1st Containers (UK) Limited v Pemilik Kapal atau Vesel MV Hua Xiang 936 Dari Pelabuhan Panama (WA-27NCC-10-03/2025)

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1 In the High Court of Malaya at Kuala Lumpur In the Federal Territory of Kuala Lumpur, Malaysia (Commercial Division) Admiralty Action in Rem No. : WA- 27 NCC - 10 - 03 / 2025 Admiralty Action in Rem against the Ship or Vessel : 9159153) of the port of Panama Between 1st Containers (UK) Limited ... Plaintiff And The Owners of the Ship or Vessel MV (IMO No. : 9159153) of the port of Panama Grounds of Decision

Schedule

Schedule Additional Powers of High Court 11. Res judicata Power to dismiss or stay proceedings where the matter in question is res judicata between the parties, or where by reason of multiplicity of proceedings in any court or courts the proceedings ought not to be continued. 57. In addition to section 25 (2) of the CJA 1964 read together with item 11 of the Schedule (which recognises that a multiplicity of proceedings is regarded as abuse of process), by virtue of Order 92 rule 4 of the ROC 2012, the High Court has inherent powers to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court. Improper exercise of admiralty in rem jurisdiction of the High Court against the subject Vessel 58. When a plaintiff enforces the admiralty jurisdiction in rem of the High Court by serving an admiralty writ in rem on a vessel or by arresting a vessel, it is open to the defendant to dispose of the without troubling itself with a full trial. The defendant could apply under Order 12 rule 10 (read together with Order 70 rule 2) of the ROC 2012 or the inherent jurisdiction of the court to set aside the writ in rem and the warrant of arrest. (See the High Court case of Desert Oasis Petrochemical Trading LLC v The Alpine Mathilde [2024] 1 CLJ 543 at paragraph [73]). 59. The wording of Order 12 rule 10 of the ROC 2012 stipulates that the defendant may dispute the jurisdiction of the court on any ground . This could include an instance where the admiralty jurisdiction in rem of the High Court had been improperly brought against the vessel or where there is an abuse of the process of the court. If a determination of the jurisdictional fact will effectively dispose of the entire action, the court should proceed to make that determination upon an application made under Order 12 rule 10 of the ROC 2012. This is a preferred route than protracting the litigation by allowing the action to proceed to trial where the jurisdictional issue is merged with the liability issue. (See the High Court case of New World P & S [2024] CLJU 3225; [2024] MLRHU 2740 at paragraph [121]). 60. In [2012] 4 SLR 546 at paragraph [112], the Singapore Court of Appeal outlined the various steps and respective standards of proof for invoking admiralty jurisdiction. Namely : (a) prove, on the balance of probabilities, that the jurisdictional facts under the limb it is relying on (in our case, section 20 (2) (d) to (q) of the UK SCA 1981) exist and show an arguable case that its claim is of the type or nature required by the relevant statutory provision (step 1); (b) prove, on the balance of probabilities, that the claim arises in connection with a ship (step 2); (c) identify, without having to show in argument, the person who would be liable on the claim in an action in personam (step 3); (d) prove on the balance of probabilities, that the relevant person was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship (step 4); and (e) prove on the balance of probabilities, that the relevant person was, at the time when the action was brought: (i) the beneficial owner of the offending ship as respects all the shares in it or the charterer of that ship under a demise charter; or (ii) the beneficial owner of the sister ship as respects all the shares in it (step 5). 61. In addition (and in the Malaysian context) the High Court must, by virtue of section 20 (1) (a) of the UK SCA 1981, be able to hear and determine any of the admiralty questions and claims (whether admiralty in personam or in rem in nature which have not been heard or determined by any other competent court or tribunal previously) mentioned in section 20 (2) of the UK SCA 1981. Hence, admiralty in rem action cannot be brought in the High Court for the purpose of obtaining security for an arbitral award or to secure judgment in a foreign court proceeding, or by way of enforcement of an arbitral award or a judgment of a foreign court. 62. jurisdiction and power of the High Court. By virtue of Order 12 rule 10 of the ROC 2012 and under its own inherent jurisdiction and power, the court may writ in rem and the warrant of arrest if it is an abuse of the process of the court. In this regard, I find that P has improperly invoked the admiralty jurisdiction of the court against D based on a relitigation of the cause of action in the Rotterdam suit and to enforce the Rotterdam judgment. P s of an abuse of court process and must be dismissed. 63. The warrant of arrest is reliant upon the existence of a writ in rem. Hence, it stands to reason that setting aside the writ in rem removes the basis of the arrest. Therefore the warrant of arrest would also be set aside. (See the High Court case of Shanti Kant Jhinghan v T [1989] 2 CLJ Rep 457 at 466). The Plaintiff has already established jurisdiction against the Defendant to submit to the Rotterdam District Court (which has seized jurisdiction) in 2022 in the determination and judgment of the Rotterdam suit between the parties based on the same cause of action or dispute and to obtain security for its claim by the arrest of the Vessel AP at Rotterdam 64. There are two distinct purposes for a plaintiff to invoke admiralty in Court. Namely : (a) to find jurisdiction against the defendant in the High Court for its service and execution of the admiralty writ in rem and the warrant whereupon the defendant enters an appearance in the action; and (b) execution of the admiralty writ in rem and the warrant of arrest on the defendant ship would persuade the defendant shipowner 65. invoked or the foreign court had previously seized jurisdiction in the determination of the same cause of action or issues, and security for the claim has been sought previously elsewhere between the same parties, this should preclude the High Court in the subsequent exercise of its jurisdiction in the determination of the same cause of action between the parties. 66. As alluded to earlier, P had previously commenced the Rotterdam suit and arrested the Vessel AP on 12.10.2022 as security for its claim and to compel D in connection with the discharge of the 774 containers on board the Vessel AP by way of a summary proceeding in the Rotterdam District Court. P sought security from D for the release of the Vessel AP from arrest in the sum of USD 1.2 million (plus an increment for costs and interest). In default, the Vessel AP would remain under arrest in the Rotterdam suit. 67. was premised on it being the lawful owner of 774 units of empty containers carried onboard the Vessel AP. At the material time, the Vessel AP was chartered to the Charterer under a time charter applying English law. P claims damages against D in the sum of USD 243,396.50 and EUR 429,925 for breach of wrongful exercise of a contractual lien over the said containers for sums owing by the Charterer under the CP. As well as for an indemnity for liability suffered by P, collection costs of EUR 2,843.73 and costs of proceedings. D submitted to the jurisdiction of the Rotterdam District Court and defended and counterclaimed against P in the Rotterdam suit. 68. P voluntarily lifted the arrest of the Vessel AP without any notice to D and without securing alternate security for release for its claim in the Rotterdam suit thereafter. After more than two years (from 2022 till January 2025), upon hearing witnesses in a full trial on merits in the substantive proceedings between the parties, the Rotterdam District Court granted P a provisional judgment on its claim against D on 15.1.2025. Namely legal costs in the sum of EUR 17,501.03; damages in the sum of EUR 429,950 and USD 109,662.50 plus statutory interest from 11.11.2022 to date of full payment; extrajudicial collection costs of EUR The Rotterdam judgment is pending appeal by D to the Hague Court of Appeal. 