Bahtera Offshore (M) Sdn Bhd v Etiqa General Insurance Berhad (WA-27NCC-38-08/2025)

1 Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Dalam Negeri Wilayah Persekutuan Kuala Lumpur, Malaysia (Bahagian Dagang) Guaman Sivil No. : WA - 27 NCC - 38 - 08 / 2025 Antara Bahtera Offshore (M) Sdn Bhd Dan 1) Etiqa General Insurance Berhad 2) QBE Insurance (Malaysia) Berhad 3) Generali Insurance Malaysia Berhad - Defendan Grounds of Decision Introduction

1. The Plaintiff P filed a notice of application dated 6.11.2025 in Enclosure 13 for the determination of certain questions of law and fact Order 33 application . Enclosure 13 is made under Order 33 rule 2 and rule 5 of the Rules of Court 2012 ROC 2012 .

2. Enclosure 13 prayed for the following : 1) That this Honourable Court determine three (3) questions of law and / or fact, and as set out in the Affidavit in Support of this Application, namely the first question (a), which is a question of law, the second question (b), which is a question of law and / or fact, and the third question (c), which is a mixed question of law and fact, as follows : a) Whether, in respect of section 39 (5) of the Marine Insurance Act 1906 and the law of attribution, the knowledge and / or conduct of the / servant of 06/03/2026 07:45:10 WA-27NCC-38-08/2025 Kand. 34 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 of indemnity under the insurance contract; b) In respect of causation and privity under section 39 (5) of the Marine Insurance Act 1906, whether the Defendants have with sufficient clarity stated in their Amended Statement of Defence which particular alleged unseaworthiness of the Vessel caused the flooding and sinking of the Vessel and that the Assured was privy to such alleged unseaworthiness when the Vessel was allegedly sent out to sea by the Assured; and c) Whether, the ingress of seawater into the Vessel (loss of watertight integrity of the Vessel) in adverse weather conditions on 13.2.2024 resulting in the flooding and sinking of the Vessel on 14.2 2024 is treated as a loss by the perils of the sea and if so, whether the Defendants are liable to indemnify the Plaintiff under the insurance contract which does not contain any relevant express exception / exclusion clause which related to loss caused by unseaworthiness of the Vessel; 2) That if the first question (a) set out in paragraph 1 (a) above is answered in the negative, the second question (b) set out in paragraph 1 (b) above is answered in the [?] affirmative, and the third question (c) set out in paragraph 1 (c) above is answered in the affirmative (each outcome being in favour of the Plaintiff), then this Honourable Court may, pursuant to Order 33 rule 5 of the Rules of Court 2012, proceed to enter judgment against the 1st, 2nd and 3rd Defendants as claimed and or prayed in the Writ and Amended Statement of Claim;

3. On 11.2.2026, I dismissed P Order 33 application in Enclosure 13. Here are my reasons. Background facts

4. P is claiming a sum of RM 17 million against the Defendants under a marine hull and machinery policy incident involving the sinking of the vessel known as vessel on 14.2.2024. **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

5. In the amended statement of claim dated 23.9.2025, P avers that the fortuitous rapid ingress of seawater was from an unidentified source (probably from hull puncture developed after contacting the river / sea bottom) resulting in the sinking and loss of the vessel. Which allegedly is covered under clause 6.1.1 of the Institute Time Clauses - Hulls 1.10.83 (perils of the seas, rivers, lakes or other navigable waters), and clause 6.1.1 of the Institute Time Clauses - Hulls Disbursements and Increased Value 1.10.83.

6. T defence is that the cause of the sinking of the vessel was not due to the perils of seas, as alleged by P. It was due to the unseaworthiness of the vessel, prior to the commencement of its voyage from Miri and Bintulu. Further and alternatively, the Defendants also rely on any breach of warranty in relation to (Class), the International Safety Management Code (ISM Code), and terms and conditions and exclusions in the policy. The applicable law

7. Order 33 rule 2 of the ROC 2012 reads :

2. Time of trial of questions or issues (O. 33, r. 2) The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

8. Order 33 rule 5 of the ROC 2012 reads : **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

5. Dismissal of action after decision of preliminary issue (O. 33, r. 5) If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or

9. The test on whether a question or issue may be summarily tried under Order 33 of the ROC 2012 is whether a determination of such question or issue will result in a substantial saving of time and expenditure, which otherwise would have been expended should the action go for trial. (See the Court of Appeal cases of Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8; Lim Thiam Huat & Anor v MBF Holdings Bhd & Anor and other appeals [2018] MLJU 662).

