Cosco Shipping Lines Co. Ltd. v Eonmetall Systems Sdn. Bhd. (PA-27NCC-1-02/2023)

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PA-27NCC-1-02/2023 Kand. 189 18/06/2026 10:03:51 DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG GUAMAN SIVIL NO.: PA-27NCC-1-02/2023

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(1) PW1: Neoh Choo Pin, General Manager (GM) of COSCO2;

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(2) PW2: Subhashini Sreetharan (Hashini); Deputy Section Manager in the Demurrage and Detention Section of the Equipment Control Department of COSCO2;

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(3) DW1: Florence Ang Boey Lin; Logistics Manager II of Eonmetall, in charge of choosing, and negotiating with, the transport provider;

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(4) DW2: Ivan Teh: Deputy GM of Eonmetall, in charge of operations, and overseeing all departments;

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(5) DW3: Yeoh Cheng Chye; Managing Director of Eonmetall

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(6) TPW1: A. Mohamed Saifdeen, Head of Finance in UMHE. [16] Notably, both Eonmetall and UMHE did not get Syed to testify. Neither of them subpoenaed Syed to testify. [17] At the outset, I wish to point out that there are two distinctions in these two suits. First, Suit 1 is a shipping case: Cosco's claim arises from the Bill of Lading and is for DND and auction charges caused by the abandonment of the Second Shipment. Second, Suit 70 is a goods-sold-and-delivered case: the cause of action is for the price of goods Eonmetall says UMHE ordered and refused to pay for. [18] These two suits, though arising from the same transaction, are legally distinct. The question of whether Eonmetall is liable to Cosco under the Bill of Lading is a separate question from whether a valid sale contract exists between Eonmetall and UMHE. PERTINENT FACTS [19] The following facts are proven and pertinent to the findings in this judgment. [20] The subject Bill of Lading was issued by COSCO1 through COSCO2 on 10.4.2019, naming Eonmetall as shipper and UMHE as consignee. It was for the carriage of ten 40-foot containers of Eonmetall's steel storage racking systems (the Second Shipment) from Penang to Jebel Ali. [21] Both DW1/Ang and DW3/Yeoh confirmed that the Bill of Lading constitutes the contract of carriage between COSCO1 and Eonmetall. [22] The Bill of Lading. The following terms of the Bill of Lading are pertinent to Cosco's claim—

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(1) Whether there is a contract of carriage between COSCO1 and Eonmetall arising from the Bill of Lading for the shipment of the goods (the Second Shipment) to Jebel Ali.

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(2) Whether CPW is an agent of Eonmetall who facilitated the contract of carriage between Eonmetall (as shipper) and COSCO1 (as carrier).

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(3) If (1) or (2) is yes, whether Eonmetall breached the contract of carriage by failing to pay Invoice 2 (this is the subject invoice). (There was an earlier Invoice 1, which is not at issue here.)

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(4) If (1) or (2) is yes, whether Eonmetall is jointly and severally liable with UMHE (the consignee) to COSCO1 for all losses arising from UMHE's failure to take delivery.

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(5) If (4) is yes, whether Eonmetall is liable to pay damages of RM1,194,026.10 as stated in Invoice 2 (for DND charges and auction charges).

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(6) If (5) is yes, whether Eonmetall is contractually liable to pay interest on the sum of RM1,194,026.10 at 0.1% per day from 14 days after 22.3.2021 until full payment. [43] The agreed issues to be tried between Eonmetall and UMHE (ITBT(2)) are:

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(1) Whether there is a valid contract of sale between Eonmetall and UMHE under the Proforma Invoice, and if so, whether the Bill of Lading binds UMHE as consignee.

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(2) Whether Syed is Eonmetall's agent, and if so, whether his admission that the First Shipment belonged to Eonmetall MENA, and that he was changing the consignee particulars from UMHE to Eonmetall MENA, binds Eonmetall.

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(3) Whether the copy of the Proforma Invoice bearing UMHE's stamp and said to be signed by UMHE, binds UMHE and forms a valid sale contract between the parties.

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(4) If a valid sale contract exists, whether Eonmetall's liability ended upon delivery of the goods to Jebel Ali, or whether risk had passed to UMHE upon loading.

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(5) If a valid sale contract exists, whether the DND and port charges should be borne by UMHE (since CIF means that the seller's obligation is to deliver the goods on board a vessel, and risk passes from seller to buyer when the goods cross the vessel's rail at the time of loading), and whether UMHE breached its obligations by refusing to accept the goods.

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(6) Whether Eonmetall took all reasonable steps to mitigate its losses.