69. D has previously submitted to the jurisdiction of the Rotterdam District Court for the determination of the same cause of action and issues vis-à- vis P. Security upon arrest of the Vessel AP was abandoned by P with regard to the Rotterdam suit. In the premises, P has already established the jurisdiction against D to submit to the determination of the Rotterdam suit with regard to the dispute and to obtain security for its claim by the arrest of the Vessel AP at Rotterdam. 70. In the circumstances of the same cause of action and issues against D for the purpose of re - establishing jurisdiction over D in respect of the same dispute (which was heard and determined by the Rotterdam District Court previously and pending appeal at the Hague Court of Appeal) and for fresh security by way of arrest of the subject the Rotterdam judgment) in this action is improper. It is an abuse of the process of the c osure 19 must succeed. There is no admiralty jurisdiction for the High Court under the UK SCA 1981 to arrest the subject Vessel for the Plaintiff to obtain security as enforcement of a foreign judgment or foreign court proceedings 71. In the affidavit leading to the warrant of arrest, P deposed the particulars of the Rotterdam j Hua Xiang The payment to be enforced is the quantum of judgment awarded in the purported wrongful exercise of lien against 774 containers. 72. The admiralty jurisdiction of the High Court cannot be invoked by the arrest of the subject Vessel for the purpose of P obtaining security in the enforcement of a foreign court judgment or as security for foreign court proceedings. In this respect, it is pertinent to note the chronology of events after the granting of the Rotterdam judgment on 15.1.2025, as follows. 73. Shortly after the Rotterdam j judgment sum on or before 24.1.2025, failing which enforcement of the judgment rceable assets worldwide. Upon the expiry of the lawyer, P through its China lawyers, issued a further letter of demand dated 25.2.2025 to D for the settlement of the judgment sum within seven days. Failing which, - going vessels ( De Cheng Hua Xiang Allseas Pioneer ) to be arrested in addition and accounts. 74. In fact, even after the arrest of the subject Dutch lawyer vide an open email dated 13.3.2025 continued to demand D to pay to P within three days what is adjudged in the Rotterdam judgment, together with the increased costs of the Malaysian Court admiralty arrest as a one - time non - negotiable settlement of the matters or to provide security for the amount sought as awarded in the Rotterdam judgment. In default, P threatened that further steps would be taken for the judicial sale of the subject Vessel. 75. In its affidavit leading to the warrant of arrest, P sought security for the release of the subject Vessel in the amount of USD 926,552.73. When requested for a breakdown of the security Malaysia solicitors is what was awarded by the Rotterdam judgment. See a comparison of the reliefs awarded in the Rotterdam judgment against below. Rotterdam judgment Security demanded in Malaysia for the release of the subject Vessel Damages awarded EUR 429,950.00 USD 109,662.50 EUR 429,950.00 USD 109,662.50 Interest awarded Statutory interest from 11.11.2022 to full payment EUR 59,916.40 USD 15,282.20 Collection costs awarded EUR 2,843.57 EUR 2,843.57 Costs of proceedings in the Rotterdam suit EUR 17,501.03 EUR 17,501.03 High Court of Malaya interest at 5 % per annum on principal sum for 3 years EUR 76,531.65 USD 18,741.70 High Court Malaya legal costs USD 150,000.00 Total USD926,552.73 76. It seems to me action and arrest of the subject Vessel, judgment sum within the stipulated deadline. To wit, the first demand on 18.1.2025 through Dutch lawyer, and the second demand on 25.2.2025 through China lawyers. 77. Further, the Malaysian arrest of the subject Vessel for security has been pursued by P with the intention of securing or enforcing the Rotterdam judgment, Appeal. I am inclined to agree with D that this is solely to exert pressure on D to settle the judgment sum the Rotterdam judgment in the Dutch Court of Appeal. I refer to the email exchanges between the Malaysia lawyers concerning the demand and provision of alternative security by way of the said LOU for the release of the subject Vessel from arrest. Having pursued its claim in the Rotterdam suit until obtaining the Rotterdam judgment against D for the same cause of action, I consider that the true purpo subject Vessel is not to obtain security for the satisfaction of any judgment in this action. But to secure enforcement of the Rotterdam judgment. 78. An admiralty action in rem may be brought against maritime property and the property arrested for the purpose of securing the claim that is to be heard and determined in the High Court pursuant to section 20 to 24 of the UK SCA 1981 read together with section 24 (b) of the CJA 1964. There is no power or jurisdiction for the High Court to arrest a vessel in an action in rem to obtain security as enforcement of a foreign judgment or foreign court proceedings. (See the High Court case of Asia Pacific Parcel Tankers Pte Ltd v The Normar Splendour [1999] 6 MLJ 652 at 694; [2003] 8 CLJ 762 at 788). 79. In the present case, it cannot be denied that the security demanded upon arrest in the Malaysian court action corresponds with the Rotterdam judgment. The only difference in the sum awarded by the Rotterdam judgment and the security demanded for the Malaysian proceedings is the computation of anticipated claim for statutory interest at 5 % per annum for three years and legal costs. The explicit reference to the award rendered in the Rotterdam judgment and the request for security in that sum, demonstrates that the Malaysian admiralty in rem action is, in substance, an attempt to enforce the Rotterdam judgment. 80. original writ in rem and warrant of arrest in this action were issued for a claim that purportedly falls under the admiralty jurisdiction, the reliefs sought are essentially to enforce the Rotterdam judgment. When determining whether a claim properly falls within the admiralty jurisdiction, the c (including the reliefs sought). And not simply ization of the claim at face value i.e. by looking at the cause of action alone. 81. for payment of quantum of the Rotterdam judgment is in reality an action for the enforcement of the said judgment, which did not come within section 20 writ in rem and warrant of arrest against the subject Vessel in this action ought to be set aside. This action is a duplication of the Rotterdam suit 82. As mentioned earlier, the High Court (by virtue of section 25 read together with item 11 of the Schedule to the CJA 1964, and inherent powers under Order 92 rule 4 of the ROC 2012) is vested with powers to dismiss civil action (or admiralty action) where by reason of multiplicity of proceedings in any court or courts, the proceedings ought not to be continued. This is to prevent an abuse of the process of the court. 83. In other words, even if the admiralty in rem jurisdiction is invoked, the High Court has express powers to dismiss admiralty action and release vessels in order to prevent an abuse of the process of the court. In this regard, I consider that this action is a second bite of the proverbial cherry. Similar cause of action and reliefs have been adjudicated in the Dutch court and is pending appeal. This action is effectively a duplication of the Rotterdam suit. 84. The Rotterdam District Court was seized with jurisdiction since the year 2022 and had decided the dispute between P and D on 15.1.2025, arising from the same cause of action and reliefs sought there. The similarity of the cause of action between the Rotterdam suit and the proceedings herein is indisputable. On top of that, the reliefs awarded by the Rotterdam judgment and the security demanded in Malaysia in this action for the release of the subject Vessel is also similar, as shown in the comparison table earlier. The only difference in the sum awarded by the Rotterdam judgment and the security demanded for this Malaysian action is the computation of statutory interest at 5 % per annum for three years and legal costs. 