10. The Court of Appeal in Hiap Soon Hong Sdn Bhd v Leopad Assets Sdn Bhd [2018] 1 LNS 664 held that for Order 33 of the ROC 2012 to be applied, the relevant facts must not be in dispute. In this respect, we are obliged to note that O. 33 r. 2 and also O. 33 r. ROC 2012 are intended to save time and unnecessary costs by avoiding the substantial expense of a trial. However, in order for Order 33 to have any efficacy, it is necessary for the judge to ensure, at the outset, that the relevant facts are not disputed. This can be done by ordering the parties either to agree to the facts stated in the pleadings or to file an agreed statement of facts. [27] Additionally, such agreed facts must deal completely with the issues or questions that are intended to be raised for disposal under Order 33. In other words, all the material facts necessary for the consideration of the matter must have been proved or admitted for the court to have the jurisdiction to hear the matter under Order 33 ROC 2012. [28] In the event that the parties are unable to agree to the facts that are necessary for the disposal of the issues or questions, the judge must decline to proceed further and set the matter down for trial. It is now common **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 knowledge that, unlike some years ago, civil suits filed nowadays are disposed of in a trial within a matter of months. This has been achieved largely through the use of efficient case management and the proactive approach of judges to ascertain the issues between the litigants at an early stage. Litigants are also encouraged to conform to reasonable timelines thus ensuring early disposal of disputes. [29] In this way, the utility of short cuts by resort to Order 33 and Order 14A ROC 2012 is now diminished. In any case, such short cuts are only useful if they have the effect of disposing of the cause or matter as envisaged by O. 33 r. 5. It will be a waste of time if after hearing the preliminary issues the litigation is not resolved (see Chan Kum Loong v. Hii Sui Eng [1979] 1 LNS 10; [1980] 1 MLJ 313). In the end, it may be more useful and advantageous for parties to frame the same issues for trial. The disputed facts can then be taken at the trial through the examination of the relevant witnesses and the matter resolved fairly quickly. So the argument that such short cuts lead to substantial saving of

11. An application under Order 33 of the ROC 2012 is not a suitable recourse where facts are in dispute or where extrinsic evidence needs to be adduced. (See the High Court case of Krishnan Rajan a/l N Krishnan v Bank Negara Malaysia & Ors [2003] 1 MLJ 149).

12. Further, the issues in dispute must only require an interpretation of the facts rather than the finding of facts, as that is a matter which should be left to full trial. If there is a dispute on the facts which require a finding to be made by the court, Order 33 of the ROC 2012 would not be a suitable option. (See the High Court case of Mat Shah bin Safuan v Amber Memory Sdn Bhd [2020] MLJU 1569).

13. As such, under Order 33 of the ROC 2012, it must be shown that:-

14. Bearing these legal principles in mind, it is my finding that 33 application is not appropriate. The reason is because: - (a) the Order 33 application does not substantially save time and costs; and (b) there are numerous relevant facts in dispute between the parties. Here is my explanation. The Order 33 application does not substantially save time and costs

15. As mentioned earlier, the main test for an application under Order 33 of the ROC 2012 to be maintained is that there must be a substantial saving of time and expenditure. From the issues listed in Order 33 application, it is evident that the litigation will be far from resolved even after hearing these preliminary issues.

16. Based on the amended statement of claim and the defences as set out in the amended statement of defence, the issues in this matter can be summarised as follows :

17. In light of the above, it would be far more efficient to have all these issues ventilated at trial. This will also allow for the testimony of witnesses and extrinsic evidence to be adduced. That would be crucial in fully resolving the issues to be tried in this suit. Ultimately, with Order 33 application, there will be no substantial saving of time and expenditure. There are relevant facts in dispute between the parties **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

18. P has also failed to establish that there are no relevant facts in dispute between the parties. On the contrary, there are disputes on the facts, as follows.

19. First, the the Defendants did not dispute (at paragraph 25 of Enclosure 14) is inaccurate. The Defendants have pleaded its case and defence at paragraphs 17 to 24 of the amended defence, challenging the findings of both the MCO and ABL reports.