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(7) Whether UMHE must indemnify Eonmetall against the judgment sum in Suit 1. [44] I note here that UMHE did not pose the issue of whether its counterclaim against Eonmetall in Suit 70 should be allowed. An example of an issue to be tried that UMHE could have posed (but did not) is: whether Eonmetall is liable to indemnify UMHE for all UMHE's costs and expenses attributable to the two shipments, and if yes, how much is to be paid? Or, whether Eonmetall is liable to pay UMHE any general damages and how much is to be paid? THE APPLICABLE LAW [45] Bill of Lading as contract of carriage. A bill of lading constitutes the contract of carriage between the shipper (here: Eonmetall) and the carrier (COSCO1). This principle is affirmed in P T Karya Sumiden Indonesia v Oceanmasters Marine Services Sdn Bhd & Anor [2016] 7 MLJ 589 (HC); [2014] 6 CLJ 251; [2014] AMEJ 0278; [2015] MLRHU 1332 (PT Karya Sumiden Indonesia), at paragraph [67]. [46] Agency-general principles. Under Sections 135,139,140, 141,164 and 190 of the Contracts Act 1950-an agent is a person authorised to act on behalf of another to affect the principal's legal relations with third parties. Such authority may be express or implied, and may arise by conduct rather than express appointment. [47] The existence of agency is determined by substance, not labels—the court examines what the intermediary was authorised to do in practice. This is affirmed by Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Mangal) Ltd and Another [1965] 2 QB 480 (UKCA) (Freeman & Lockyer), at page 503; and Chew Hock San & Ors v Connaught Housing Development Sdn Bhd [1985] 1 MLJ 350 (FC); [1985] CLJ Rep 64; [1984] 1 MLRA 555 (Chew Hock San), at MLJ page 353. [48] Principal's liability for agent's acts. Where a principal clothes a person with authority to act as its sales representative, the principal bears responsibility for acts and representations made by the agent within the scope of that authority—even when those acts turn out to be unauthorised or contradictory. This is established by Annie Solomon v BHMF Realty Sdn Bhd and Ors [2011] 1 BLR 329 (HC); [2010] 18 MLRH 126; [2010] MLJU 792; [2010] CLJU 832 (Annie Solomon), and Teratai Sanjung Holdings (M) Sdn Bhd v Lembaga Pemasaran Pertanian Persekutuan [2019] 7 MLJ 156 (HC); [2018] 5 AMR 511; [2018] 9 CLJ 798; [2018] MLRHU 818 (Teratai Sanjung). [49] Joint and several liability. In Choo Ah Kow v Yeow Yew Thiam [1989] 1 MLJ 187 (SC);[1989] 1 CLJ Rep 14;[1988] 1 MLRA 267 (Choo Ah Kow), at MLJ page 188, the Supreme Court held that "joint liability arises when two or more persons promise to do the same thing"; there is only one obligation; the discharge of liability by one discharges the liability of the other(s). And "several liability arises when two or more persons make separate promises to another", which gives rise to independent obligations; the discharge of liability by one person does not discharge the liability of the other(s). [50] In Herukh Thakurdas Jethwani & Anor v Bank Simpanan Nasional [2021] 8 MLJ 407 (HC); [2021] 2 CLJ 291; [2021] 2 MLRH 154 (Herukh Thakurdas), at paragraphs [31] -[33], the court held that a joint and several obligation entitles the creditor to proceed against any one obligor independently, and in full. [51] Transfer of liabilities under the UK Bills of Lading Act 1855. Section 1 of the English Bills of Lading Act 1855-applicable in Malaysia by Section 5 of the Civil Law Act 1956-renders a consignee (here: UMHE) subject to the same liabilities as the shipper (Eonmetall) when property in the goods passes to the consignee. [52] In Effort Shipping Co Ltd v Linden Management SA; The Giannis NK [1998] 1 All ER 495 (HL) (Effort Shipping Co), at page 503, paragraphs E-G, the House of Lords held that a consignee's liability is additional to, not a substitution for, the shipper's liability under a bill of lading. In other words, the shipper "remains liable" to the carrier under a bill of lading, even when rights over the goods pass to the consignee. [53] Further, the Court of Appeal in Minmetals South-East Asia Corp Pte Ltd v Nakhoda Logistics Sdn Bhd [2018] 6 MLJ 152 (CA); [2019] 3 CLJ 198 (Minmetals), at paragraphs [58] and [59] held that "discharge" from a vessel and "delivery" (the transfer of possession of the goods) to a consignee are distinct events; the one does not equal, or necessarily mean, the other. [54] Late payment interest—the Agromate case. In Agromate (M) Sdn Bhd v Felcra Niaga Sdn Bhd [2022] 5 MLJ 501 (CA); [2023] 1 MLRA 559; [2022] AMEJ 0978; [2022] CLJU 1655 (Agromate (CA), at paragraphs [10]-[13] and [22]-[26], the Court of Appeal held-first, that a defendant who fails to plead that a late payment interest clause was unilaterally imposed, and does not specifically dispute the clause itself, cannot subsequently resist the interest. And second, that an invoice together with other transactional documents may collectively constitute the contract in writing, and silence upon receipt of an invoice carrying an interest clause amounts to deemed knowledge and acceptance of the clause. [55] Mitigation. The Federal Court in Kabatasan Timber Extraction Co v Chong Fah Shing [1969] 2 MLJ 6 (FC); [1969] 1 MLRA 408; [1969] CLJU 63 (Kabatasan Timber), affirmed the duty to mitigate in a breach of contract case. [56] The Singapore Court of Appeal in The "Asia