85. On 29.4.2025, P made a unilateral amendment (without the leave of court) to the original writ in rem pursuant to Order 20 rule 1 of the ROC 2012. This occurred after the arrest of the subject Vessel and provision of alternative security for release. Perhaps in an attempt to differentiate this action from the Rotterdam suit, P amended the endorsement of claim to the original writ in rem, as follows : 1) Damages against the Defendant, their servants or agents, for EUR 510,211.00 429,925.00 and USD 124,944.70 109,662.50 (inclusive of statutory interest as at 3.3.2025), inter alia, for breach of their duty of care as bailees of the containers and / or for conversion in respect of loss and exercise of an alleged contractual lien over the said containers for sums allegedly due and owing by Charterers under the CP. 2) A declaration for an indemnity for all loss, liability, costs and / or expenses suffered and / or incurred or which may be suffered and / or incurred by the Plaintiff. 3) Collection costs of EUR 2,843.57 awarded by the Rotterdam District Court under Judgment dated 15.1.2025. 4) Costs of proceedings of EUR 17,501.03 awarded by the Rotterdam District Court under Judgment dated 15.1.2025. 3) Alternatively, damages to be assessed by this Honourable Court; 4) Pre - Judgment Interests on all sums adjudged to be due to the Plaintiff at the rate of 5 % per annum from 27.9.2022 to the date of judgment pursuant to Section 11 of the Civil Law Act 1956; 5) Post - Judgment Interest on the judgment sum at the rate of 5 % per annum from the date of judgment until full realisation thereof; 86. Through the amendment, P has removed the reliefs awarded by the Rotterdam judgment and now seek reliefs for the damages incurred by them for their claim, as if this dispute has not been determined already by the Rotterdam District Court. But it does not change the fact that this action is a duplication of the Rotterdam suit. 87. Both the Malaysian court and the Dutch Court of Appeal are now containers. This in the Rotterdam suit. P is relitigating the same claim against the subject Vessel for security already litigated in the Rotterdam suit. Where though security was offered for the release of the Vessel AP for the same claim, but was abandoned by P for the claim there. 88. The parties are sufficiently similar. The underlying case involved P and the Vessel AP, including the sister ship i.e. the subject Vessel in this action. P has issued the same demand letters for security to D and intended to pursue the claim by way of arrest where the Vessel AP or sister ships can be found. P not only recycles the same cause of action, demand letters and documents in support. But peddles the same arguments raised in the Rotterdam court, stating that it is now simply looking for security for any judgment on its claims that may be obtained at the Malaysian High Court. 89. The situation here is where the two different courts would proceed on the same and one cause of action in admiralty action in rem. Potentially resulting in inconsistent judgments against D or its vessels. When two different courts are asked to decide on the same issue, it is multiplicity of proceedings. A duplicity of proceedings should be avoided, as it not only risks inconsistent findings, but also waste judicial time and costs. There is a plethora of cases dismissing an action when dealing with the issue of duplicity of proceedings, as it tantamounts to an abuse of court process. (See for instance the Court of Appeal decision in Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637). 90. The decision of the High Court in Hondaafushi Investments Pvt Ltd & Ors v Export - Import Bank Malaysia Bhd [2024] 8 MLJ 813 is instructive. There the court found that initiating the same action in both Malaysia and Maldives amounts to an abuse of court process (at page 829 - 830) : Multiplicity of proceedings [45] In fact, the filing of the Malaysian suit also falls foul of the rule against multiplicity of proceedings. Where the commencement of an action gives rise to a multiplicity of proceedings, s 25 (2) [46] The rationale behind the rule against multiplicity of proceedings was considered by the Court of Appeal in Orange Business Services (Network) Sdn Bhd v Dealtel (Malaysia) Sdn Bhd and another suit [2019] MLJU 477; [2019] 1 Lordship then was) held at [17] - [18] that : The objection to multiplicity of proceedings is well grounded and underscored by the public interest to avoid conflicting decisions by two different courts on the same issue between parties decisions on the same issue not only brings embarrassment to the court or tribunal but may also undermine public confidence in the administration of justice. Authorities on the point also suggest that having multiple actions on the same issues is an abuse of process giving power to the court to act accordingly by [47] The subject matter of the present action is identical to that of the - namely a claim for an alleged breach of contract premised upon the loan agreements. For this reason, the Malaysian suit raises the very same facts and issues arising out of and or in connection with the same agreements, which is currently being litigated by the same parties before the Maldives Court in the Maldives suit. [49] As rightly contended by the defendant, if both actions are allowed to proceed in their respective jurisdictions, there is a significant risk of conflicting decisions being rendered by both courts on the same subject matter. This is plainly contrary to the very principle underlying the rule against multiplicity of proceedings (see the Court of Appeal in Orange Business at [17]). Bearing in mind that the plaintiffs had already unequivocally submitted to the jurisdiction of the Maldives Court to litigate the subject matter of the present dispute, the belated filing of the Malaysian suit which gives rise to a multiplicity of proceedings is a clear abuse of process by the plaintiffs. This warrants the immediate striking out of the Malaysian suit by this court. 91. It is noteworthy that the cause of action and issues, i.e. whether D , have already been determined by the Rotterdam suit. This herein is res judicata. Since P s claim has already been judicially determined by the Rotterdam District Court, P should not relitigate similar causes of action and issues before the Malaysian High Court by way of an admiralty action. 92. Again, there is an abundance of cases dismissing an action by applying the doctrine of res judicata, which has been extended to cause of action or issue estoppel. (See for instance the Supreme Court case of Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance Bhd & Anor [1999] 1 CLJ 1; the Court of Appeal cases of Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57; bin Tun Abdul Razak v A. Santamil Selvi a/p Alau Malay @ Anna Malay & Ors and other appeals [2020] MLJU 562). 93. The requirements of issue estoppel are fulfilled in this case. To wit : (a) The same question in the Rotterdam District Court and before this c . This is evident from the extract below from the Rotterdam judgment. And from the original writ in rem in this action. 1) Damages against the Defendant, their servants or agents, for EUR 510,211.00 and USD 124,944.70 (inclusive of statutory interest as at 3.3.2025), inter alia, for breach of their duty as bailees of the containers and / or for conversion in respect of loss and damage of the containers wrongful exercise of an alleged contractual lien over the said containers for sums allegedly due and owing by Charterers under the CP. (b) The judicial decision that creates the estoppel - the Rotterdam judgment, despite an appeal filed - was final. (c) Both the parties in the Rotterdam District Court and the Malaysian court are the same. 1st Containers (UK) Ltd as the plaintiff and Maoming Hua Xiang Shipping Co. Ltd as the defendant / shipowner of the Vessel AP and the subject Vessel. 