20. Second, the issue of whether the vessel was sent out to sea in an unseaworthy state is heavily disputed by P and the Defendants. This is set out below. Factual Claim amended statement of claim dated 23.9.2025) position (amended statement of defence dated 7.10.2025) Vessel status The vessel was reasonably fit to continue with the voyage to Batam, Indonesia despite the initial leak (see paragraph 14). The vessel was unseaworthy before it commenced its voyage from Miri and Bintulu, with the privity of P, and was simply not reasonably fit in all respects to encounter the ordinary perils of the seas (see paragraphs 21 to 25). Engine and defect status - Only two out of four main engines were operational (port and starboard outer main engines), and only one generator unit (port) was in use when it left Miri. The machinery condition report dated 31.1.2024 identified eight items as defects pending rectification, with no evidence of rectification before sailing (see paragraph 23). **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Bilge pump malfunction Deployment of two electrical pumps to remove the water as it came in. This would suggest that the seawater ingress was only needed to be pumped out intermittently rather than continuously (see paragraph 36). The bilge pump was not functioning prior to the commencement of voyage. P allegedly deployed two portable electrical pumps, however, there is no evidence showing that classification society (Class) had given approval for marine use and no evidence to prove that the two portable electrical pumps have the same capacity as the bilge pump (see paragraph 21

21. The issue of whether the vessel was sent out to sea in an unseaworthy condition with the privity of the assured (P in this case) is also heavily in dispute by P and the Defendants. This is described below. Factual Claim dated 23.9.2025) position (amended statement of defence dated 7.10.2025) Knowledge of P The DPA (Designated Person Ashore) is an employee / servant of P and is not authorised to give instructions to the Captain in respect of the running of the vessel (see paragraph 37). The DPA did not at any time instruct the Captain to proceed to Batam. The DPA does not have the authority to instruct the Captain with regards to the running and operations of P failed to undertake any repairs at Bintulu with regard to the leak, which was known to the DPA and who nevertheless instructed the vessel to proceed **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 the v supplementary affidavit dated 6.11.2025 in Enclosure 15). The DPA did not instruct the Captain to sail out of Bintulu as the DPA does not have the authority to do so supplementary affidavit). The DPA is not a person within P who has the necessary authority to instruct the Captain in the operations and running of the vessel supplementary affidavit). with the voyage to Batam (see paragraph 23

22. Third, P at paragraph 30 of its affidavit in support section 39 (5) makes it abundantly clear that there is no implied warranty of

23. According to the Defendants however, ing section 39 (5) of the Marine Insurance Act 1906 does not consider the exception under that provision. The policy in the instant case is a time policy. Accordingly section 39 (5) of the Marine Insurance Act 1906 applies when the vessel is sent to sea in an unseaworthy state, with the privity of the assured (P in this case). By doing so, the insurer (the Defendants in this case) is not liable for any loss attributable to unseaworthiness.

24. In light of the above, the present case involves substantial facts which are in dispute between the parties, as set out in the pleadings as well as various affidavits. This is therefore a matter that needs to be resolved at trial. **Note : Serial number will be used to verify the originality of this document via eFILING portal 11

25. The questions of law and fact to be determined in advance, as set out by P, are misconceived. P is seeking judicial shortcuts vide its Order 33 application to pre - determine this matter, when the questions of law and fact to be determined in advance put forward by P represent only a few out of several issues to be tried.

26. In the premises, Order 33 application is not suitable. The questions of law and fact to be determined in advance put forward by P, should be ventilated at trial together with other relevant issues in dispute. They are not suitable to be determined in advance. Doing so would not substantially dispose of the matter or render the trial of this matter unnecessary. It would be a waste of time to hear these issues separately, as it would not resolve the litigation. Conclusion

27. For the reasons above, I dismissed P Order 33 application in Enclosure 13. I awarded costs of RM 8,000 to the Defendants. Dated 5 March 2026 Quay Chew Soon Judge High Court of Kuala Lumpur (Commercial Division NCC 2) **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Counsels Mohan Das Nair, Ravin Woodhull and Yong Chee Kong (Messrs. Azhar Yong & Co.) for the Plaintiff James Premkumar David and Lim Yik Jin (Messrs. Shaikh David & Co.) for the Defendants Case reference 1. Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8 2. Lim Thiam Huat & Anor v MBF Holdings Bhd & Anor and other appeals [2018] MLJU 662 3. Hiap Soon Hong Sdn Bhd v Leopad Assets Sdn Bhd [2018] 1 LNS 664 4. Krishnan Rajan a/l N Krishnan v Bank Negara Malaysia & Ors [2003] 1 MLJ 149 5. Mat Shah bin Safuan v Amber Memory Sdn Bhd [2020] MLJU 1569 Legislation reference 1. Order 33 rule 2 and rule 5 of the Rules of Court 2012 **Note : Serial number will be used to verify the originality of this document via eFILING portal