Star" [2010] SGCA 12, at paragraphs 30 and 31, held that the test for whether the aggrieved party has satisfied its duty to mitigate its damages is the "reasonableness inquiry" test. The "central question" to ask in the reasonableness inquiry is "what a reasonable and prudent man in the trade would have done in the ordinary course of his business if he had been in the aggrieved party's shoes"? [57] British Westinghouse Electric and Manufacturing Co Ltd v Underground Railways Co of London Ltd [1911-13] All ER Rep 63 (HL); [1912] AC 673 (British Westinghouse), and Malayan Cement Industries Sdn Bhd v Golden Island Shipping (L) Bhd [2017] 4 MLJ 490 (CA); [2018] 1 CLJ 228; [2017] 4 MLRA 526 (Malayan Cement Industries), at paragraph [7], stand for the proposition that a party who fails to mitigate cannot recover loss attributable to that failure. ANALYSIS AND FINDINGS [58] To keep to the structure that I intend for this judgment, I will address several related agreed issues to be tried at the same time. SUIT 1: COSCO'S CLAIM AGAINST EONMETALL Issues (1) to (5) of ITBT(1): (1) whether there was a contract of carriage between COSCO1 and Eonmetall; (2) whether CPW is Eonmetall's agent; (3) whether Eonmetall breached the contract of carriage; (4) whether Eonmetall is jointly and severally liable with UMHE to Cosco; and (5) whether Eonmetall is liable to pay damages under Invoice 2 (DND charges and other auction charges) Eonmetall's submissions [59] Eonmetall does not meaningfully contest that the Bill of Lading is the contract of carriage or that CPW was its agent. Eonmetall's principal defence is that UMHE, as consignee and co-Merchant, is the party who ought to bear the charges, and that Invoice 2 is inflated by unilaterally imposed interest and unjustified other charges. [60] Eonmetall argues that the other charges of RM188,670.85 were not in an earlier invoice (Invoice 1) and are therefore an afterthought. [61] Eonmetall also argues that the auction proceeds should have been credited against the claim. Findings [62] I answer Issues (1) and (2) in ITBT(1) in the affirmative. [63] The Bill of Lading is the contract of carriage between COSCO1 and Eonmetall. CPW (Eonmetall's freight forwarder) was Eonmetall's agent under section 135 of the Contracts Act 1950, and the Bill of Lading binds Eonmetall as principal under section 179 of the Contracts Act 1950. [64] The proposition that a bill of lading evidences the contract of carriage between shipper and carrier is confirmed by P T Karya Sumiden Indonesia (HC). The parties' Agreed Facts state that Eonmetall engaged CPW to arrange the shipment. DW1/Ang verified that CPW had acted on Eonmetall's behalf for seven to eight years. DW3/Yeoh verified that Eonmetall engaged CPW as its forwarding agent. Both DW1/Ang and DW3/Yeoh confirmed that the Bill of Lading is the contract of carriage between COSCO1 and Eonmetall. [65] Issues (3) and (4) in ITBT(1) are also answered in the affirmative. [66] Eonmetall is a "Merchant" under Clause 1 of the Bill of Lading, as admitted by DW1/Ang and DW3/Yeoh. [67] Under clauses 13(1), 14(5), and 23(5) of the Bill of Lading, all Merchants are jointly and severally liable for DND, other charges, and all losses arising from a consignee's refusal to take delivery. Eonmetall's argument that UMHE should instead bear these charges misunderstands the nature of joint and several liability. [68] As Choo Ah Kow (SC) establishes, and Herukh Thakurdas (HC) confirms—Cosco may proceed against Eonmetall alone for the full sum, independently of any rights Cosco might have against UMHE. The determination of the Eonmetall-UMHE dispute does not affect Eonmetall's liability to Cosco. [69] Eonmetall's reliance on Halleen Australian Livestock Traders Pte Ltd v SPH Marketing Sdn Bhd & Anor [2010] 2 MLJ 533 (HC); [2010] 2 CLJ 1046; [2009] 3 MLRH 273; [2009] AMEJ 0252 (Halleen Australian Livestock Traders), at paragraphs [29]----[31]----to argue that UMHE, as holder of the Bill of Lading upon discharge, was the owner of the goods, and therefore the liable Merchant----is misplaced. I say so for three reasons. [70] First, Halleen Australian Livestock Traders (HC) concerned a claim in trespass to goods in tort, not a claim for DND charges under the contractual terms of a bill of lading. It provides no guidance on a Merchant's contractual obligations under a bill of lading. [71] Second, the consignee in Halleen Australian Livestock Traders (HC), actually took delivery of the goods. In our case, UMHE surrendered the original Bill of Lading and submitted a statement of abandonment to Cosco through COSCO UAE—conduct diametrically opposed to taking delivery. [72] Third, and critically, the Court of Appeal in Minmetals (CA) held that "discharge" of goods from a vessel and "delivery" of goods to a consignee are distinct events; they are not the same act. [73] The goods' discharge at Jebel Ali did not constitute delivery to UMHE. Since property in the goods never passed to UMHE UMHE having declined delivery-UMHE's liability under Section 1 of the English Bills of Lading Act 1855 was never engaged, as Effort Shipping Co (HL) elaborates. [74] Eonmetall, as the shipper who contracted with COSCO1 and who failed or refused to give any instructions for re-export or consignee amendment, remains the sole Merchant liable to Cosco. [75] Issue (5) is also answered affirmatively: Eonmetall is liable to pay the DND charges