B Braun Medical Industries Sdn Bhd v 1. ) Pyramid Lines Singapore Pte Ltd (WA-27NCC-28-06/2023)

PYRAMID LINES SINGAPORE PTE LTD (Singapore Company No: 202036758N)

CEVA FREIGHT HOLDINGS (M) SDN BHD (Company No: 135334-M)

YCH DISTRIPARK SDN BHD (Company No: 275656-P) …DEFENDANTS JUDGMENT (Enclosures 11 and 13) Introduction [1] This judgment deals with the applications filed by the 1 st Defendant, Pyramid Lines Singapore Pte Ltd (“Pyramid Lines”) and the 2nd Defendant, Ceva Freight Holdings (M) Sdn Bhd (“Ceva Freight”) under Enclosures 11 and 13 respectively to stay all proceedings in this action on the ground that the Singapore High Court is the agreed exclusive forum between the parties in respect of the disputes arising from the claims by the Plaintiff, B. Braun Medical Industries Sdn Bhd (“B. Braun”) in this action. [2] The stay applications are made under Order 12 Rule 10 of the Rules of Court 2012 and or the inherent jurisdiction of the Courts. The applications are premised on Clause 1 of the Bill of Lading which is an exclusive jurisdiction clause providing any claims against B. Braun or arising from the contract of carriage to be determined by the Singapore High Court. [3] After perusing the cause papers and hearing oral submissions from learned counsel, I hold that B. Braun has established a strong cause to justify departing from the agreed exclusive jurisdiction clause. Background facts [4] B. Braun claims in this action that Pyramid Lines had agreed to carry a consignment of 166 packages (21 Pallets and 145 cartons) of Medical Products and or Medical Equipment (“the Cargo”) that were stuffed into one 1’ x 40’ Reefer Container No.: CCMU5072834 loaded on board Pyramid Lines’ vessel "SUPA BHUM" (IMO: 9158757) (“the Vessel”) for sail from Penang Port, Malaysia to Sihanoukville Port, Cambodia that was thereafter transited by truck to the end receiver (“the Consignee”) in Kandal Province, Cambodia. The Cargo was shipped under a non-negotiable bill of lading numbered PEN211149482 dated 23.9.2021 (the “Bill of Lading”). [5] B. Braun’s claims against Pyramid Lines and Ceva Freight are predicated on the basis that there is “a contract of carriage on the terms of the Bill of Lading is to be implied between B. Braun and Ceva and or Pyramid”. It is B. Braun’s case that when the Cargo arrived at the Consignee’s warehouse in Cambodia, it was discovered that the Cargo was frozen and damaged due to the failure to maintain the appropriate temperature for the containerized Cargo. [6] At the material times, Ceva Freight was the Malaysian freight agent of Pyramid Lines. Ceva Freight was the party who had corresponded, together with the 3rd Defendant (“YCH”) who was the bonded warehouse keeper in Penang Port, with B. Braun in arranging, booking, loading and stowing of the Cargo from Penang Port for the contract of carriage as evidenced by the Bill of Lading. [7] B. Braun’s causes of action against Pyramid Lines and Ceva Freight are for breach of duties as bailees and or under the contract of carriage. B. Braun’s cause of action against YCH is for breach of its duties as bailees. More specifically, B. Braun claims that they and or their respective employees or agents did not exercise reasonable care in handling the Cargo during shipment, resulting in extensive damage to the entire Cargo. The Cargo was sensitive to temperature and must be maintained within the temperature range of +5°C to +20°C at all times. [8] The parties to the Bill of Lading had expressly agreed under Clause 1 of the Bill of Lading to an exclusive jurisdiction clause which provides that: “any claim against Carrier or arising from the Carriage or in relation to the Goods shall be determined exclusively by the Singapore High Court to which jurisdiction Merchant irrevocably submit”. [9] Further, it was expressly agreed in Clause 1 that the contract evidenced by or contained in the Bill of Lading shall be governed by and construed in accordance with the laws of Singapore. [10] A brief chronology of the relevant events is set out below: On or about 30.8.2021:

B. Braun instructed Ceva Freight and or Pyramid Lines via email to store the Cargo in a reefer container as per the "detail and value based on the previous shipment";

The details and value of the previous shipment were temperature thresholds of +5°C and +20°C;

YCH later confirmed and acknowledged the above instruction and temperature requirements in an email sent to B. Braun (copied to Ceva Freight) on 14.10.2021.

the temperature of the reefer container was set at 10.2°C, which was within the temperature threshold;

the Cargo were shipped on board the Vessel. On or about 16.9.2021: a) the temperature plummeted to -0.1°C, which is below the temperature threshold. On or about 23.9. 2021: a) Pyramid Non-Negotiable Seaway Bill No.: PEN211149482 was issued. On or about 12.10.2021: a) the Cargo arrived at the Consignee's warehouse in Cambodia with the reefer container's temperature at -18.1°C. The Cargo inside were found frozen and damaged. On or about 26.1.2022: a) Eurogal Surveys Ltd issued a Cargo Survey Report on behalf of B. Braun’s insurers, WK Webster Co. Ltd, confirming the temperature dropped on or about 16.9.2021. The Cargo Survey Report stated: "The temperature of the reefer container No. CGMU5072834 was reported alarm and cool down from September 16, 2021, at 0036 hours. In our opinion, the reefer container was out of order during the shipment sea voyage to Sihanoukville port and transported to the consignee's warehouse." [11] Throughout the material time, the Cargo was under the care of Pyramid Lines, Ceva Freight and YCH at different junctures. [12] Based on the above facts, B. Braun framed the following issues to be determined at the trial: a) was the reefer container, supplied by Pyramid Lines as the carrier, through local agents Ceva Freight, initially defective? b) If the reefer container was not initially defective, did YCH correctly set the temperature at its warehouse? c) Alternatively, assuming YCH set the temperature correctly at its warehouse and the reefer container was functioning correctly, did Ceva Freight appropriately pack and load the reefer container onto the Vessel? d) Alternatively, did the temperature drop occur due to the inherent unseaworthiness of the Vessel during the voyage to Cambodia? [13] After entering appearance to this action, both Pyramid Lines and Ceva Freight filed their respective applications to stay B. Braun’s legal action herein on the ground that the parties have by agreement agreed to the Singapore High Court to determine all their disputes under the said exclusive jurisdiction clause. [14] However, B. Braun contended that the Malaysian Court is the suitable forum for adjudicating this matter and that despite the exclusive jurisdiction clause in the Bill of Lading, the Singapore High Court is a forum non conveniens. Court’s Analysis and Deliberations [15] In our present case, the events giving rise to these proceedings or those alleged to have transpired are situated in Penang, Malaysia. Specifically, the Bill of Lading was issued in Penang, and the Cargo was loaded and packed into the reefer container at the warehouse of YCH, in Penang. Subsequently, the Cargo was received by Ceva Freight and or Pyramid Lines at Penang Port, Malaysia, for transportation to Sihanoukville Port, Cambodia, aboard the Vessel. Also, both Ceva Freight and YCH are residents in Malaysia. [16] At the outset, the parties quite right conceded that the existence of the jurisdiction of the Malaysian Courts is not being challenged notwithstanding the exclusive jurisdiction clause. Section 23 of the Courts of Judicature Act 1964 provides that Malaysian Courts have the jurisdiction and power to preside over any case where the cause of action arises in Malaysia, where the defendant or one of several defendants resides or has his place of business in Malaysia or where the facts on which the proceedings are based exist or are alleged to have occurred in Malaysia. [17] The damage to the Cargo had likely occurred during two significant events: the loading and packing of the Cargo at YCH's warehouse or, alternatively, once the Cargo was stowed on the Vessel shortly after loading. Both of these critical occurrences took place in Penang and Penang Port. [18] However, notwithstanding that this Court has jurisdiction, by their respective applications, both Pyramid Lines and Ceva Freight are asking this Court not to exercise its jurisdiction since the parties had agreed to submit to the exclusive jurisdiction of the Singapore High Court and B. Braun ought not to be permitted to renege on its agreement. [19] In World Triathlon Corp v SRS Sports Centre Sdn Bhd [2019] 4 MLJ 394, the Court of Appeal held that: “[19] In the present appeal, just like the American Express case, the parties here had agreed to a foreign jurisdiction clause as well as to be governed not by the laws of Malaysia but by the laws of Florida/USA. Now, the law in relation to the exclusive jurisdiction or forum selection clause is not controversial. Although generally a forum selection clause does not oust the jurisdiction of the court, the court is nevertheless obliged to give effect to it as that is what the parties had agreed (see Globus Shipping & Trading Co (Pte) Ltd v Taiping Textiles Berhad [1976] 2 MLJ 154). Disregarding such a clause would effectively mean the courts condoning a breach of the agreement. [21] So, to surmise, where there is an exclusive jurisdiction clause, effect should be given to it and a stay ought to be granted, unless the party challenging the exclusive jurisdiction clause is able to show exceptional circumstances amounting to a strong cause warranting a refusal. The burden is on the party challenging the exclusive jurisdiction clause to show why they should not be bound to honour the part of the contract where they had agreed to jurisdiction.” [emphasis added] [20] The position above was also followed in Open Country Dairy Ltd v. Able Food Sdn Bhd [2021] 7 CLJ 716 where the Court of Appeal held as follows: “[79] It is therefore clear that there was an exclusive jurisdiction clause per cl. 19.2 of the terms of trade and this was incorporated in the contracts for the purchase of the IWMP. Therefore, the respondent must be held to their bargain and a Malaysian court is obliged to give effect to the exclusive jurisdiction clause, unless the respondent, as the party seeking to avoid the application of the clause, are able to establish that there are exceptional circumstances to justify the contrary (see: World Triathlon).” [emphasis added] [21] Accordingly, it is clear that notwithstanding the exclusive jurisdiction agreement, B. Braun may still commence its action in Malaysia but it bears the onus to show exceptional circumstances amounting to “a strong cause” that effect ought not to be given to the exclusive jurisdiction or forum selection clause. [22] With regard to showing “a strong cause”, the Malaysian Courts have embraced the approach established in the English case of The Eleftheria [1969] 2 All ER 641. Specifically, our Federal Court has endorsed this approach in the case of Globus Shipping & Trading Co (Pte) Ltd v Taiping Textiles Berhad [1976] 2 MLJ 154 and more recently the Court of Appeal in United Overseas Bank Ltd & Ors v. United Securities Sdn Bhd (in liquidation) & Ors [2021] 6 MLJ 897 also took the same position. The test is stated thus: “(I) Where plaintiffs sue in [Malaysia] in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the [Malaysian] court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not;