94. The purpose of the principle of res judicata is to ensure finality in litigation. An issue that has been raised and determined before, cannot be raised for a second time in a subsequent proceeding. On the circumstances of the present case, this type of duplication of proceedings and issue estoppel constitute an abuse of process of court. Applying issue estoppel, P is estopped from arresting the subject Vessel in respect of the same claims or causes of action raised and determined in the prior proceedings that took place at the Rotterdam District Court. This action is premature as the Rotterdam judgment is under appeal awaiting hearing 95. According to D, under Dutch law, parties unsatisfied with the judgment awarded by the Rotterdam District Court are entitled to appeal against the decision. P was aware and advised by its legal advisers in this respect. D has, within the time prescribed by the Dutch Civil Court Procedure, lodged an appeal against the Rotterdam judgment to the Hague Court of Appeal. 96. P says that it is irrelevant whether D is within time to appeal against the Rotterdam judgment. However, this is relevant as it demonstrates that P is prematurely seeking a second action on the pretext of a same cause of action and enforcement of judgment for security in Malaysia. W right of appeal to the Dutch Court of Appeal against the Rotterdam judgment is still pending. This is also relevant as the Dutch Court of Appeal will hear appeals by way of a full rehearing. The possibility that the Rotterdam judgment might be overturned on the merits by the Hague Court of Appeal cannot be discounted. 97. The refiling for the same cause of action by P in the Malaysian court to obtain security for judgment from D amounts to a collateral attack against the issues pending in the Hague Court of Appeal. (See the Court of Appeal case of Penang Port Commission v Kanawagi s/o Seperumaniam [2008] 6 MLJ 686 at paragraph [54]). The refiling of this action could also result in the appeal outcome, if successful, having no effect. (See the High Court case of Epacland Sdn Bhd v Kean Seong Co Sdn Bhd [2013] 8 MLJ 124 at paragraph [24]). Release of the Vessel AP without security 98. I think t in the Netherlands and Malaysia for the same cause of action is because the Vessel AP in the Rotterdam suit. From the facts, P and D reached an agreement as to the wordings and amount of security, to provide alternative security by way of the Skuld LOU in the Rotterdam suit for the release of the Vessel 14. AP. ( 12.2022). However, by lifting the arrest of the Vessel AP without notice and without securing its position, P has abandoned its entitlement to the LOU because there was no agreement between the parties that the LOU would survive the release of the Vessel AP or stand as security for any subsequent Rotterdam court judgment. 99. The release of the benefit. Namely to permit the Vessel AP to berth at terminal and discharge its containers. However, instead of obtaining a conditional release order from the Rotterdam court or rearresting the Vessel AP once discharge operations of the containers were completed, P allowed the Vessel AP to . P then proceeded with a full trial on merits, leading to the Rotterdam judgment. In so doing and without seeking any further security from the Rotterdam court seized with jurisdiction over both parties to the dispute, P accepted the position that any judgment which it obtains from the Rotterdam court will have to be enforced against judgment proceedings available in the Rotterdam courts or elsewhere. 100. reveals a pattern of conduct, as P continued to threaten payment demands after releasing the Vessel AP without security. (a) s dated the LOU for the Rotterdam suit. It is pertinent to note that even until the date of the Rotterdam judgment after full trial on 15.1.2025, there were no steps taken by P in the Rotterdam suit to secure its judgment. (b) a dated 25.2.2025, it is stated that the three vessels owned by D will be arrested if payment for the Rotterdam judgement is not made within three days of the letter. (c) s lawyer, it is stated that if no payment is given within three days, . When at the material time, the subject Vessel has only been arrested for three days and no memorandum of appearance was filed yet by D, as D is still within the time limited by the ROC 2012 to enter appearance. 101. 13.3.2025, to demand the full payment of the Rotterdam judgment, was issued after the arrest of the subject Vessel in Malaysia. P believed that it was entitled to both demand full payment and initiate the arrest simultaneously. of the letter states an intention to refrain from legal action. But the final paragraph expressly reserves its rights under the Rotterdam judgment, stating Please note that this letter is not to be construed as a waiver of our rights under the said Rotterdam District Court Judgment, which at all times remain fully reserved . This reservation of rights contradicts the earlier statement and renders the purported undertaking ineffective. The contradiction between the body of the letter and the reservation clause reveals that P had no genuine intention of refraining from enforcement. Instead, it sought to preserve its ability to continue pursuing the Rotterdam judgment until payment was ultimately secured, despite D already providing alternative security by way of the said LOU. 102. I consider that the purpose of this action is to exert pressure on D to make payment of the Rotterdam judgment. P is now seeking to make D bear the brunt of its own decision to release the Vessel AP without first securing its position in the Rotterdam s e of the Malaysian court process to once again obtain security should not be allowed. (See the Court of Appeal case of Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 MLJ 425 at 434 - 435). delay in commencing a fresh action in the High Court for the same cause of action that arose in 2022 between the same parties 103. There is a gap of more than two years, from the release of the Vessel AP from arrest on 9.11.2022, until the filing of this action on 6.3.2025. T ement of a fresh action in the High Court for the same cause of action that arose in the year 2022 with regard to the Vessel AP between the same parties and the arrest of the subject Vessel for security, invokes the application of the doctrine of laches and acquiescence against P. (See the Court of Appeal decision in Tan Keng Yong @ Tan Keng Hong & Anor v Tan Hwa Ling @Tan Siew Leng & Ors [2022] 3 CLJ 274; [2022] 2 MLJ 853). 104. In considering the existence of delay, the court will examine the surrounding circumstances and conduct of the parties. Namely : (a) P commenced proceedings for the same cause of action in the Rotterdam District Court and arrested the Vessel AP there in the year 2022 as security for its claims. (b) It then lifted the arrest of the Vessel AP without securing alternate security. (c) It proceeded to prosecute its substantive claim on merits in a full trial at the Rotterdam District Court from 2022 till January 2025, without seeking any security for the judgment there. There has been acquiescence on P s part. (d) It failed to proceed with enforcement of the Rotterdam judgment , despite numerous demand notices to settle the judgment sum sent to D. (e) Belatedly, it now brings a similar cause of action with this fresh action by arrest of another vessel owned by D, i.e. the subject Vessel, in the hope of correcting its failure to obtain security in the Rotterdam suit. (f) The purpose of this action (and the arrest of the subject Vessel) is to enforce a foreign court judgment, which claim does not fall under the category of claim within the admiralty jurisdiction of the High Court. (g) P was aware that D is entitled to lodge an appeal against the Rotterdam judgment, and the appeal is indeed pending on the same cause of action. 105. tantamounts to acquiescence and waiver of its position to demand fresh security for its determined claim in the Dutch courts. The doctrine of laches and acquiescence operates against P in this relitigated action. The Rena K no bar rule 106. To counter the security sought in this action is in enforcement of an unsatisfied Rotterdam judgment, P relies on the decision of the English High Court in The Rena K [1978] 1 L Law Report 545; [1979] QB 377. This is the crux o case in relitigating in Malaysia the same previously determined maritime tort (conversion) claim brought in Rotterdam against D. As such, a discussion of The Rena K no bar rule would be useful. 