and other charges related to the auction. [76] Other charges. PW2/Hashini confirmed at trial that Invoice 2 superseded Invoice 1. The Other Charges of RM188,670.85 represent auction process charges imposed on COSCO1, and charges that would have been collected from the consignee at the port of discharge. These are charges directly flowing from the abandonment of the goods, and they are properly included in Invoice 2. [77] Auction proceeds. COSCO1 did not own the goods. As PW1/Neoh confirmed, it owned the containers. PW2/Hashini confirmed COSCO UAE received no auction proceeds. The written confirmation from COSCO UAE is clear—the port authority retains proceeds from abandoned goods as a matter of UAE port practice. Eonmetall, as shipper and owner of the goods, could have approached the port authority for the proceeds, but it did not. Issue (6) of ITBT(1): (6) whether Eonmetall is liable to pay the late payment interest (LPI) Eonmetall's submissions [78] Eonmetall objects to the LPI. Eonmetall argues that the 0.1% daily interest rate was imposed unilaterally, relying on: (i) the High Court judgment in Agromate (M) Sdn Bhd v Felcra Niaga Sdn Bhd [2019] MLJU 1031 (HC); [2019] AMEJ 1086; [2019] CLJU 1395; [2019] MLRHU 1044 (Agromate (HC)); (ii) Kienson Hardware Sdn Bhd v Sanjung Sepang Sdn Bhd [2025] MLJU 2689 (HC); [2025] AMEJ 2097; [2025] CLJU 2144; [2025] MLRHU 1863 (Kienson Hardware), and (iii) Ahmad Norazli Yais Razali & Anors v Transwater API Sdn Bhd [2024] MLJU 3117 (HC); [2024] AMEJ 2645; [2024] CLJU 2626 (Ahmad Norazli). Findings [79] I find for Cosco in this LPI issue. [80] Firstly, Cosco's claim for the LPI is contained in paragraph 19 and prayer 21(b) of its Statement of Claim (SOC). Paragraph 19 pleads that both the Invoices contain the LPI term, i.e. that the contract between Cosco and Eonmetall contains the LPI term. [81] In Eonmetall's Defence, Eonmetall pleads, at paragraph 19(a) which answers paragraph 19 of the SOC concerning the LPI clause that Eonmetall "denies the allegations" in paragraph 19 of the SOC and puts Cosco to strict proof. So, Eonmetall merely denies that the Invoices contain the LPI clause, and puts Cosco to strict proof that the Invoices contain the LPI clause. But it is a fact that the Inovices contain the LPI clause. [82] Then, Eonmetall pleads, at paragraph 19(d) of its Defence, that the interest at 0.1% calculated daily imposed on the outstanding sum "is also not proportionate and/or not reasonable compared to the current market rate". [83] Eonmetall's paragraph 19(d) challenged only the rate of interest, not the clause itself. The Court of Appeal in Agromate (CA), at paragraphs [10]-[13], holds that a defendant who fails to plead that a LPI clause was unilaterally imposed-cannot subsequently resist the interest. At paragraphs [22]-[26], the Court of Appeal further held that silence upon the receipt of invoices carrying an interest clause amounts to acceptance of the term contained in the clause. [84] Secondly, the LPI term appears on the two Invoices. There was no complaint about the imposition of LPI or the rate that was charged. The first denial and protest against LPI—and even then, the protest was only about the rate that was charged—only surfaced in Eonmetall's Defence, i.e. after Suit 1 was filed. [85] Invoice 1 (which contained the LPI term) was dated 20.10.2020. Invoice 2 (which also contained the LPI term) was dated 22.3.2021. Cosco's letter of demand (LOD) dated 29.3.2021 also made reference to the LPI term. [86] Even Eonmetall's letter dated 7.4.2021, replying to Cosco's LOD, did not raise their specific defence against the LPI term, or even deal with the LPI issue. [87] Thirdly, the cases Eonmetall cites against LPI are distinguishable. One—the High Court judgment in Agromate (HC) was overturned by the Court of Appeal in Agromate (CA). [88] Two-Kienson Hardware (HC) involved a defendant who had actively objected to the interest in correspondence and made no payments towards it. Here, Eonmetall made no contemporaneous objection to the interest clause. In fact, DW3/Yeoh confirmed that Eonmetall's objection was to the invoices as a whole, not to the interest clause specifically. [89] Three-Ahmad Norazli (HC) concerned an unconscionable rate of 10% per week (520% per annum)an arbitrary, exorbitant charge bearing no relation to our case. A daily rate of 0.1% (approximately 36.5% per annum: 0.1 x 365 days) in an international commercial shipping context is not of the magnitude to be considered in that category. [90] I answer Issue (6) in ITBT(1) in the affirmative: Eonmetall is liable to pay the LPI. Eonmetall's further submissions during oral submissions [91] During oral submissions, Eonmetall wants to argue one final point on the LPI. Eonmetall argues that if I find that Eonmetall's pleadings are insufficient concerning the LPI, then I should invoke the rule on sufficiency of pleadings, i.e. that all Eonmetall had to do was to sufficiently plead its case such that it does not take the other party (Cosco) by surprise. Eonmetall argues that it has cross-examined PW1/Neoh and PW2/Hashini extensively on Cosco's entitlement to the LPI. Cosco did not object to any of these questions. Eonmetall did not take Cosco by surprise. Eonmetall has not breached the sufficiency-of-pleadings rule. [92] I do not accept this argument. The issue here is not whether Eonmetall's pleadings were sufficient