The discretion should be exercised by granting a stay unless strong cause for not doing so is shown;

The burden of proving such strong cause is on the plaintiffs;

In exercising its discretion, the court should take into account all the circumstances of the particular case;

(V) In particular, but without prejudice to (IV), the following matters, where they arise, may properly be regarded:

In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the [Malaysian] and foreign courts;

Whether the law of the foreign court applies and, if so, whether it differs from [Malaysia] law in any material respects;

With what country either party is connected, and how closely;

Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages;

Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would-

be deprived of security for that claim;

(ii) be unable to enforce any judgment obtained;

(iii) be faced with a time-bar not applicable in [Malaysia]; or

(iv) for political, racial, religious or other reasons be unlikely to get a fair trial.” [23] To be clear, although it may seem that the circumstances to be taken into account in the exercise of the Court’s discretion for a stay application premised upon an exclusive jurisdiction clause are similar to that to an application to stay where there is no jurisdiction agreement and or where there is a non-exclusive jurisdiction clause, the test and burden are not the same. In the Commercial Conflict of Laws in Malaysia by Kwong Chiew Ee, Chai Phing Zhou, Daniel Chua Wei Chuen, Aravind Kumarr, Melvin Ng Yet Ting, published in 2022, the authors at para [2.234] sought to streamline the tests for the different 2 categories i.e. exclusive jurisdiction clause and non-exclusive jurisdiction clause as follows: [2.234] Thus, to summarise the legal position, the authors take the view in cases involving exclusive jurisdiction clause, the party seeking to depart from the clause must show "strong cause" based on the criteria set out in The Eleftheria. In cases of non-exclusive jurisdiction clauses, the court must examine the terms of the particular clause. The consequences which follow from such a clause depend on the precise construction of that particular non-exclusive jurisdiction clause. If the non-exclusive jurisdiction clause is to be construed as having the effect of an exclusive jurisdiction clause, then the "strong cause" should apply. Otherwise, the clause is relevant only as a factor in analysing whether Malaysia is forum non conveniens under the Spiliada test. This approach proposed by the authors is also not inconsistent with the previous decisions of the Malaysian superior courts. The two apex court decisions that have applied the Spiliada analysis (American Express and Petrodar) involve non-exclusive jurisdiction clauses. The Federal Court's case of Globus Shipping on the other hand is a case on exclusive jurisdiction clause. As for UOB o USSB, it was a case involving a non-exclusive jurisdiction clause having the effect of an exclusive jurisdiction clause. Thus, the "strong cause" test was rightly applied in Globus Shipping and UOB v USSB. [24] I would respectfully adopt the same analysis and further add that the test, in the case where a stay of proceedings for forum non conveniens is applied for where there is no jurisdiction clause at all, is the same as that of the case where there is a non-exclusive jurisdiction clause save that in the former case, the burden is on the defendant whilst in the latter case, the burden is on the plaintiff. Also, in all cases, the Court will always look at the question where the ends of justice will be best served. [25] For the reasons that I will set out below, I agree with Mr Jeremy Joseph, learned counsel for B. Braun that a strong cause has indeed been demonstrated in this case for this Court to exercise its discretion not to stay the action in favour of the Singapore High Court, which I find is the forum non conveniens. Governing law of the contract of carriage [26] The Malaysian Carriage of Goods by Sea (Amendment) Act 2020 and the Carriage of Goods by Sea (Amendment of the First Schedule) Order 2021 (“COGSA”) came into force on 15.7.2021 and gives force to the Hague-Visby Rules under its Schedule and provides for its compulsory application to bills of lading and similar documents of title issued in relation to all outward-bound cargoes. [See: Trengganu Forest Products Sdn Bhd v. Cosco Container Lines & Anor [2007] 5 CLJ 720] [27] The Bill of Lading in the instant case in fact adopts the legislation. Clause 5.1 of the Bill of Lading provides as follows: “5.1 If the Carriage is a Port to Port Shipment, the responsibility of Carrier shall be limited to that Carriage from and during loading onto the Vessel up to and during discharge from the Vessel. The liability of Carrier shall be determined in accordance with: (a ) any applicable legislation making the Hague Rules or Hague-Visby Rules compulsorily applicable to this Bill of Lading;” [28] Simultaneously, Clause 6.2 of the Bill of Lading provides as follows: “6.2 If the stage of Carriage at which the loss or damage occurred is known or Merchant can prove such stage beyond reasonable doubt, the liability of Carrier shall be determined as follows: (a) if it is established that the loss or damage occurred at or during the stage of the Carriage referred to in Clause 5, then in accordance with the provisions thereof” [29] As the Vessel departed Penang Port, Malaysia with the Cargo on board to Cambodia, it is therefore indisputably clear that the Malaysia COGSA applies compulsorily in this case. This is a factor in favour of permitting the action to stay in Malaysia although on its own, it is not sufficient to satisfy ‘a strong cause’ test but there are other factors in this case that make it so. The Plaintiff out of time to file in Singapore and is prejudiced by the stay. [30] There is no dispute that the one-year time limit stipulated by Article III, rule 6 of the Hague-Visby Rules is applicable to B Braun’s claims against Pyramid Lines and or Ceva Freight. This provision explicitly states that legal actions against the carrier must be initiated within one year from the delivery date of the goods. [31] In the current scenario, the Cargo was delivered to the Consignee in Cambodia on the 12.10.2021. According to the Hague-Visby Rules, B. Braun has until the 11.10.2022 to file their claims against Pyramid Lines and or Ceva Freight. [32] B. Braun lodged this lawsuit on the 30.9.2022, well within the one-year time frame specified by the Hague-Visby Rules. However, if a stay of this proceedings is granted, effectively pausing the ongoing proceedings in the present jurisdiction, B. Braun's ability to pursue its claim against Pyramid Lines or Ceva Freight in Singapore would effectively be out of time. Such an outcome would result in B. Braun’s claim herein being time-barred under the Hague-Visby Rules, causing substantial prejudice to its rights and denying B.Braun of the opportunity to seek legal redress. [33] As such, granting a stay in favour of the exclusive jurisdiction agreement, would lead to a grave miscarriage of justice as B. Braun will be deprived of the chance to have its case heard on its merits and potentially recover the rightful compensation for the damages sustained. To my mind, this constitutes a compelling reason for this Court to permit B. Braun to deviate from the provision of the exclusive jurisdiction clause. Indeed, when learned counsel for Pyramid Lines was asked if Pyramid Lines would be prepared to waive raising the time bar defence in the event a stay is ordered, she was not prepared to give a positive response. [34] In Baghlaf Al Zafer Factory Co BR for Industry Ltd v Pakistan National Shipping Company and another [1998] 2 Lloyd’s Rep. 229, such a waiver was considered to be a relevant factor in considering whether a stay ought to be granted. “Where a Plaintiff has acted reasonably in commencing proceedings in England and in allowing time to expire in the agreed foreign jurisdiction, a stay of the English proceedings should only be granted on terms that the Defendant waives the time bar in the foreign jurisdiction”. [35] In this instant case, there is no suggestion that B. Braun has not acted reasonably in commencing proceedings in this Court and yet no waiver of the time bar was forthcoming from Pyramid Lines and or Ceva Freight at all in pursuing their respective applications for stay. The refusal to provide the waiver suggests that Pyramid Lines and Ceva Freight do not genuinely desire a trial in the Singapore High Court but are seeking to deprive B. Braun of a juridical advantage in the present proceedings. Reasonable and appropriate for B. Braun to commence proceedings in Malaysia. [36] If there is any doubt, there are many factors in this case which, when viewed objectively, made it reasonable and to my mind appropriate for B. Braun to commence proceedings in Malaysia. These are as follows:

