, but the slim ground is not another discrete factor in favour of a stay.

[62] It is not necessary for me to venture a view as to whether the exercise of jurisdiction under O 11 r (1)(q) was exorbitant in the circumstances as there was no application before me to set aside the order granting SIA leave to serve process out of jurisdiction.

[63] Mr Lok also relied on two other factors to resist the stay application.

[64] First, he said that the dispute between SIA and CAA is a matter of public and national interest that should be tried in Singapore. It seems to me that the dispute is no less a matter of public and national interest in Taiwan. It may even be said to be of greater interest in Taiwan as the tragedy occurred there and the operation of CKS International Airport will be under scrutiny as contrasted with the operation of a few crew members on board an aircraft.

[65] Mr Lok’s second point was that the role of CAA will be material in SIA’s defence in the claim by Ang against SIA. Mr Lok submitted that:

I am of the view that while the role of CAA may be material in SIA’s defence, it does not follow that SIA will be prejudiced if CAA does not participate in the Singapore action. The reality is that if CAA does not participate, SIA will be at liberty to make whatever assertions it wishes about CAA’s role in the accident without challenge from CAA. It seems to me that this will be an advantage to SIA vis-à-vis Ang rather than a prejudice.

[66] In the circumstances, I am of the view that Taiwan is clearly the more appropriate forum. Having reached this conclusion, I come to certain allegations made by Mr Shao which may give the impression that SIA will not get justice in Taiwan.

[67] In para 15 of Mr Shao’s first affidavit filed on 11 March 2004, Mr Shao said that there was some concern in some quarters that SIA would face difficulty in its claim in Taiwan as it is a claim against the government. However, he went on to say that while this concern might be unfounded, it was understandable that such a perception might exist. I am of the view that such statements are not helpful and should not have been made. Either Mr Shao has an opinion as to whether SIA can get justice in Taiwan or he has no opinion on it. If it were the latter position, as his statements suggest, then he should refrain from saying anything instead of expressing the views or concerns of others.

[68] Furthermore, in para 10 of Mr Shao’s second affidavit filed on 17 August 2004, Mr Shao went on to say that while he would comment no further on this issue, he would raise the following pertinent facts which were not in dispute:

(a) The accident was investigated by the Taiwanese Aviation Safety Council (“the ASC”), an independent Taiwanese government agency;

(b) CAA is a branch of the Taiwanese government;

(c) The findings in the investigation report issued by the ASC (“the ASC Report”) were not favourable to SIA;

(d) The findings in the ASC Report had received wide publicity in Taiwan and were now the main substantive evidence relied on by CAA in the Taiwanese proceedings; and

(e) SIA is not a Taiwanese party.

[69] Yet again Mr Shao stopped short of asserting that SIA would not get justice in Taiwan. In my view, Mr Shao should not have listed out the above facts which were calculated to give the impression that SIA would not get justice in Taiwan.

[70] Another point raised by Mr Shao was that the actions by the plaintiffs in Singapore against SIA are based mainly on the Warsaw Convention or subsequent versions of it. If SIA were found liable under the Warsaw Convention, CAA is likely to raise the defence in the Taiwan action that such judgments are not recognised under Taiwan law as Taiwan is not a signatory to any version of the Warsaw Convention. Mr Shao was suggesting that SIA would have difficulty in claiming indemnity, or contribution, on liabilities founded on judgments based on a convention which Taiwan was not part of.

[71] In my view, this argument cuts both ways. Why should CAA be deprived of this defence by a refusal to order a stay of SIA’s Singapore action? This point raised by Mr Shao is a neutral factor.

[72] Accordingly, I am of the view that SIA’s Singapore action should be stayed on the ground of forum non conveniens as well.