concerning the LPI. The issue is whether Eonmetall has pleaded the material facts that surround or give rise to the defence that the LPI term was unilaterally imposed, and hence wrongly added to the terms of the Bill of Lading. [93] I am of the view that Cosco's alleged conduct at trial of not objecting to Eonmetall asking cross-examination questions on this issue does not improve Eonmetall's pleadings, does not permit Eonmetall to raise an issue that its pleadings do not give rise to, and does not amount to a waiver of the application of the rule of evidence that a party cannot lead evidence or raise an issue for determination outside of the parameters of the material facts that it had pleaded (commonly known as the principle that a party is bound by its pleadings). Here, Eonmetall only pleaded a challenge to the quantum of the LPI. THE THIRD PARTY CLAIM IN SUIT 1, WHICH IS THE SAME CLAIM AS SUIT 70: EONMETALL'S CLAIM AGAINST UMHE Issue (2) of ITBT(2): (2) whether Syed is Eonmetall's agent Eonmetall's submissions [94] Eonmetall submits that Syed was an independent dealer or distributor, not its agent, relying on Leong Hin Enterprise Sdn Bhd v Chevron Malaysia Ltd [2018] MLJU 1747 (HC); [2018] CLJU 1713; [2018] MLRHU 1415 （Leong Hin Enterprise) for the distinction between a dealer and an agent. Findings [95] I find that Syed and Eonmetall MENA were Eonmetall's agents, and that the representations Syed made to UMHE are binding on Eonmetall. These are my reasons. [96] First—the substance of Syed's functions. Under Freeman & Lockyer (UKCA), the existence of agency is determined by substance, not labels. The court examines what the intermediary was actually authorised to do—including whether he was entrusted with dealings on orders, pricing, terms of sale, and documentation. [97] DW3/Yeoh's own cross-examination satisfies this test against Eonmetall. DW3/Yeoh confirmed that Syed received material lists from customers, obtained UMHE's acknowledgement of the Proforma Invoice, transmitted confirmations back to Eonmetall, and handled negotiations on pricing, terms, and documentation. [98] I find that those are precisely the functions of an agent, under sections 135 and 139 of the Contracts Act 1950. It is Eonmetall's own witness who described Syed in terms that satisfy the legal definition of agency. [99] The label "dealer" or "distributor" which Eonmetall seeks to apply to Syed is directly contradicted by DW3/Yeoh's evidence of what Syed actually did. Eonmetall's reliance on Leong Hin Enterprise which identifies the hallmarks of a genuine distributor who purchases and resells on his own account, taking the commercial risk is futile precisely because Syed displayed none of those attributes. [100] A genuine distributor buys goods from the supplier, pays for them, and resells them to his own customers at a mark-up. Syed did none of this: the goods were shipped by Eonmetall directly to UMHE, there was no intermediate purchase by Syed or Eonmetall MENA, and the Proforma Invoice named UMHE—not Eonmetall MENA—as the buyer. [101] Second—the outward presentation Eonmetall permitted Syed and Eonmetall MENA to adopt. The "Eonmetall" brand is a registered trademark of Eonmetall's sister company, Eonmetall Technology Sdn Bhd. Eonmetall permitted Eonmetall MENA to incorporate that trademark in Eonmetall MENA's company name. [102] Further, Syed used an email address at the domain name "eonmetallmena.com". Syed's email signature carried the Eonmetall Group logo, with a hyperlink to Eonmetall Group Berhad's website. [103] All of Eonmetall's own witnesses used the @eonmetall.com domain name. From UMHE's perspective, Syed appeared to be part of the same Eonmetall business group as the company with which UMHE was dealing. No genuinely independent dealer would be permitted by its supplier to present itself to the market as part of the supplier's own branded group in this manner. [104] This outward holding-out constitutes some apparent authority precisely as described in Freeman & Lockyer (UKCA), and Chew Hock San (FC), where the Federal Court cites and follows Freeman & Lockyer (UKCA). [105] Third-Eonmetall's own 7.5.2019 email to UMHE. I reiterate that in this email, Eonmetall told UMHE: "This order being [sic] issued by Eonmetall MENA and trade finance cover by United Motor. Hence you are requested to do the needful procedure by providing assistant [sic] to proceed with custom [sic] clearance. In consideration of you doing so on our request, Eonmetall MENA will take full responsibility & will not hold you... liable for any damage and claims whatsoever." [106] Eonmetall was not commenting neutrally on Eonmetall MENA's affairs. It referred to Eonmetall MENA's obligations and, on Eonmetall MENA's behalf, offered an indemnity to UMHE in exchange for UMHE's cooperation in clearing the goods through customs. Only a principal exercises the power to make such commitments on behalf of its agent. This email is independent evidence of the principal-agent relationship between Eonmetall and Syed/Eonmetall MENA. [107] Since Syed was Eonmetall's agent, the consequences follow from Annie Solomon (HC) and Teratai Sanjung (HC) where a principal clothes its representative with authority and that representative makes contradictory representations to a third party, the principal bears responsibility for those acts-not the innocent third party. [108] Syed told Eonmetall