quite apart from Pyramid Lines and Ceva Freight being sued, B. Braun has also commenced this action against YCH who has no direct contractual relationship with B. Braun in respect of the carriage of the Cargo. Since YCH is resident in Malaysia and the cause of action against YCH arose in Malaysia, this makes the Malaysian Courts to be the appropriate and rightful venue for addressing the claims against YCH. In fact, YCH, quite rightly, has not suggested that Singapore is the appropriate forum to hear the disputes;

it is not submitted that B. Braun’s claim against YCH is otherwise than a genuine claim. As such, in the event this Court were to grant Pyramid Lines or Ceva Freight a stay of the present proceedings and compel B. Braun to commence its claims against them in the Singapore High Court, this may lead to an unsatisfactory situation where conflicting judgments or findings of facts regarding the parties’ responsibility for the damage being determined. The law regarding the avoidance of irreconcilable judgments where the facts of the disputes are the same has frequently been found to be decisive in favour of the place where all defendants can be sued, as the proper place. This principle was enunciated in the UK Supreme Court case of Lungowe and others v Vedanta Resources plc and Another [2019] 2 All ER (Comm) 559: “If substantial justice was available to the parties in Zambia as it is in England, it would offend the common sense of all reasonable observers to think that the proper place for this litigation to be conducted was England, if the risk of irreconcilable judgments arose purely from the claimants' choice to proceed against one of the defendants in England rather than, as is available to them, against both of them in Zambia. For those reasons I would have concluded that the claimants had failed to demonstrate that England is the proper place for the trial of their claims against these defendants, having regard to the interests of the parties and the ends of justice.” [emphasis added]