107. In The Rena K, the owners of a ruined cargo of sugar began an action in rem against the ship which had carried it for the cargo's value plus interest and costs. The ship was arrested. The shipowners applied for a stay, contending that the dispute should have been referred to arbitration. The cargo owners counterclaimed that the arbitration agreement was incapable of performance within the meaning of the UK Arbitration Act 1975 section 1. And that the stay should be refused as the shipowners were not in a financial position to satisfy any award made against them. 108. It was observed by Brandon J that although the shipowners were incapable of meeting any award, it was possible that the P and I club of which they were a member could. Since the cargo owners had failed to show that the club could not, the stay would be granted. However, the shipowners contention that the ship should automatically be released upon the grant of a stay, and that no security had to be provided for any claim against them, was wrong. The court has a discretion under UK RSC Order 75 rule 13 (4) to refuse to release the ship unless alternative security was provided. It was only proper to release a ship unconditionally where the stay would almost certainly be final and no judgment would subsequently be in need of satisfaction. 109. It was further stated that where a stay of court action is granted and that if an award was made later against the shipowners and they were unable to satisfy it, the cargo owners would be entitled to have the stay of the action removed and to proceed to a judgment in rem in it because a cause of action in rem did not become merged in an arbitral award. 110. I consider that The Rena K no bar rule does not apply in the Malaysian context and in the circumstances of the present case. Here are my reasons. The doctrine of merger 111. P asserts that the Rotterdam in personam judgment does not merge the in rem right for a same cause of action and reliefs to commence the action in rem and arrest of the subject Vessel in this action. P cites The Rena K where the English High Court granted a stay of the court proceedings in favour of London arbitration and retention of security for arbitral award in that case where in rem and in personam actions were commenced simultaneously by the cargo owners against the same shipowners. However, the facts and issues raised for security for arbitration via arrest of the vessel in The Rena K are distinguishable from the facts of the present case (involving previous foreign court in personam judgment). 112. The doctrine of merger dictates that once a party obtains a final decision (regardless of a subsequent appeal) on a cause of action, that cause of action is extinguished and replaced by the judgment or award. For instance, since an arbitral award is a final determination of the claimant s rights and the shipowner s obligations (res judicata), the original maritime claim that founded the right to arrest the vessel should merge into the arbitral award at the time of filing of the writ. If the cause of action is merged, it no longer exists, and therefore, the right to maintain an action in rem (which relies on the existence of a maritime claim at the time of filing of the writ) or its security is automatically lost. 113. The Rena K concerned an action in rem (against a ship) for a cargo claim in the English High Court, where the shipowners applied to stay the court proceedings in favour of London arbitration as stipulated in their agreement. The claimants (cargo owners) also commenced an in personam action simultaneously against the same shipowners seeking Mareva injunction in the same High Court. The issue was whether the claimants could still maintain the ship's arrest or retain the security provided for its release, despite the court action being stayed for London arbitration. Brandon J held that a cause of action in rem, being of a different character from a cause of action in personam, does not merge in a judgment in personam, but remains available to the person who has it so long as, and to the extent that, such judgment remains unsatisfied. 114. The foundation of the no bar rule statement by Brandon J in The Rena K is the difference in character of a cause of action in rem and a cause of action in personam. This is because the two actions are of a different nature, obtaining an in personam judgment (or arbitral award) against the shipowner does not cause the original cause of action in rem to be legally extinguished (merged) into that judgment. This allows the claimant, who holds the unsatisfied judgment, to subsequently use the in rem action to arrest a vessel and obtain security for the debt, a power that would have otherwise been lost under common law principles of merger. 115. In modern non - maritime lien cases, the distinction (different character) under common law principles of merger is a historical fiction. In non - maritime lien claims, where the action in rem is based on the shipowner s personal liability (which is how most statutory claims under the UK SCA 1981 section 21 (4) arise), the action in rem is merely a procedural device to compel the shipowner to appear in the court action. Once the shipowner appears, the action becomes effectively an action against the shipowner (the same defendant) on the same underlying liability. 116. Unlike the present case, The Rena K was decided in the context of two separate actions (in personam and in rem) within the same jurisdiction (both in the English High Court). And not where the prior in personam judgment was obtained in a foreign court. 117. The Rena K was a creative judicial mechanism developed by Brandon J in 1979 to navigate a lack of statutory power in UK to retain security for an arbitral award when the court action (upon exercising c specific statutory provisions in various Arbitration and Admiralty Acts subsequently in England and elsewhere, this judicial workaround is no longer necessary. The new legislation provides a direct, non - discretionary power for the court to retain security. The court s power to retain security for an arbitral award or foreign court action is now often governed by statute, not common law. 118. For example : (a) In Malaysia, section 10 (2A) of the Arbitration Act 2005 reflects the general distinction between the choice of forum for determination of the merits of a dispute on the one hand, and the right to retain security in respect of maritime claims under section 24 (b) of the CJA 1964 on the other. Therefore, section 10 (2A) of the Arbitration Act 2005 effectively does away with The Rena K test regarding retention of security for an eventual arbitral award. (b) In the UK, section 26 of the Civil Jurisdiction and Judgments Act 1982 deals with the security of property in admiralty proceedings. It specifies that if proceedings are stayed or dismissed to allow for another court s jurisdiction, the security given in the original proceedings remains valid. If the initial security was given to prevent arrest, the stay or dismissal does not affect it. (c) In the UK also, section 34 of the Civil Jurisdiction and Judgments Act 1982 provides that an in rem action, with the same cause of action already decided in an in personam action between the same parties or their privies in another court or in a court of an overseas country, cannot be sustained. 119. Even if the no bar rule allows a claimant to keep the original cause of action alive (and not merged) after an unsatisfied in personam judgment, this rule should not extend to permit multiplicity or vexatious litigation, especially concerning a sister ship, as in the present case. Otherwise, The Rena K principle can be framed as encouraging an abuse of court process. Hence, the claimants should be left to their natural forum court they have chosen to determine the dispute. Once the natural forum court is seized with the jurisdiction to determine the dispute on the merits. they should not be permitted to maintain an action or arrest to enforce the foreign judgment or to relitigate the same cause of action against the same party for the same dispute in the courts elsewhere. 