O.W. Bunker. Similarly, Canadian and English courts reached the same results and
outcomes as the Second Circuit holding that they have subject matter jurisdiction
over interpleader actions.
67 But a Singapore court dismissed the request for interpleader. It applied the personification doctrine rigidly and held that the in personam
action against the shipowners and the in rem action against the ships were of a
different nature and did not concern the same debt.
68 The Singapore court’s decision
portends horrible consequences. Because this was a global bankruptcy initiated by
O.W. Bunker, its influence extends not only to shipowners and actual suppliers, but
also to the whole industry.
69
As discussed above, affected shipowners without recourse to interpleader actions
may submit to double payment to avoid the threat of ship arrest by the actual
suppliers, even if they already paid O.W. Bunker. In addition, instead of pursuing
O.W. Bunker, the real debtor, the actual suppliers chased after the shipowners,
leaving O.W. Bunker, the entity on which liability should be imposed, out of the
picture. The personification doctrine is a legal fiction that is convenient in many
instances.
70 However, the court need not blindly treat in personam claims as separate
and distinct from in rem claims, especially when doing so would result in unfairness
and injustice. Rigidly applying the doctrine of personification like the Singapore
court did, is not conducive to fairness and equity and may even threaten to disrupt
the whole shipping industry.
After this case, shipowners may use interpleader actions to protect themselves
from double payment and the threat of ship arrest. Maritime and bankruptcy
practitioners, however, still need to be aware that there are different conclusions
regarding this matter around the world, and no uniform solution has yet come to
light. From the perspectives of practitioners, it may be easier for them in other areas
of maritime law to argue that the court should approach the doctrine of personification with a mind for fairness. On the other hand, from the perspectives of courts, they
should be aware that the personification is a legal fiction that remains useful for
certain purposes, but not for all.
71 If the court applies the personification doctrine
indiscriminately, it will eventually be rendered unreliable and innocuous, and may
lead to U.S. courts adopting a permutation of the procedural theory espoused by
English courts. Thus, the preservation of the personification theory mandates judicial
recognition of equity’s role in rendering ship personification inapplicable in the
67 Canpotex Shipping Services Ltd. v. Marine Petrobulk Ltd., 2015 FC 1108 (Can.), http://www.
canlii.org/en/ca/fct/doc/2015/2015fc1108/2015fc1108.html; Stena Bulk AB v. Copley, [2015]
1 Lloyd’s Rep. 280 (QBD, Admiralty Ct).
68 Precious Shipping Public Company Co Ltd v O.W. Bunker Far East (Singapore) Pte Ltd [2015]
SGHC 187, para. 83–84.
69 Insurance companies, financing institutions (such as ING), cargo owners, and other relevant
parties may all be affected.
70 Usually it will provide a remedy directly against the vessel, which removes an admiralty
claimant’s extremely difficult burden of identifying the party truly responsible for its loss. Davies
(2000), pp. 363–364.
71 Davies (2000), p. 373.
Shipowner Protection in the Wake of the Collapse of O.W. Bunker: The. . .
687
outcomes as the Second Circuit holding that they have subject matter jurisdiction
over interpleader actions.
67 But a Singapore court dismissed the request for interpleader. It applied the personification doctrine rigidly and held that the in personam
action against the shipowners and the in rem action against the ships were of a
different nature and did not concern the same debt.
68 The Singapore court’s decision
portends horrible consequences. Because this was a global bankruptcy initiated by
O.W. Bunker, its influence extends not only to shipowners and actual suppliers, but
also to the whole industry.
69
As discussed above, affected shipowners without recourse to interpleader actions
may submit to double payment to avoid the threat of ship arrest by the actual
suppliers, even if they already paid O.W. Bunker. In addition, instead of pursuing
O.W. Bunker, the real debtor, the actual suppliers chased after the shipowners,
leaving O.W. Bunker, the entity on which liability should be imposed, out of the
picture. The personification doctrine is a legal fiction that is convenient in many
instances.
70 However, the court need not blindly treat in personam claims as separate
and distinct from in rem claims, especially when doing so would result in unfairness
and injustice. Rigidly applying the doctrine of personification like the Singapore
court did, is not conducive to fairness and equity and may even threaten to disrupt
the whole shipping industry.
After this case, shipowners may use interpleader actions to protect themselves
from double payment and the threat of ship arrest. Maritime and bankruptcy
practitioners, however, still need to be aware that there are different conclusions
regarding this matter around the world, and no uniform solution has yet come to
light. From the perspectives of practitioners, it may be easier for them in other areas
of maritime law to argue that the court should approach the doctrine of personification with a mind for fairness. On the other hand, from the perspectives of courts, they
should be aware that the personification is a legal fiction that remains useful for
certain purposes, but not for all.
71 If the court applies the personification doctrine
indiscriminately, it will eventually be rendered unreliable and innocuous, and may
lead to U.S. courts adopting a permutation of the procedural theory espoused by
English courts. Thus, the preservation of the personification theory mandates judicial
recognition of equity’s role in rendering ship personification inapplicable in the
67 Canpotex Shipping Services Ltd. v. Marine Petrobulk Ltd., 2015 FC 1108 (Can.), http://www.
canlii.org/en/ca/fct/doc/2015/2015fc1108/2015fc1108.html; Stena Bulk AB v. Copley, [2015]
1 Lloyd’s Rep. 280 (QBD, Admiralty Ct).
68 Precious Shipping Public Company Co Ltd v O.W. Bunker Far East (Singapore) Pte Ltd [2015]
SGHC 187, para. 83–84.
69 Insurance companies, financing institutions (such as ING), cargo owners, and other relevant
parties may all be affected.
70 Usually it will provide a remedy directly against the vessel, which removes an admiralty
claimant’s extremely difficult burden of identifying the party truly responsible for its loss. Davies
(2000), pp. 363–364.
71 Davies (2000), p. 373.
Shipowner Protection in the Wake of the Collapse of O.W. Bunker: The. . .
687