If B. Braun has to pursue Pyramid Lines and or Ceva Freight in the Singapore High Court as agreed, separately from its claims against YCH, this will also result in B. Braun having to incur unnecessary legal costs and expenses. The position will be further aggravated in the event the two separate courts were to attribute fault differently resulting in no immediate recourse available to B. Braun;

There is also a not insignificant disparity in terms of legal costs between Malaysia and Singapore. Opting for a Malaysian venue offers a more cost-effective alternative regarding court charges, filing fees, hearing expenses, legal fees, and various administrative costs, thus alleviating the financial strains on those involved in the litigation. [37] Further to the above, other than the fact that Pyramid Lines is a company based in Singapore, there is also no nexus between B. Braun’s claims and Singapore. More specifically:

the focal points of B. Braun’s claims revolve around the stowage, the precise temperature configuration, and the loading of the Cargo, all of which transpired in Penang, either at YCH's warehouse or during the transfer from the Penang load port to the Vessel by Ceva Freight. In this regard, both Ceva Freight and YCH are Malaysian-based entities;

as such, the evidence concerning the factual issues related to B. Braun's claims, including witnesses involved in the formation of contract terms and the parties' roles in configuring and stowing the cargo in respect of the temperature-sensitive reefer container in this case as well as the assessment of the extent of losses, are predominantly located and more readily accessible in Malaysia;

to compel all the witnesses to appear in Singapore would entail significant inconvenience and expenses for B. Braun. Considering the balance of convenience and costs, it is evident that holding the trial in Malaysia is more appropriate. If there are any witnesses based in Singapore, their evidence can be obtained through remote communication. Furthermore, if the Singapore-based witnesses were required to travel to Kuala Lumpur, it would not pose an undue inconvenience;

more importantly, it may be necessary for parties to compel the attendance of relevant witnesses and given that these witnesses are mainly in Malaysia, to have the proceedings in Malaysia will mean that these witnesses can be compelled to attend court to testify. If the action is before the Singapore High Court, B. Braun may not be able to compel a material non-party witness to testify to its prejudice;

also, Pyramid Lines served as both the contractual carrier and owner of the Vessel. Pyramid Lines being headquartered in Singapore, they operate as an international cargo carrier. Consequently, Pyramid Lines is well-versed in navigating diverse legal systems and complying with various international conventions and treaties governing the transportation of goods by sea. Hence, there would be no prejudice to Pyramid Lines if this matter were to be heard in Malaysia. If fact, no prejudice has been demonstrated by Pyramid Lines or Ceva Freight at all. [38] The case of World Triathlon, which placed emphasis on the defendant's place of business as an important factor can be distinguished. In the World Triathlon Corp case, the circumstances revolved around a Malaysian plaintiff suing a Florida-based defendant concerning the termination of a contract with an exclusive jurisdiction clause designating Florida. Importantly, the act of termination central to the matter took place in Florida, and the factual issues and evidence were more readily accessible in Florida. In contrast, the focal points in our case are Penang making Malaysia clearly the jurisdiction which has the most real and substantial connection with the action. [39] Even the Court in World Triathlon Corp accepted that the Court in considering an application to stay for forum non conveniens looks not to convenience but the suitability or appropriateness of the relevant jurisdiction: [17] … Lord Goff, in that case, also noted that the Latin tag ‘forum non conveniens’ does not mean the question is one of convenience but of the suitability or appropriateness of the relevant jurisdiction. In doing so, the court would look to the forum which has ‘the most real and substantial connection’ with the action. The then Supreme Court in American Express, agreed with this principle as expressed and also noted with approval Lord Goff’s observation on the meaning of forum non conveniens. [18] In establishing the forum which has the most real and substantial connection with the cause of action, Lord Goff observed that the court will look to several factors including convenience and expense, availability of witnesses, the law governing the relevant transaction, and the places where the parties resided or carried on business. [emphasis added] [40] Given these considerations, it is my judgment that this case presents compelling reasons to depart from the exclusive jurisdiction clause stipulated in the Bill of Lading. B. Braun has not only demonstrated to the satisfaction of this Court that Malaysia is the jurisdiction with the most real and substantial connection with the disputes but that there is “a strong cause” based on the criteria set out in The Eleftheria. Ceva Freight’s reliance on Himalaya Clause [41] As alluded to above, Ceva Freight was at all material times the Malaysian’s freight forwarder for Pyramid Lines. Ceva Freight is not stated as a party to the Bill of Lading although it did sign the Bill of Lading as agent for Pyramid Lines. Yet, in its application for stay before this Court, Ceva Freight is relying on the exclusive jurisdiction clause in the Bill of Lading. [42] It is Ceva Freight’s case that it is entitled to rely on Clause 1 thereto by reason of B. Braun’s pleaded position that there is an implied contract with Ceva Freight (which for avoidance of doubt, the foregoing analysis and determination in respect of Pyramid Lines apply equally to Ceva Freight) and also based on Clause 4.3 which provides thus: “Without prejudice to the generality of the foregoing, every such person shall have the benefit of all the Rights and Defences of Carrier under or pursuant to this Bill of Lading as if the same were expressly made also for such person’s benefit. For the foregoing purposes, Carrier contracts for itself as well as agent and trustee of all such persons.” [43] The aforesaid provision is commonly known as the “Himalaya Clause”. The clause derives its name from the case, The Himalaya; Adler v Dickson and Another [1954] 2 Lloyd's Rep. 267. It is a contractual provision intended to confer rights and benefits on an entity that is not a direct party to that contract. [44] A Himalaya Clause extends the benefit of rights and defences conferred by the bill of lading on the carrier to the carriers’ agents, service providers or independent contractors in a multimodal logistics chain. The UK Court of Appeal in the case of Adler v Dickson found that these benefits in a contract of carriage such as a bill of lading, are to exempt, as far as possible, the servants, agents, and independent contractors employed by the contractual carrier from liability to other parties to the contract, such as the shipper or consignee. [45] The House of Lords in the case of Midland Silicones Ltd. v. Scruttons Ltd. [1962] A.C. 446 at page 474 indicated how a Himalaya Clause would apply: "I can see a possibility of success of the agency argument if (first) the bill of lading makes it clear that the stevedore is intended to be protected by the provisions in it which limit liability, (secondly) the bill of lading makes it clear that the carrier, in addition to contracting for these provisions on his own behalf, is also contracting as agent for the stevedore that these provisions should apply to the stevedore, (thirdly) the carrier has authority from the stevedore to do that, or perhaps later ratification by the stevedore would suffice, and (fourthly) that any difficulties about consideration moving from the stevedore were overcome." [46] However, the Himalaya clause does not confer on Ceva Freight the right to the exclusive jurisdiction clause at all. That this is so has in fact been decided by Lord Goff sitting in the Privy Council on an appeal from the Hong Kong Court of Appeal in The Muhkutai [1996] AC 650. [47] In that case, the shipowners chartered their vessel to time charterers. The vessel was sub-chartered to shippers for the carriage of a cargo from Indonesia to China. The time charterers issued a bill of lading which contained a Himalaya clause, i.e. a clause which purported to confer on subcontractors the benefit of “… all exceptions, limitations, provision, conditions and liberties benefitting the carrier”. It also contained a clause conferring exclusive jurisdiction on the Indonesian courts. [48] After discharge of the cargo, the cargo owners issued a writ against the vessel in Hong Kong claiming that the cargo was damaged on delivery. The shipowners sought to rely on the jurisdiction clause, as being a provision within the meaning of the Himalaya clause. The Hong Kong Court of Appeal held that the shipowners were not entitled to rely on the clause because they were not parties to the bill of lading. Nor had there been a bailment on terms which included the jurisdiction clause. [49] On appeal to the Privy Council which dismissed the appeal, Lord Goff of Chieveley traced the development of Himalaya clauses as a device to accommodate various situations arising in the context of carriage of goods by sea where there was a commercial expectation that the benefit of certain terms of the contract of carriage should be made available to parties involved in the adventure who were not parties to the contract - primarily stevedores, but in some cases also shipowners relying on terms in charterers' bills of lading to exempt them from possible liability to cargo owners and consignees. Lord Goff opined that that the exclusive jurisdiction clause did not come within the Himalaya clause because: “Such a clause can be distinguished from terms such as exceptions and limitations in that it does not benefit only one party, but embodies a mutual agreement under which both parties agree with each other as to the relevant jurisdiction for the resolution of disputes. It is therefore a clause which creates mutual rights and obligations” [50] While the Himalaya clause in the contract in question referred to subcontractors enjoying the benefit of a 'provision' for the benefit of the carrier, this term must be interpreted ejusdem generis with “exceptions and limitations”. The function of a Himalaya clause was: “to prevent cargo owners from avoiding the effect of contractual defences available to the carrier by suing in tort persons who perform the contractual services on the carrier's behalf. To make available to such a person the benefit of an exclusive jurisdiction clause in the bill of lading contract does not contribute to the solution of that problem.” [51] In our case, the Himalaya clause in Clause 4.3 of the Bill of Lading reads as follows: “Without prejudice to the generality of the foregoing, every such person shall have the benefit of all the Rights and Defences of Carrier under or pursuant to this Bill of Lading as if the same were expressly made also for such person’s benefit. For the foregoing purposes, Carrier contracts for itself as well as agent and trustee of all such persons.” [52] To my mind, the ‘benefit” stated in Clause 4.3 does not extend to the exclusive jurisdiction clause. It is also not necessary to the policy objective of the Himalaya clause. [53] Thus, Ceva Freight’s application to stay the proceedings on the basis that it is entitled to rely on the exclusive jurisdiction clause in Clause 1 of the Bill of Lading under the Himalaya clause is wholly without any merits. Conclusion [54] In the premises, both Pyramid Lines’ and Ceva Freight's applications in Enclosures 11 and 13 respectively are dismissed with costs fixed at RM 7,000.00 for each application subject to payment of allocator. Dated the 6th day of November 2023 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 Counsel:

Mr. Jeremy Joseph with Mr. Daniel Tan (PDK) for Plaintiff

Nurul Ameerah Natasya for 1st & 2nd Defendants

Hanna Suhaila Haizal for 3rd Defendant

World Triathlon Corp v SRS Sports Centre Sdn Bhd [2019] 4 MLJ

Open Country Dairy Ltd v. Able Food Sdn Bhd [2021] 7 CLJ 716 3. Globus Shipping & Trading Co (Pte) Ltd v Taiping Textiles Berhad [1976] 2 MLJ 154 4. United Overseas Bank Ltd & Ors v. United Securities Sdn Bhd (in liquidation) & Ors [2021] 6 MLJ 897 5. Trengganu Forest Products Sdn Bhd v. Cosco Container Lines & Anor [2007] 5 CLJ 720 6. Baghlaf Al Zafer Factory Co BR for Industry Ltd v Pakistan National Shipping Company and another [1998] 2 Lloyd’s Rep.

Lungowe and others v Vedanta Resources plc and Another [2019] 2 All ER (Comm) 559 8. The Himalaya; Adler v Dickson and Another [1954] 2 Lloyd's Rep. 267 9. Midland Silicones Ltd. v. Scruttons Ltd. [1962] A.C.

The Muhkutai [1996] AC 650

Section 23 of the Courts of Judicature Act 1964 2. Malaysian Carriage of Goods by Sea (Amendment) Act 2020 3. Carriage of Goods by Sea (Amendment of the First Schedule) Order 2021 4. Order 12 Rule 10 of the Rules of Court 2012 5. Article III, rule 6 of the Hague-Visby Rules

Commercial Conflict of Laws in Malaysia by Kwong Chiew Ee, Chai Phing Zhou, Daniel Chua Wei Chuen, Aravind Kumarr, Melvin Ng Yet Ting, published in 2022