120. It is crucial to note in the context of maritime disputes, while the no bar rule in The Rena K prevents the original cause of action from merging into an arbitral award, the counter argument against it in a Malaysian context comes from the later persuasive English House of Lords decision in The Indian Grace (No. 2) [1998] 1 L Law Report 1. The Indian Grace (No. 2) (not following The Rena K no bar rule ) held that where a plaintiff obtains an in personam foreign judgment and then seeks to arrest a vessel in an in rem court action for the same underlying claim, the action in rem is barred by the principle of res judicata because the two actions were fundamentally between the same parties for the same dispute. The House of Lords in The Indian Grace (No. 2) disagreed with Brandon s different character concept by asserting that an action in rem is essentially a procedural mechanism to compel the appearance of the shipowner. It is, in reality, an action against the shipowner from the moment the natural forum court is seized of jurisdiction. In other words, the House of Lords rejected the personification of the ship and adopted the procedural theory of the in rem action. 121. In addition, when viewed through the lens of Malaysian law (section 25 (2) and item 11 of the Schedule to the CJA 1964) and the principles of res judicata and multiplicity of proceedings, the modern reality of an action in rem makes the two actions, in rem and in personam, functionally the same, thereby triggering the bar, contrary to what was observed in The Rena K. In other words, Brandon s technical distinction in The Rena K is insufficient to override the fundamental legal principles of res judicata and the prohibition on multiplicity of proceedings, particularly within the Malaysian statutory framework. 122. It is also important to note that The Rena K (1979) was decided by the English High Court prior to the coming into force of the UK SCA 1981 and UK Civil Jurisdiction and Judgments Act 1982, section 34. The UK SCA 1981 (particularly sections 20 to 24 prescribing admiralty jurisdiction of the English High Court) did not codify The Rena K o bar rule to permit a fresh action in rem brought in other courts elsewhere against an offending vessel or sister vessel after an in personam judgment is obtained for the same dispute against the same shipowners who owned both the vessels. 123. The Rena K was decided before The Indian Grace (No. 2) and proceeded on the notion that an action in rem is distinct from one in personam because the ship was viewed as a separate juridical entity. That notion has been discarded. Once the owner appears or provides security, the in rem action becomes one in personam. The Indian Grace (No. 2) shows that the courts are entitled to look beyond the specific provisions governing the admiralty jurisdiction (the UK SCA 1981) to consider whether there are other provisions of law - such as those codifying general principles like res judicata or multiplicity of proceedings - to bar further proceedings on the same cause of action, despite the o bar r laid down in The Rena K. 124. Unlike the English position, Malaysian law (through item 11 of the Schedule to the CJA 1964) provides wide express statutory basis to dismiss proceedings where the subject matter in question (regardless of the nature and character of action) has been adjudicated elsewhere between the same parties. Thus o bar r merger. Res judicata 125. The doctrine of res judicata prevents a party from relitigating a matter that has already been adjudicated upon. The doctrine of merger further provides that once a cause of action has merged into a judgment, the original right ceases to exist, and the judgment itself becomes the only enforceable obligation. The modern articulation of this principle is found in The Indian Grace (No. 2), where the House of Lords held that the cause of action merges into a judgment and cannot be pursued again, whether in rem or in personam. 126. The Indian Grace (No. 2) held that an action in rem was prohibited because a judgment has already been obtained for the same cause of action in a foreign court. Although that case was based on a specific provision of the UK Civil Jurisdiction and Judgments Act 1982 (section 34), the argument remains that the spirit of the law is that a party should not be able to obtain a judgment, and then pursue a subsequent in rem action for the same debt, even if the judgment is unsatisfied at the time of the writ and under appeal. This supports the merger doctrine. 127. While the Rotterdam judgment is subject to appeal, for the purpose of res judicata and the doctrine of merger, it remains a judgment of a competent foreign court exercising proper jurisdiction. Under the doctrine of international comity, Malaysian courts will respect such judgments unless shown to be defective in jurisdiction, per incuriam or obtained by fraud. The mere pendency of appeal does not erase the judgmen existence. A judgment made on the merits pending appeal is still a valid judgment, unless and until reversed. 128. In any event, in the present case, P commenced the admiralty in rem action herein against the subject Vessel on the same cause of action against the same party based on the same set of facts, as if the Rotterdam judgment was final, prior to D filing an appeal in the Hague Appeal Court against the j arrest affidavit that the Rotterdam judgment was not final between the parties. Otherwise, P would not have repeatedly demanded or threatened D on the enforcement of the Rotterdam judgment prior to and after the arrest of the subject Vessel in this action. 129. Hence, the Rotterdam in personam judgment is sufficiently authoritative to engage issue estoppel and merger in the present action. P should not be permitted to ignore the Rotterdam judgment by parallel proceedings in Malaysia on the pretext of the o bar rule in The Rena K. The fiction of distinct defendant 130. The Indian Grace (No. 2) rejected the notion that an in rem action involves a different defendant with regard to the issue of res judicata and the doctrine of merger. The House of Lords explained that the in rem proceeding is merely a procedural device to obtain security for or enforce a liability that is substantively the shipowner. It is not an action against an autonomous juridical entity, but a procedural mechanism by which the shipowner is compelled to respond. Once the shipowner enters an appearance, the action becomes fully in personam - as against the shipowner - even though procedurally it remains in rem. (See the High Court case of The Edzard Schulte [2023] 12 MLJ 53 at paragraph [76]). 131. Hence, for purposes of res judicata, merger, issue estoppel, multiplicity of proceedings and item 11 of the Schedule to the CJA 1964, court - FCL v shipowner company (Maoming). In the Malaysian court - FCL v ship (representing the same shipowner and who had entered appearance, Maoming). No one can enter an appearance and defend the action herein as of right except for Maoming. The defendant may be differently described, but it is the same legal person whose liability is engaged. This is particular true when a cause of action in rem is only permissible to be enforced in Malaysia by way of civil action under section 21 (4) of the UK SCA 1981 (by virtue of section 24 (b) read together with section 25 (2) of the CJA 1964). Where P must show that the person who would be liable in personam in the claim is Maoming (legal person), and the beneficial ownership of the sister ship against which the action is brought is owned by the same person Maoming (legal person). diluted 132. The Rena K principle relies on the view that an action in rem is so fundamentally different from an action in personam that merger does not apply. T arising from the alleged wrongful exercise of lien on the containers is the same, regardless of whether it is brought against the ship or the shipowner. Allowing the security to remain on the basis of a revived in rem action is effectively an indirect and improper method of enforcing the Rotterdam judgment, which is a remedy outside the High Court s admiralty jurisdiction. 133. Brandon J in The Rena K opined that in rem and in personam distinction between ship and shipowner. However, this reasoning:- (a) predated The Indian Grace (No. 2), which dispelled that distinction; (b) was founded on English procedural peculiarities (before the UK SCA 1981 reforms) not mirrored in Malaysia; and (c) is incompatible with section 25 (2) and item 11 of the Schedule to the CJA 1964, which codifies the power to prevent duplicative litigation. Thus, The Rena K o bar rule cannot be relied upon in this case in the light of item 11 of the Schedule to the CJA 1964 and The Indian Grace (No. 2). 134. Following the principle in The Indian Grace (No. 2), once the Rotterdam judgment is obtained, the original cause of action merges in the judgment. The merger doctrine applies to the in rem action under es one on the judgment debt, not on the underlying tort for damages arising from exercise of lien on the containers or conversion. Failure to satisfy the threshold under The Rena K 135. To satisfy The Rena K o bar rule , the amount that remains unsatisfied is the judgment or arbitral award amount that was granted in the parallel proceedings (in personam judgment or arbitration). And not the original underlying claim amount (i.e. the amount of damages suffered by the plaintiff, which is the original claim amount). Hence, for the purpose of The Rena K, the quantum that determines the utility of the in rem action is the unsatisfied portion of the judgment or award in the parallel proceedings. 136. In the present case, even if P is to come under The Rena K o bar rule , it is the foreign Rotterdam judgment amount that remained unsatisfied by D. The quantum that determines the continued viability of the in rem action is the judgment amount. In other words, the in rem action remains available only to the extent that the judgment amount remains unsatisfied. However, P has not provided sufficient evidence in the affidavit leading to the warrant of arrest that D will dissipate assets or will not satisfy the in personam Rotterdam judgment. Therefore, the threshold under The Rena K is not met. Namely, that the in personam judgment must remain genuinely at risk of being unsatisfied. There is absence of evidence showing that the Rotterdam judgment cannot or will not be satisfied by D. Quite the opposite, it is evident that D has substantive assets or can prove it has sufficient means to cover the Rotterdam judgment sum. Hence, the raison d être of The Rena K (preventing an unsatisfied judgment) disappears. 137. P maintains that the present in rem action was not commenced to enforce the Rotterdam judgment. P relies on o bar rule in The Rena K to bring a fresh action in rem for the same dispute in Malaysia. P further agreed not to enforce the Rotterdam judgment after the arrest of the subject Vessel in this action. However, these are insufficient as P must show that the Rotterdam judgment remains unsatisfied because D is unable or unwilling to satisfy it. 138. the Rotterdam judgment) undermines any suggestion of a risk of non - satisfaction. If P itself refuses to enforce the judgment, how can it claim contrary to the threshold established in The Rena K, which is meant to ensure that the judgment can be satisfied. 139. In the premises, I consider that The Rena K o bar rule does not apply in this situation. Where P obtains the Rotterdam judgment and then attempts to bring a fresh action in rem in Malaysia, while agreeing not to enforce the Rotterdam judgment. Thereby implying that the foreign Rotterdam judgment amount need not be satisfied by D. In any event agreement not to enforce the Rotterdam judgment in bringing the claim in rem against D for the same dispute after the arrest of the subject Vessel is irrelevant based on The Indian Grace (No. 2). This is because the bar operates simply because a foreign judgment on the same claim exists between the same parties. The doctrine of merger, cause of action estoppel, duplicity and abuse of court process are applicable even when the Rotterdam judgment is not enforceable under the Malaysian Reciprocal Enforcement of Judgments Act 1958 140. The Rotterdam judgment on the merits, even though foreign, represents a final adjudication (albeit subject to appeal) of the same cause of action. The Rotterdam District Court had jurisdiction over the same parties for the same dispute. The Rotterdam judgment remains valid until reversed on appeal. In other words, the finality in the foreign jurisdiction is not the same as enforceability in Malaysia. The judgment exists and remains valid in the Netherlands unless overturned, but it cannot automatically be enforced in Malaysia. 141. The doctrine of merger and cause of action estoppel as in The Indian Grace (No. 2) turns on the existence of a judgment, not on whether it is enforceable under a statute. While the Reciprocal Enforcement of REJA Malaysian courts nonetheless recognize foreign judgments at common law. A foreign judgment that falls outside REJA may still be enforced by the Malaysian courts through the principle of common law. (See the Federal Court case of Pembinaan SPK Sdn Bhd v Conaire Engineering Sdn Bhd - LLC & Anor and another appeal [2023] 2 MLJ 324). In any event, REJA is only a procedural shortcut for registration and execution, not a prerequisite for merger or estoppel. 142. The original cause of action is merged or extinguished after the issuance of the Rotterdam judgment. enforcing that Rotterdam judgment. Hence, even without registration under REJA, the Rotterdam judgment gives rise to cause of action estoppel and merger (the original cause of action ceased to exist following the issuance of the Rotterdam judgment). Malaysian courts should follow the House of Lords decision in The Indian Grace (No. 2) 143. The High Court s admiralty jurisdiction is derived from the UK SCA 1981. As such, the apex UK House of Lords (now Supreme Court) precedents (like The Indian Grace No. 2) are highly persuasive, if not binding, unless contradicted by local statute. Therefore, Malaysian courts should follow the House of Lords decision in The Indian Grace (No. 2), which held that a foreign in personam judgment precludes a subsequent in rem action based on a statutory lien on the same cause of action. 144. Crucially, item 11 of the Schedule to the CJA 1964 allows the court to disregard the technical separation between the in rem action and the in personam liability (i.e. trumps common law fiction), in favour of the overriding public policy to prevent duplication and ensure finality. It seems to me that The Indian Grace (No. 2) policy is better served by item 11 of the Schedule to the CJA 1964. In fact, item 11 of the Schedule to the CJA 1964 aligns with the policy behind section 34 of the UK Civil Jurisdiction and Judgments Act 1982, which mandated the dismissal of a second action after a foreign court judgment as in The Indian Grace (No. 2). While Malaysia lacks the equivalent of section 34 of the UK Civil Jurisdiction and Judgments Act 1982 (which explicitly bars the second action), we have item 11 of the Schedule to the CJA 1964. That gives the court the necessary inherent jurisdiction and general statutory power to prevent abuse by adopting the policy against relitigation reflected in The Indian Grace (No. 2). 145. Similarly, the doctrine of res judicata applies to the substance of the underlying conversion claim (damages for wrongful exercise of lien on is irrelevant to res judicata. The core fact is that the same right to recover damages has already been litigated to finality in Rotterdam. Item 11 of the s statutory power to dismiss for res judicata is therefore triggered by the existence of the prior judgment, not by the procedural form of the new Malaysian writ in rem. Hence that there is no similar legislation in Malaysia to the effect of section 34 of the UK Civil Jurisdiction and Judgments Act 1982 is misplaced. 146. P cites the insertion in 2001 of the insertion of Part 61.5 of the Admiralty Claims, Civil Procedure Rules 1998 by The Civil Procedure (Amendment No. 5) Rules 2001. Part 61.5 procedurally reverses the position in England after The Indian Grace (No. 2), by now allowing an in rem claimant or judgment creditor to arrest a ship by an action in rem. However, the English Civil Procedure Rules have no statutory application in Malaysia. Propositions of law in the Malaysian context with regard to The Rena K o bar rule in the present case 147. I adopt the following two propositions of law in the Malaysian context with regard to The Rena K o bar rule in the circumstances of this case. (a) Section 25 (2) and Item 11 of the Schedule to the CJA 1964 codifies the c from duplicative or parallel civil court proceedings which have been determined or pending final determination. Where a foreign court judgment in personam has determined the same cause of action arising from the same set of facts and issues between the same parties to the dispute, the High Court may exercise this statutory power to dismiss an admiralty action in rem based on that same claim or dispute. The Rena K o bar rule does not represent Malaysian law, as it predates or disregard the common law merger doctrine affirmed in The Indian Grace (No. 2) and is inconsistent with the statutory policy embodied in Item 11 of the Schedule to the CJA 1964 read together with Order 92 rule 4 of the ROC 2012. (b) For the purposes of res judicata and multiplicity of court proceedings under section 25 (2) and item 11 of the Schedule to the CJA 1964, an action in rem and an action in personam founded upon the same cause of action arising from the same set of facts are between the same parties. The ship, as res, merely represents the shipowner. Once a judgment in personam has been obtained against the shipowner for the same dispute, the cause of action merges in that judgment and should not be relitigated for the same cause of action in rem against the res or shipowner in Malaysia. No damages for wrongful arrest 148. I did not allow D prayer for damages for wrongful arrest under prayer (c) of Enclosure 19. I was not convinced that the arrest herein was brought with so little colour, or so little foundation, that it implies malice or gross negligence. That is the test to be applied in deciding whether to order an inquiry as to damages for wrongful arrest of a vessel, as held in the following authorities : (a) The Privy Council case of The Evangelismos [1858] 12 Moo. P.C. 352. is there or is there not, reason to say, that the action was so unwarrantedly brought, or brought with so little colour, or so little foundation, that it rather implies malice on the part of the plaintiff, or that gross negligence which is equivalent to it (b) The English High Court case of The Kommunar (No. 3) [1997] 1 mala fides, which must be taken to mean those cases where on the primary evidence the arresting party has no honest belief in his entitlement to arrest the vessel. Secondly, there are those cases in which objectively there is so little basis for the arrest that it may be inferred that the arresting party did not believe in his entitlement to arrest the vessel. It is, as I understand the judgment, in the latter sense that such phrases gross negligence 149. The threshold is high. The defendant must prove the arrest was brought with malice or such gross negligence that implies malice. Even a good defence to it will not condemn a plaintiff to damages. As pointed out by the Singapore Court of Appeal in [1988] 3 MLJ 367 : the appellants claim may fail but that is not the test of whether they had acted in bad faith vessel or such other property as is permitted to obtain security for the claim. It cannot be argued that the arrest is made in bad faith merely because there is good defence to the claim. In our opinion, for an arrest to be in bad faith , there must be some element in the arrester s conduct, for example, where the arrest is in relation to a malicious claim, or is of itself malicious, apart from the 150. I accept P genuinely thought that it had a claim in admiralty based on its interpretation and application of T present case. In my opinion, P was wrong. Nevertheless, a bona fide mistake of law or fact or an erroneous interpretation per se does not amount to malice. I refer to the Singapore Court of Appeal case of The [2006] 2 SLR (R) 181 at 193 - 194, which held : [32] could it be said that the appellant applied for the warrant of arrest knowing or honestly believing that it could not legitimately arrest the vessel and nevertheless proceeding to do so? We did not think that the appellant had committed either wrongdoing. On the evidence, we were satisfied that the appellant genuinely thought that it had a claim in admiralty. It had disclosed the terms of the MOU to the court The fact that the court below held that the charterparty was a sham, a decision affirmed by us, did not mean that the appellant had acted with malice. It had disclosed the unusual arrangements to the court. All it meant was that the appellant was wrong in its interpretation or perception of the entire arrangement. Being shown to be wrong could not per se amount to being malicious. [33] Accordingly, we were of the opinion that there was no evidence to suggest malice or crassa negligentia on the part of the appellant and set aside the order on damages made against the appellant 151. The courts will not readily find wrongful arrest and award damages, unless the arresting party is guilty of some deliberate, blameworthy actions in bringing about the arrest, deliberate non - disclosure of material facts or deliberate misleading of the court when applying for arrest. Here, I do not see any non - disclosure of material facts by P. In the arrest affidavit, P disclosed the Rotterdam judgment and the UK position of law following the House of Lords decision of The Indian Grace No. 2. In short, there is no evidence of malice or gross negligence on the part of P to justify an award of damages. to pressure settlement, that alone is not enough. The test requires mala fides or gross negligence. 152. Finally, I would point out that ship arrest for actions in rem, under Malaysian law, is as of right. We follow the English law position that once the statutory requirements of the admiralty statute, that is sections 20 to 24 of the UK SCA 1981 (applicable by virtue of section 24 (b) of the CJA 1964), and Order 70 rule 4 of the ROC 2012 are satisfied, one may arrest a ship as of right. No discretion of the court arises. (See the High Court cases of [2021] 9 MLJ 936; [2023] MLJU 2819). Conclusion 153. 19. For the reasons above, I allowed prayers (a) and (b) of Enclosure I set aside writ and the warrant of arrest. I ordered the return and cancellation of the alternate security (i.e. the said LOU) provided by D for the release of the subject Vessel from arrest. I awarded costs of RM 10,000 to D. Dated 30 December 2025 Quay Chew Soon Judge High Court of Kuala Lumpur (Commercial Division NCC 2 & Admiralty 9) Counsels Jeremy M Joseph, Vinodhini B Samuel and Caleb Goh Hern - Ee (Messrs. Joseph & Partners) for the Plaintiff Mathew Kurien and Jerrica Quah (Messrs. Sativale Mathew Arun) for the Defendant Case reference 1. Desert Oasis Petrochemical Trading LLC v The Alpine Mathilde [2024] 1 CLJ 543 2. New World P & [2024] CLJU 3225; [2024] MLRHU 2740 3. [2012] 4 SLR 546 4. [1989] 2 CLJ Rep 457 5. [1999] 6 MLJ 652 6. [2003] 8 CLJ 762 7. Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637 8. Hondaafushi Investments Pvt Ltd & Ors v Export - Import Bank Malaysia Bhd [2024] 8 MLJ 813 9. Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance Bhd & Anor [1999] 1 CLJ 1 10. Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 11. tamil Selvi a/p Alau Malay @ 12. Anna Malay & Ors and other appeals [2020] MLJU 562 13. Penang Port Commission v Kanawagi s/o Seperumaniam [2008] 6 MLJ 686 14. Epacland Sdn Bhd v Kean Seong Co Sdn Bhd [2013] 8 MLJ 124 Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku 15. Mohamed [1998] 2 MLJ 425 Tan Keng Yong @ Tan Keng Hong & Anor v Tan Hwa Ling @Tan Siew Leng & Ors [2022] 3 CLJ 274; [2022] 2 MLJ 853 16. The Indian Grace (No. 2) 17. [2023] 12 MLJ 53 18. Pembinaan SPK Sdn Bhd v Conaire Engineering Sdn Bhd - LLC & Anor and another appeal [2023] 2 MLJ 324 19. The Evangelismos [1858] 12 Moo. P.C. 20. The Kommunar (No. 3) 21. [1988] 3 MLJ 367 22. [2006] 2 SLR (R) 181 23. [2021] 9 MLJ 936 24. [2023] MLJU 2819 Legislation reference 1. Order 12 rule 10; Order 70 rule 2 and rule 4; Order 20 rule 1; Order 92 rule 4 of the Rules of Court 2012 2. Sections 20 (1) (a); 20 (2) (g) and 21 (4) (a) and (b) (ii) of the UK Senior Courts Act 1981 3. Sections 24 (b) and 25 (2) and item 11 of the Schedule of the Courts of Judicature Act 1964 4. Section 1 of the UK Arbitration Act 1975 5. Section 10 (2A) of the Arbitration Act 2005 6. Sections 26 and 34 of the UK Civil Jurisdiction and Judgments Act 1982 7. Reciprocal Enforcement of Judgments Act 1958 8. UK RSC Order 75 rule 13 (4) 9. 10. Part 61.5 of the Admiralty Claims, Civil Procedure Rules 1998 The Civil Procedure (Amendment No. 5) Rules 2001