that UMHE had ordered the goods. He told UMHE that the goods belonged to Eonmetall MENA and that he was changing the consignee details. Both representations were made within the scope of his authority as Eonmetall's sales agent. Both are therefore Eonmetall's representations. The irreconcilable contradiction between the two representations is Eonmetall's problem, not UMHE's. [109] Issue (2) in ITBT(2) is answered "Yes". Syed was Eonmetall's agent. Issues (1) and (3) of ITBT(2): whether there is a valid contract of sale between Eonmetall and UMHE; and (2) whether the Proforma Invoice binds UMHE Eonmetall's submissions [110] Eonmetall submits that the Proforma Invoice, returned bearing UMHE's stamp and signature, constitutes a binding sale contract consistent with the established pattern of prior transactions, relying on K.P. Loo Engineering Sdn Bhd v Bekal Hikmat Sdn Bhd [2014] MLJU 1894 (HC); [2014] AMEJ 1509; [2014] CLJU 1650; [2014] MLRHU 1041 (K.P. Loo Engineering), at paragraph 24. Findings [111] I find that no valid contract of sale was concluded between Eonmetall and UMHE under the Proforma Invoice. The Proforma Invoice does not bind UMHE. My reasons are as follows. [112] First-there is no evidence of any communication from UMHE authorising Syed to place this order. The documentary chain consists merely of: Syed emailing Eonmetall a material list on 29.1.2019; Eonmetall issuing the Proforma Invoice to Syed on 31.1.2019; and Syed returning the Proforma Invoice bearing a stamp on 11.2.2019. [113] Syed's email transmitting the returned Proforma Invoice does not attach (or append) any email from UMHE directing him to place the order, or any email from UMHE returning the signed Proforma Invoice to him to forward to Eonmetall. There is no purchase order from UMHE, no email from UMHE to Syed authorising the transaction, and no direct communication of any kind from UMHE to Eonmetall before the shipments arrived at Jebel Ali. The entire evidential foundation for the alleged contract (between UMHE and Eonmetall) rests on Eonmetall's own agent presenting Eonmetall with a document that purports to bear UMHE's stamp. [114] In other words, the only document purporting to show UMHE's consent—the stamped Proforma Invoice—was procured by Eonmetall's own agent, Syed, without any supporting or corresponding communication from UMHE. [115] Second—the stamp itself does not establish UMHE's consent. TPW1/Saifdeen testified that UMHE's physical stamp could not have fallen into Syed's hands, and that the stamp on the Proforma Invoice appears to have been digitally inserted rather than physically affixed. UMHE demonstrated in its submission in reply that a stamp image can readily be digitally copied and pasted onto a document. [116] While Eonmetall argues that UMHE cannot exclude the possibility that one of its multiple physical stamps was misused, the burden of proving a valid contract lies on Eonmetall-not on UMHE to disprove the stamp's authenticity. On the evidence and the lack of evidence as a whole, I am not satisfied that the stamp on the Proforma Invoice represents UMHE's genuine, authorised act of acceptance. [117] Third—and most decisively, when UMHE queried about the goods, Eonmetall's own agent told UMHE that the goods did not belong to UMHE. Syed's email to Ayesha Hussain of UMHE on 23.4.2019 at 1.40 p.m. stated plainly that the shipment belonged to Syed and Eonmetall MENA and that he was changing the consignee details. Since Syed was Eonmetall's agent, that statement is Eonmetall's own admission-through its agent-that those goods were not UMHE's. [118] Eonmetall cannot simultaneously rely on its agent's act of returning the stamped Proforma Invoice as UMHE's contractual consent, and disown the same agent's clear and contemporaneous statement to UMHE that the goods did not belong to UMHE. The irreconcilable inconsistency in Syed's two representations—telling Eonmetall that UMHE had ordered the goods, while telling UMHE that the goods belonged to Eonmetall MENA—is attributable to Eonmetall as Syed's principal. The inconsistency must fall on Eonmetall, not UMHE. [119] Fourth-LOC Interior's letter to Cosco UAE dated 17.6.2019 provides further independent confirmation. LOC Interior stated that it was "the original owner" of the goods, that the consignee's name had been "wrongly issued from the shipper without our knowledge," and that it had been "cheated by an agent." This is contemporaneous documentary evidence-produced at trial and not disputed by Eonmetall-that the goods were always intended for LOC Interior, not UMHE. [120] Eonmetall's subsequent conduct in releasing the First Shipment to LOC Interior (for some part payment) is inconsistent with its case that UMHE ordered both shipments under the same Proforma Invoice. Having recognised LOC Interior as the buyer of the First Shipment by conduct, Eonmetall cannot maintain that UMHE ordered both shipments. [121] Fifth—Eonmetall's reliance on K.P. Loo Engineering (HC)the principle that where parties agreed to follow an established business practice and a party performed in reliance on it, that party may recover what is due—does not assist Eonmetall. That principle requires a mutually agreed practice giving rise to a valid obligation. [122] Here, the mechanism of relying on a returned stamped Proforma Invoice cannot constitute a valid contractual foundation in the 2019 transaction, when:

Subsection

(1) the stamp was procured by Eonmetall's own agent without direct authorisation from UMHE;

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(2) that same agent immediately told UMHE that the goods did not belong to UMHE; and

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(3) an independent third party (LOC Interior) confirmed the goods were always intended for it. [123] Issues (1) and (3) in ITBT(2) are answered in the negative: there is no valid sale contract between Eonmetall and UMHE, and the Proforma Invoice does not bind UMHE. Issues (4) to (7) of ITBT(2): (4) whether Eonmetall's liability ended on delivery; (5) whether UMHE breached its obligations by refusing to accept the goods; (6) whether Eonmetall mitigated its losses; and (7) whether UMHE must indemnify Eonmetall against the judgment sum in Suit 1 Parties' submissions [124] UMHE submits that even if there were a sale contract (which UMHE denies), Eonmetall is not entitled to an indemnity because it failed to mitigate its loss. From 22.4.2019, UMHE had urgently and repeatedly informed Eonmetall-through multiple emails copied to DW1/Ang, DW2/Teh and Cindy Lee-that the goods did not belong to UMHE and that the free storage periods were expiring. [125] UMHE points out that Cosco had recommended re-export of the Second Shipment (here: to ship the goods back to Penang). Despite all this, Eonmetall left the goods idle for over 16 months. [126] UMHE argues that after LOC Interior emerged as the actual buyer, Eonmetall released the First Shipment to LOC Interior on the receipt of a part payment-effectively acknowledging LOC Interior as the true buyer of the goods. But Eonmetall then insisted on the full prior payment of the entire outstanding Proforma Invoice amount before it would release the Second Shipment. When LOC Interior declined, Eonmetall took no further steps. It did not amend the consignee details. It did not arrange re-export. It did not seek another buyer. [127] UMHE submits that the DND and auction charges were entirely caused by Eonmetall's own prolonged inaction. [128] Eonmetall, however, submits that it acted reasonably: it was entitled to require full payment before releasing the Second Shipment to LOC Interior, and its mitigation efforts were constrained because it honestly believed UMHE had ordered the goods. Findings [129] Issues (4) [whether Eonmetall's liability ended on delivery] and (5) [whether UMHE breached its obligations by refusing to accept the goods] in ITBT(2) are premised on a valid contract of sale between Eonmetall and UMHE. [130] Given my findings above that there is no valid sale contract between Eonmetall and UMHE, and that Syed was Eonmetall's agent, whose misattribution of the goods to UMHE binds Eonmetall, it follows that Issues (4) and (5) do not arise. There is no valid contract under which UMHE bore the risk of the goods or was obliged to accept the goods. [131] Concerning Issue (6) on mitigation, I would, in any event, find that Eonmetall failed to take the reasonable steps required of it, even if I were wrong on the contract issue. [132] The duty to mitigate is well established. The Federal Court in Kabatasan Timber (FC) affirmed that a party who suffers loss through another's breach must take all reasonable steps to mitigate its own losses; it cannot claim loss attributable to its own failure to mitigate. [133] The Singapore Court of Appeal in The "Asia Star" (SGCA) held that the standard for the duty to mitigate is what a reasonable and prudent business person in the trade would have done. [134] The House of Lords in British Westinghouse (HL) and the Court of Appeal in Malayan Cement Industries (CA) held to the same effect. [135] Applying this standard to the facts of these two suits, Eonmetall's conduct falls short of what a reasonable business person would have done. I make four findings. [136] First—from 22.4.2019, Eonmetall's own personnel—DW1/Ang, DW2/Teh and Cindy Lee—were copied on UMHE's emails expressly disavowing the goods and urging urgent corrective action. Eonmetall was therefore on actual notice of the problem from before the Second Shipment even arrived at Jebel Ali on 1.5.2019. [137] A reasonable shipper, upon receiving such notice, would have taken immediate steps to investigate and, at a minimum, to contact Cosco about the options for the goods. Eonmetall did neither. [138] Second—when LOC Interior came forward as a willing buyer, Eonmetall released the First Shipment to it. By doing so, Eonmetall implicitly recognised that the goods were destined for LOC Interior, not UMHE. Having made that recognition in respect of the First Shipment, a reasonable business person would have moved swiftly to resolve the Second Shipment on the same basis. Instead, Eonmetall insisted on full prior payment of the entire outstanding Proforma Invoice balance for the Second Shipment-a commercial stance that, understandably, caused the deal to collapse-and then did nothing further. [139] Third-after negotiations with LOC Interior broke down, Eonmetall was left with a Second Shipment whose consignee had expressly disowned it, whose nominated alternative buyer had walked away, and whose free storage period had long since expired. The reasonable course was to instruct Cosco to arrange re-export back to Penang. This is precisely what Cosco repeatedly recommended. Eonmetall did not act on those recommendations. It allowed 16 months to elapse, and the goods to be auctioned. [140] Fourth—Eonmetall's assertion that it genuinely believed UMHE had ordered the goods does not explain its passivity. Even on Eonmetall's own version, UMHE was refusing delivery, and the clock was running. A party that truly believed its counterpart was in breach of a valid sale contract would take legal and commercial steps to resolve the deadlock—not leave goods idle at a foreign port for 16 months, accruing charges that an objective bystander could see mounting inevitably towards the figure now claimed against it. [141] I therefore answer Issue (6) in ITBT(2) in the negative Eonmetall did not take sufficient reasonable steps to mitigate its loss. I likewise answer Issue (7) in ITBT(2) in the negative—UMHE is not liable to indemnify Eonmetall for the judgment sum in Suit 1. [142] There is no valid sale contract binding UMHE; Syed's misattribution is Eonmetall's responsibility as his principal; and Eonmetall failed to mitigate its own loss—loss which, in truth, it self induced, by its agent's conduct and its own subsequent inaction. UMHE's counterclaim in Suit 70 [143] UMHE counterclaims against Eonmetall in the tort of negligence for wrongly attributing the 2019 transaction to UMHE. I allow the counterclaim. These are my reasons. [144] First—Eonmetall's negligence is established on the facts as I have found them. Eonmetall appointed Syed as its sales agent in the UAE and clothed him with apparent authority by permitting him to operate under the Eonmetall brand, carry the Eonmetall logo, and use an Eonmetall-domain name email address. [145] Second-Eonmetall then relied on a stamped Proforma Invoice returned by Syed-without any verification from UMHE-to manufacture and ship 17 40-foot containers of goods consigned to UMHE, a company in a foreign jurisdiction that did not consent to the transaction. A reasonable shipper exercising ordinary care would not have shipped goods to a consignee's name in a foreign port on the sole strength of a sole document returned to it by its own agent, without any verification from the consignee. I find that Eonmetall failed to exercise that reasonable duty of care. [146] Third-as a direct result, UMHE-an innocent party with no knowledge of that 2019 transaction-was confronted, from 22.4.2019 onwards, with shipments arriving at Jebel Ali consigned in its name. UMHE was compelled to engage urgently with two separate carriers (PIL and Cosco), to issue multiple emails to Syed and Eonmetall's personnel seeking correction, to warn Eonmetall of expiring free storage periods, and to manage the commercial and reputational consequences of goods consigned to its name meant for an end customer that UMHE discovered was a "government concern". [147] None of this would have fallen on UMHE had Eonmetall exercised reasonable care. The damage UMHE suffered—the expenditure of time, resources, and effort between 22.4.2019 and

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(1) a Declaration that the goods shipped pursuant to the following bills of lading (Erroneous Shipments) were "not ordered", "requested" or "solicited" by UMHE:

Subparagraph

(ii) Bill of Lading No. COSU6172478450 issued by COSCO1;

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(2) a Declaration that UMHE is "not liable for" any costs or expense related to the Erroneous Shipments;

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(3) an Order that Eonmetall "indemnifies" UMHE for any costs or expense related to the Erroneous Shipments; and

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(4) general damages. [150] In Suit 70, at paragraph 17 of UMHE's counterclaim, UMHE pleads that Eonmetall's "failure" or "refusal" or "omission" to "change the consignee particulars" for the two shipments, or to "take the necessary remedial steps" concerning the shipments—had caused it loss and damage. [151] But UMHE has produced no evidence to prove that it has suffered loss and damage (monetary or non-monetary). UMHE gave no evidence of any specific loss and damage suffered by UMHE beyond the fact of being wrongly named as the consignee and having to deal with the consequences. [152] On the evidence produced at trial, there is simply no evidential basis to award a quantified sum of damages to UMHE. The evidence discloses no proven quantum, or even some evidential material on which an assessment or an inference of damages can be made—no invoices, receipts, or evidence of what UMHE spent or lost as a result of Eonmetall's "failure", "refusal" or "omission". [153] Proof of damage is a necessary element before substantial damages can be awarded. Where liability is established but no specific loss or damage is proved, or there is no evidence or evidential material on which an inference can be made—the court may award nominal damages to mark the wrongdoing and vindicate the plaintiff's right. [154] Most significantly, at the oral submissions hearing, in response to a question which I asked UMHE's counsel, UMHE concedes that there is no evidence that proves that UMHE suffered any loss and damage. [155] As such, I award UMHE the sum of RM100.00 as nominal damages. CONCLUSION AND JUDGMENT Conclusion [156] For these reasons, I hold as follows. In Suit 1, Cosco's claim against Eonmetall succeeds in full. Eonmetall, as the shipper under the Bill of Lading and as a Merchant under its terms and conditions, is liable to Cosco for the DND and auction charges under Invoice 2, together with the contractual interest provided for in it. [157] Also in Suit 1, Eonmetall's Third Party claim against UMHE fails there is no valid sale contract between Eonmetall and UMHE Syed was Eonmetall's agent and not UMHE's agent. [158] In Suit 70, Eonmetall's claim against UMHE for the price of goods sold and delivered likewise fails. UMHE's counterclaim against Eonmetall for the tort of negligence succeeds. Judgment [159] These are the terms of my Judgment. In Suit 1 (PA-27NCC-1 02/2023), the main shipping claim by Cosco against Eonmetall: Judgment for the Plaintiffs (Cosco) against the Defendant (Eonmetall) for:

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(1) the sum of RM1,194,026.10 under Invoice No. OFTE210322-9970 dated 22.3.2021 to be paid by Eonmetall to the First Plaintiff (COSCO1) as the principal amount due under Invoice 2;

Subsection

(2) interest on the sum of RM1,194,026.10 at the daily rate of 0.1%, calculated from 14 days from 22.3.2021 (i.e., from 6.4.2021) until the date of full and final payment to be paid by Eonmetall to COSCO1; and

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(3) costs of RM130K to be paid by Eonmetall to Cosco (RM50K for cause papers and getting-up + 8 days of trial x RM10K per day). [160] Also in Suit 1, the Third Party claim by Eonmetall against UMHE:

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(1) Eonmetall's Third Party claim against UMHE is dismissed;

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(2) costs of RM60K to be paid by Eonmetall to UMHE (RM20K for cause papers and getting-up + 8days of trial x RM5K). [161] In Suit 70 (PA-22NCVC-70-05/2020), Eonmetall's goods sold and delivered claim against UMHE:

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(1) Eonmetall's claim against UMHE for the price of goods sold and delivered under the Proforma Invoice dated 31.1.2019 is dismissed. [162] Also in Suit 70, UMHE's counterclaim against Eonmetall:

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(1) Judgment for UMHE on its counterclaim against Eonmetall;

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(2) a Declaration that the goods shipped pursuant to the following bills of lading ("Erroneous Shipments") were not ordered, requested or solicited by UMHE—

Subparagraph

(ii) Bill of Lading No. COSU6172478450 issued by COSCO1;

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(3) a Declaration that UMHE is not liable for any costs or expense attributable to or related to or stemming from or as a consequence of the Erroneous Shipments;

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(4) I order that Eonmetall pays nominal damages in the sum of RM100.00 to UMHE.

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(5) Costs of RM70K to be paid by Eonmetall to UMHE (RM30K for cause papers and getting-up + 8 days of trial x RM5K per day). Dated: 18 June 2026 KENNETH ST JAMES HAKIM MAHKAMAH TINGGI MALAYA PULAU PINANG Solicitors for the Plaintiffs Oon Thian Seng, Ng May Messrs. T S Oon & Partners Solicitors for the Defendant Chuah Jo-Shua, Sara Mohamed Hear Solicitors for the Third Party : Messrs. Zaid Ibrahim & Co. David Cheong Peng Leong, Angie Loo Yi-Shing Messrs. David Lai & Tan Legislation referred to: