Tsa Industries Sdn Bhd v Pemunya dan atau Orang Lain yang Berkepentingan dalam Kapal Msr No 1 (Imo 9141742) Dari Pelabuhan Panama (WA-27NCC-44-10/2022)

The Plaintiff P is the consignee of the annealing furnace carried D vessel MSR No 1 vessel D, Maritime Silk Route International Shipping Co Ltd, was the former owner of the vessel.

P claims that D has breached its contractual and bailment duty to of the vessel ship master had failed to exercise the duty of good seamanship in securing the cargoes on the vessel as well as recklessly sailing into the path of typhoon Muifa following causes of actions :- (i) breach of the contract of bailment as well as bailment under common law; (ii) breach of the duty of good seamanship; and (iii) negligence.

In turn, D made a counterclaim against P for wrongful arrest of the vessel. After a full trial, I dismissed both . Here are the grounds of my judgment. Background facts

The salient facts are as follows :

sub - charterer - chartered the vessel from Jiushan Shipping Co. Jiushan Jiushan was the charterer who chartered the vessel from D.

In September 2022, P purchased an annealing furnace from Hongkong Chengxin International Development Co. Limited Hongkong Chengxin Union Ocean annealing furnace to P using vessel.

Acting through its agent, Union Ocean, Hongkong Chengxin entered into a charterparty fixture note with the sub - charterer for the carriage of the annealing furnace from Shanghai to Port Klang. Under the fixture note, Hongkong Chengxin agreed that the annealing furnace could be carried on deck.

Pursuant to the fixture note, the sub - charterer, through its agent Shanghai Rongshine International Ocean Shipping Agency Co Shanghai Rongshine a Bill of Lading No. Bill of Lading cargo ) on board the vessel on 13.9.2022, for carriage from Shanghai to Port Klang.

The front of the Bill of Lading contains the following notation, which expressly states that the cargo was carried on deck at the : f and Quality f Freight Prepaid On which 23 packages on Deck a : The Carrier not being responsible for loss or damage howsoever arising.

At the trial, DW2 (an operating manager in the operation department of the sub - charterer) clarified that there has been a typographical error in the notation above. The correct notation should read as follows : N/R f and Quality

Clause 15 on the reverse side of the Bill of Lading further provides that the carrier shall not be liable for cargo carried on deck of the vessel : Deck Cargo, Live Animals and Plants. Cargo on deck, plants and live animals are received, handled, and the Carrier shall not be liable for loss thereof or damage thereto

The Bill of Lading was signed by Shanghai Rongshine as agent for and on behalf of the sub - charterer of the vessel. And by Ocean Union as agent for and on behalf of the shipper, Hongkong Chengxin.

While on voyage from Shanghai to Port Klang, the vessel encountered the typhoon MUIFA. As a result :- (i) 8 packages of the cargo fell overboard into the sea during the voyage; and (ii) 15 packages of the cargo that remained on board sustained varying degrees of damage.

P says that a the contract of carriage, negligence, breach of duty and bailment to deliver the cargo in good condition and by failing to exercise the duty of good seamanship to ensure the voyage is safe for the cargoes by taking into account the forecasted weather for the period of voyage, it has caused loss and damage to the cargo.

According to D :

Loading of the cargo on board the vessel was completed on 13.9.2022. On the same day, the vessel departed the port of Shanghai and proceeded towards Jeju island of South Korea for the purpose of storm avoidance based on the guidance from the Japanese Air Guide, Weathernews Inc.

At that time, the typhoon was approximately 410 nautical miles from Shanghai and was moving slowly at a speed of about 1 - 2 knots towards the port of Shanghai. At that speed, the typhoon was expected to reach Shanghai in several more days, which afforded the vessel sufficient time to navigate away from the

By midnight on 13.9.2022, while the vessel was proceeding towards Jeju island for storm avoidance, typhoon Muifa intensified to wind force 8 and was tracking towards the port of Shanghai.

On 14.9. caught up with the vessel, causing heavy rolling and pitching due to rough sea conditions. By 0510 hours, wind forces were between force 8 and 9, with gusts up to force 10 and waves measuring approximately 3 to 4 metres in height.

Between 0518 and 0739 hours, the crew went on deck to inspect the cargo lashings and to tighten and reinforce them in order to further secure the cargo in light of the rough sea conditions. At 0840 hours, the vessel was rolling at approximately 25 degrees, causing it to shake violently and roll from side to side. This resulted in the fracture of the deck cargo lashings, causing some cargoes to shift and collide with one another. As a result, 8 out of the 23 cargo packages fell into the sea, and 12 of the remaining packages sustained damage to varying degrees incident .

On 27.9.2022, following the incident, the vessel arrived at Port Klang, Malaysia. The vessel was arrested by P on 4.10.2022.

A joint survey was conducted on 6, 7 and 19 October 2022 by :-

Reliance Inspection (M) Sdn Bhd on behalf of P; (ii) Links correspondent; and (iii) Boyd Marine Consultants representing charterer.

Subsequently, P demanded security in the sum of USD 1,240,536.55 and RM 400,000 (inclusive of interest and costs) for the release of the vessel. P refused to accept a letter of undertaking to be issued by West of England Insurance Services (Luxembourg) S.A., the v protection and indemnity insurers, as alternative security.

The demanded security was thereafter paid by the sub - charterer, for and on behalf of D, pursuant to the terms of an agreement entered into between the sub - charterer and D on 17.1.2023.

The vessel was released from arrest on 31.1.2023.

P contends that its claim ought to be allowed for the following reasons. The Defendant as a carrier had breached the terms under the Bill of Lading by causing loss and damages to the cargo

9.

Pursuant to the Bill of Lading, there was a contract of bailment between the parties. (See section 101 of the Contracts Act 1950). Therefore, D, as a bailee was required to take reasonable care of the cargo while in its custody. And to discharge and deliver the cargo in good order and condition and in full. As such, the onus lies on D to prove that the loss and damage of the cargo entrusted to D were not caused by D or any of the members in the vessel.

D had failed to discharge its burden of proof for the following reasons:

D presented no factual witness cargo;

sections 104 and 105 of the Contracts Act 1950. Where D is required to exercise all reasonable care as a prudent carrier or bailee would, to ensure the safety of the voyage and the proper carriage of the cargo; and

Upon the loss of and damage to the cargo entrusted to D, the doctrine of res ipsa loquitur applies such that there is prima facie evidence of negligence. D has failed to rebut this inference for the reasons set out below :

The ship master and chief officer failed to attend court to testify, thereby resulting in D presenting no evidence for the court to decide on its pleaded defence;

(ii) The lashings of the cargo are inadequate;

(iii) The ship master failed to consider nearer or alternative ports or places of shelter, other than Jeju island, to avoid typhoon Muifa; and

(iv) The ship master negligently exercised his discretion in deciding to commence the voyage and to sail to Jeju island. The Defendant is liable for all loss and damage suffered in respect of the cargo arising from its breach of the contract of bailment and negligence

In light of the foregoing, the loss of and damage to the cargo was care and diligence in the performance of its obligations under the contract .

P claims the total loss suffered (including salvage costs), less salvage value. P paid USD 1,146,032 for the cargo and incurred salvage costs of RM 311,284.12. P also received RM 82,470.03 from the sale of the salvaged c (manager of Tuck Sun Logistics (M) Sdn Bhd, the logistic service provider to P) unchallenged testimony and the relevant invoices and proof of payment.

P also claims the costs of commissioning the survey reports in the sum of RM 25,578, being the costs incurred in engaging an independent surveyor to conduct inspections on board the vessel in relation to the loss of and damage to the cargo. The Defendant counterclaim

following reasons :

The arrest of the vessel was occasioned by D the contract of bailment and negligence. D therefore cannot seek to recover any losses arising therefrom. In any event, the court had on 3.4.2023 notice of application to set aside the warrant of arrest in Enclosure 34 dated 27.12.2022. Accordingly, the issue of wrongful arrest is res judicata; and

D has failed to adduce any evidence to prove that it suffered actual loss and damage arising from the matters alleged.

d :

D is not liable for the loss and damage sustained by the cargo, by virtue of the fact that the cargo was held on deck and in accordance with the exclusion clauses in the Bill of Lading.

Alternatively, there was no negligence or breach of the duty of bailment on the part of D, as the ship master acted reasonably, diligently, and in full accordance with good seamanship and professional judgment throughout the voyage.

counterclaim is that P made material non - disclosures and misrepresentations to wrongfully induce the court to issue the warrant of arrest on 3.10.2022 and commence this in rem action, despite not having a valid claim against the vessel.

The reliefs sought by D against P are as follows :

declarations that P does not have a valid claim against the vessel and that the amended writ action in rem and statement of claim filed by P are set aside;

a declaration that the arrest of the vessel by P was wrongful; and

orders that P is liable to pay D for :- (i) loss of charter hire from 4.10.2022 until the v

(ii) loss of business opportunity to charter out the vessel; (iii) damages arising from any breach of the charterparty resulting from the arrest; and (iv) all other consequential losses arising from the wrongful arrest of the vessel. Issues to be tried

The agreed issues to be tried that was filed by the parties contained the following : 1) Whether the Plaintiff correctly invoked Admiralty Jurisdiction in arresting the . 2) Whether the Defendant was in breach of its duties as carrier and bailee. 3) Whether the Cargo was carried as deck cargo. 4) Whether the Defendant was in breach of its duty to exercise rules of good seamanship to conduct proper weather routing, voyage planning and sufficiently securing the Cargo. 5) Whether the weather condition, specifically typhon Muifa, was forecasted and / or predicted and / or reasonably foreseeable? 6) / or damage to the cargo. 7) Whether the protections afforded to the Plaintiff under the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Hague Rules) apply. 8) Whether the cargo, being deck cargo, was carried at the sole risk of the Merchant which is defined in the Bill of Lading to include the shipper, the receiver, the consignor, the consignee, the holder of the Bill of Lading and the owner of the goods. 9) Whether the quantum of security demanded by the Plaintiff is highly excessive and unreasonable. 10) Whether the Plaintiff was unreasonable in not accepting the mode of security offered by the Defendant for the release of the Vessel, namely by way of a Letter of Undertaking (LOU) to be provided by the West of England Insurance Services (Luxembourg) S.A. (WoE) who are the Protection and Indemnity (P&I) insurers for the Vessel. 11) Whether the Plaintiff is entitled to any of the reliefs sought in the Statement of Claim dated 7th November 2022. 12) Whether the Plaintiff failed to make disclosure of material facts and / or had made material misrepresentations to wrongfully induce this Honourable Court to grant the Warrant of Arrest dated 3rd October 2022.

I think this case can be decided principally based on issues (2) and

above. My findings are as follows :

The cargo, being deck cargo, was carried at the sole risk of P. D is not liable for any loss or damage to the cargo by virtue of the exclusion clauses in the Bill of Lading; and

D was not in breach of its duties as carrier and bailee.

Here are my reasons. Deck cargo and perils of the sea

I agree with D that the incident was caused by events that fall within the definition of a peril of the sea. It has long been recognised that cargo carried on deck is exposed to a higher risk of loss. For this reason, Article 1 (c) of the International Convention for the Unification of Certain Rules of Hague Rules as being carried on deck and is so carried. In this Convention the following words are employed with the meanings set out below : c) Goods includes goods, wares, merchandise and articles of every kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried.

The exclusion clauses in respect of deck cargo have since been included in the bills of lading to allocate the risk of loss or damage when cargo is carried on deck and exposed to the perils of the sea. In this regard, the Supreme Court of Canada, in C.C.R. Fishing Ltd. and others v Tomenson Inc. and others (The or fortuitous, in the sense that it is not caused intentionally. And that the peril in the sense that the damage would not have occurred in an accident on land. The expression is therefore properly

One of the most common perils include adverse weather, which encompasses all types of unfavourable conditions encountered by ships during the course of their voyage, ranging from violent storms and heavy gales to strong winds, high waves, and heavy rainstorms.

In the present case, it is not disputed that the vessel, while on voyage from Shanghai to Port Klang, encountered typhoon Muifa (a peril of the sea), causing some of the cargo to be lost overboard and others to sustain damage. Protection afforded under the Hague Rules does not apply

Clause 3 of the reverse side of the Bill of Lading provides that the carriage of the cargo by the vessel is subject to the Hague Rules. For clarity, the carriage of goods by sea in Malaysia is regulated by the Carriage of Goods by Sea Act 1950. Wherein it contains a statutory application of the accepted international conventions relating to the carriage of goods by sea, in this case, the Hague Rules.

Since Article 1 (c) of the Hague Rules expressly excludes deck cargo cargo in the present case. The net effect is that the exclusion of liability stated in the Bill of Lading is unaffected by the protection of the Hague Rules and is accordingly fully effective as a matter of contract. Position of deck cargo in law

In light of the foregoing, deck cargo has long been recognised as being subject to additional risks. The Hague Rules and the Hague - Visby Rules are intended to regulate contracts of carriage by imposing mandatory protective provisions in favour of cargo owners. Even so, the international maritime community declined to extend such protection to deck cargo.

The prevailing position is that shipowners remain free to contract out of, and exclude, liability for deck cargo. Due to the inherent risks associated with deck cargo, shipowners are generally willing to carry cargo on deck only on the basis that their liability is excluded. This position his witness statement. Exclusion clause in the Bill of Lading

The front side of the Bill of Lading states : On which 23 packages on deck at S risk : the Carrier not being responsible

Since the Bill of Lading is for 23 packages of the annealing furnace, the above - mentioned notation essentially indicates that all the cargo represented by the Bill of Lading is deck cargo. In respect of which the carrier, i.e. D, disclaims liability.

Further, to reinforce the exclusion of liability, clause 15 on the reverse a , was included. The said clause 15 is reproduced below : Deck Cargo, Live Animals and Plants. Cargo on deck, plants and live animals are received, handled, carried, and the Carrier shall not be liable

At the trial, DW2 testified that the shipper, Hongkong Chengxin, fixture note for the delivery of the cargo to P. Consequently, the Bill of Lading issued by Shanghai Rongshine, as agent of the sub - charterer, included the aforementioned notation and clause, reflecting the terms agreed in the fixture note.

Accordingly, the contract of carriage, as evidenced by the Bill of Lading, specifically states that the cargo is carried on deck. As the cargo is carried on deck, the Hague Rules do not apply. The exclusion clauses in the Bill of Lading relating to deck cargo are fully applicable to P, without any effect or limitation arising from the Hague Rules.

Pursuant to the Bill of Lading, the cargo was therefore carried at the sole risk of the erchant hich is defined in the Bill of Lading to include the shipper, receiver, consignor, consignee, holder of the Bill of Lading, and owner of the goods. As a result, D is excluded from liability for any damage sustained by the cargo.

In this regard, the relevant authority on point would be the English High Court case of Aprile SPA and other companies v Elin Maritime Ltd [2019] EWHC 1001 . Where the efficacy of a deck cargo exclusion clause was tested. This case itself followed the conclusion that exclusion for deck cargo is enforceable, as established in earlier cases such as the English Court of Appeal case of Joseph Travers & Sons, Ltd v Cooper [1915] 1 K.B. 73; the English High Court cases of The Danah ; and The Imvros [1999] 1 All ER 724 (Comm).

The Elin is the latest example of a consistent line of English authority which recognises and enforces a deck cargo exclusion clause in accordance with its terms. I consider that The Elin is on all fours with the present case.

In The Elin, the vessel Elin encountered heavy seas, resulting in the loss and damage of some cargo carried on deck. The cargo interests brought claims in contract, tort, and bailment, alleging that the loss and and the contract evidenced by the bill of lading. The shipowner denied liability, inter alia, on the ground that liability for the carriage of deck cargo was expressly excluded by the terms of the bill of lading.

The bill of lading in that case provided as follows :

On page 1 :

General Paramount Clause

The Carrier shall in no case be responsible for loss of or damage to the cargo, howsoever arising prior to loading into or after discharge from the Vessel or while the cargo is in the charge of another Carrier, nor in respect of deck cargo or live

On page 2 : note (of which 70 pckgs as per attached list loaded on deck at shipper s and / or consignee s and / or receiver s risk ; the carrier and / or Owners and / or Vessel being not responsible for loss or damage

of [the Bill of Lading], the defendant is not liable for any loss or damage to any cargo carried on deck howsoever arising, including loss or damage caused by unseaworthiness and / or the Defendant be tried as a preliminary issue. The English High Court made the following observations in The Elin:

At paragraph 23 of the judgment : Deck cargo

The carriage of goods on the deck of a ship is inherently risky because the cargo is exposed to the elements and is subject to sea, spray and wind, as well as the additional risk of being washed or falling overboard. For this reason, as stated above, deck cargo has always been treated as being in a category of its own

At paragraph 24 of the judgment :

As a general rule, the deck of a ship is not a proper place for the stowage of cargo and a shipowner is therefore not entitled to stow goods on deck. Deck cargo is also in a special category in relation to claims for general average. Further, goods carried on deck and stated to be so carried in the bill of lading are not within the meaning of the Carriage of Goods by Sea Act 1971, the Hague Rules or the Hague Visby Rules. Perhaps surprisingly, where the bill of lading states that the goods are carried on deck but, in fact, the goods are carried below deck, the Rules apply. Similarly, the Rules apply where the bill of lading is silent as to the location of the goods but, in fact, the goods are carried on

At paragraph 25 of the judgment :

Exceptionally, the shipowner or master will be entitled to stow goods on deck where a usage of trade has sanctioned the practice or where, as in the present case, the master has the shipper s consent to stow the goods on deck. Unauthorised deck stowage is a breach of the contract carriage by the shipowner who will in principle be liable for damage happening to the goods caused by such stowage.

Thereafter, the English High Court decided on the applicability and utility of the deck cargo exclusion clause at paragraph 37 of the judgment as follows :

Viewed as a question of the construction of the terms of the Bill of Lading, free from authority and with the above guidance in mind, in my view, the Owner is correct in its contention that the words of exclusion are effective to exclude liability for both negligence and unseaworthiness. The words of exclusion are clear. The Owner has no responsibility for cargo carried on deck whatever the cause. It is difficult to conceive of wider words of exemption. The exclusion covers any and every cause and there is no justification for excluding either negligence or unseaworthiness as a cause.

In coming to his decision, the English High Court Judge considered how similar deck cargo clauses had been upheld in a long line of authorities. He stated the following at paragraph 69 of the judgment :

It will therefore be apparent that, for the reasons stated above, I see nothing in the authorities to justify departing from what in my view is a point of construction on which both as a matter of plain language and good commercial sense, the Owner is right. As I have shown, the same or similar words of exclusion have been held to be effective to exclude both liability for negligence causing the loss of cargo (Travers v Cooper [1915] 1 K. B. 73 and The Danah [1993] 1 Lloyd's Rep. 351) and liability for unseaworthiness causing the loss of cargo (The Imvros) and the logic of the reasoning in those cases is compelling. Words of difficult to imagine and, over the last 100 years, they have become unseaworthiness

The Elin remains good law regarding the applicability of exclusion clauses to deck cargo. In my estimation, the position in The Elin is the position that this court should adopt. Having regard to section 24 (b) of the Courts of Judicature Act 1964 and section 5 (1) of the Civil Law Act 1950, which permit Malaysian courts to follow English law in admiralty matters. (See the High Court case of Pacific Bunkers Pte Ltd v Owners of The case [2015] 11 MLJ 145).

Returning to the present case, the exclusion clauses in the Bill of Lading are equally clear. They state that cargo on deck is received, handled, carried, kept, and discharged at the m . And that the carrier is not responsible for any loss or damage of the deck cargo, however arising.

I shall not depart from the established standard of international maritime practice regarding deck cargo, which has been recognised as the industry norm for over a century. Accordingly, I find that D is not liable for any loss or damage to the cargo by virtue of the exclusion clauses in the Bill of Lading. P m must therefore fail.

If I am wrong, I further find that D is also not liable for having fulfilled its duty as a bailee.

In a bailment relationship, the burden rests on the bailee to prove that any loss or damage to the goods carried was not caused by their own or See the Privy Council case of Port Swettenham Authority v T.W. Wu and Company (M) Sdn Bhd [1975] 2 MLJ 73). Accordingly, in the present case, the burden lies on D, as the bailee of the cargo, to demonstrate that the loss or damage to the cargo was not due to its own negligence or that of the ship master. The cargo was properly stowed on the vessel

At the trial :

(DW1) provided evidence that the cargo was properly secured on the deck of the vessel. Examination of the stowage plan, the lashing report prepared by the professional lashing company engaged by the sub - charterer, i.e. Shanghai Yaolie Shanghai Yaolei and the measurement survey report by Marine Eagle Services Co. Ltd. confirms that the cargo securing complied with accepted cargo securing manual.

In particular, DW1 confirmed that the wires used to secure the cargo were 18 mm in diameter, which is both stronger and thicker counsel, who did not pursue further questions regarding the securing of the cargo after DW1 confirmed both the method of securing and the measurements of the equipment used.

In his report, DW1 analysed the lashing method used to secure the four heaviest packages of the cargo. He considered both the dimensions of the cargo and the equipment used. DW1 confirmed that the lashing was properly carried out. In his testimony, he explained that it is standard practice for a lashing company to use the same method for all cargo, with no reason to deviate. Since the four heaviest packages were properly lashed, applying the same method means that the remaining cargo would also have been adequately secured.

In his testimony, DW2 confirmed that the sub - charterer hired a professional lashing company, i.e. Shanghai Yaolei, to secure evidence, which demonstrates that the lashing report prepared by Shanghai Yaolei shows that the cargo was properly secured.

Furthermore, DW2 stated that, in addition to hiring Shanghai Yaolei as the professional lashing company to secure the cargo onboard the vessel, the sub - charterer also appointed a loading company at Shanghai port to assist with the cargo loading, and a port captain to oversee and confirm that the cargo was properly lashed.

When pressed independent surveyor to confirm that the cargo was properly lashed before setting sail, both DW1 and DW2 explained that such surveyors are usually appointed by the cargo owner or shipper.

In light of the above, it is evident that D exercised the necessary due diligence to ensure that the cargo was sufficiently secured onboard the vessel before commencing the voyage.

In addition to the pre - sailing procedures undertaken by the sub - charterer, the notice of protest records that when the vessel encountered typhoon Muifa while en route to Jeju island, the ship master ordered the crew to apply additional lashing to further secure the cargo. This fact was

In the premises, I conclude that the cargo was adequately and properly secured onboard the vessel before it set sail. But for the unforeseeable development of typhoon Muifa, the lashing of the cargo would not have failed, resulting in some of the cargo falling into the sea and damage to the remaining cargo. Proper weather routing and prudent storm avoidance via Jeju island

P alleges that the ship master recklessly sailed the vessel into the path of typhoon Muifa. And that staying at the port of Shanghai until the storm had passed would have been a safer and more prudent course.

In this regard, at the trial :

Both DW1 and DW2 gave consistent evidence that the vessel received instructions from the Shanghai port authority to leave the port, as storm avoidance was not permitted there.

DW2 further testified that the sub - charterer, through its agent, Shanghai Rongshine, had applied to the Shanghai port authority for permission for the vessel to remain in port for storm avoidance, but the application was rejected. This is shown in the correspondence between the ship master and the company. Following this, Shanghai Rongshine informed the ship master, copying the sub - charterer, to depart from the port of Shanghai on 13.9.2022 at 1030 hours.

Following the above, on 9.9.2022, the sub - charterer engaged Weathernews for guidance and advice on the best route to avoid typhoon Muifa, which was approaching the port of Shanghai. Both DW1 and DW2 confirmed that Weathernews is a professional weather routing company specialising in voyage planning and weather intelligence services, providing customised routing advice to mitigate navigational and meteorological risks.

Weathernews then proposed to the ship master, with the sub - charterer copied, that the vessel proceed to Jeju island for storm avoidance.

assessment, was a proper and reasonable course of action, given that the typhoon was heading straight towards the port of Shanghai. DW1 further opined that, as the typhoon was moving slowly on 13.9.2022, the vessel would have had sufficient time to manoeuvre safely out of its path based on the prevailing conditions.

In his testimony, DW1 opined that, but for the unforeseeable meteorological development, i.e. the unexpected increase in the speed of typhoon Muifa from 1 - 2 knots at 1100 hours on 13.9.2022 to approximately 8 knots at 1100 hours on 14.9.2022, the incident would not have occurred.

Based on the above, it is evident that the ship m to head to Jeju island for storm avoidance was a calculated and prudent one in light of the information available as at 13.9.2022. ship m decision with the benefit of hindsight, it must be borne in mind that, as at 13.9.2022, the forecast for typhoon Muifa indicated that it was still some distance from the port of Shanghai and would only reach the port after a period of time. Both DW1 and DW2 gave consistent testimony that sudden weather developments or changes are not predictable.

Evidence from both DW1 and DW2 at the trial further confirms that weather routing could be undertaken at any time, and that there is no definitive period during which it must be carried out. DW2 further stated that weather forecasts are more accurate one or two days in advance, and that weather routing services can be conducted at any time.

In light of the above, I accept that the ship master acted reasonably and diligently. And that his actions were consistent with proper seamanship and sound professional judgment.

whether remaining at the port of Shanghai to avoid the storm would have been a better option, both DW1 and DW2 testified that staying in port also carried inherent risks, including the vessel breaking loose from its berth. This could potentially result in collisions with nearby vessels or damage to port infrastructure.

During re - d that the vessel would be safe from the storm if it remained alongside, provided that the wharf was typhoon - rated.

DW2 then gave further evidence that anchoring also carries its own risks. Namely that if the anchor is unable to hold the vessel, it may collide with other vessels nearby.

anchorages near the port of Shanghai where the vessel could have anchored to wait for the storm to pass, DW2 stated firmly that, in the c of China, a vessel cannot anchor at will. Permission must be obtained from the relevant port authority before a vessel may anchor. Furthermore, as the cargo was loaded on board the vessel at the port of Shanghai, the vessel could only apply for anchorage at the port of Shanghai.

I note there were purported alternative anchorages near the port of Shanghai where the vessel could have anchored to wait for the storm to pass, P did not provide any evidence to support the existence of such locations.

By contrast, the evidence from DW1 and DW2 consistently indicated that remaining at Shanghai port to wait for the storm carried its own risks. And that the best course of action, based on the information available as at 13.9.2022, was for the v and head to Jeju island.

Based on the above, I accept that the ship master exhibited good seamanship in dealing with the incoming typhoon Muifa. He acted diligently and reasonably, weighing all factors based on the information available as at 13.9.2022. And, drawing on his professional experience, decided to head to Jeju island to avoid the storm. This was also confirmed by DW1 in his evidence, following his analysis of the data available to the ship master as at 13.9.2022. The vessel was seaworthy

Based on the above, I also accept that the vessel was seaworthy for the voyage from the port of Shanghai to Port Klang.

The incident resulted from an unforeseeable and sudden development of the typhoon, which was beyond the control of the ship master, the sub - charterer, or any other party, as confirmed by DW1. This occurred even though the ship master and the sub - charterer had taken all necessary precautions that a prudent ship master or charterer would have taken.

Accordingly, I conclude that D did not breach any duty, including any duty of bailment, and was not negligent in carrying out the voyage. Absence of the ship master and the chief officer at the trial

P argues that the absence of the ship master and the chief officer at the trial resulted in D presenting no evidence for the court to decide on its pleaded defence. Further, P invited me to draw an adverse inference under section 114 (g) of the Evidence Act 1950. This was on the argument that their failure to attend court and testify gives rise to the inference that, had they been called, their evidence on the issues in dispute would have been unfavourable to D.

Notwithstanding the absence of the ship master and the chief officer at the trial, it is my finding that D has proved its defence through the testimony of DW1 and DW2 and the documentary evidence.

I decline to draw any adverse inference as this is not a situation where material evidence was deliberately suppressed or withheld. In fact, D had filed witness statements for both the ship master and the chief officer. On the first day of the trial on 15. two witnesses were not able to be present in court during the trial dates scheduled on that week from 15 to 18 December 2025. He indicated that those two witnesses would be able to attend court and testify in the following year and wanted to request a postponement. However, I refused to adjourn the trial or have it part - heard, when it can be concluded within the allocated four trial days.

Actually, D had written to the court on 2.12.2025 (two weeks before the trial) to request permission for those two witnesses to testify via remote communication technology. The reason proffered was that the said witnesses would be sailing in the open sea and working on board the ship during the trial dates, and therefore unable to attend physically in court.

Via its reply dated 3.12.2025, P objected to the request on the grounds that it would be prejudicial to them. P pointed out that internet connection might be unstable from the open sea, and could disrupt the smooth conduct of the trial. P also raised the risk of coaching of witness as those two witness would be unsupervised whilst on the ship.

I was of the view that it would not be in the interest of justice to allow remote testimony in this matter. The quality of the technology on board the ship and the internet connection speed in the open sea is dubious. Proceedings conducted via remote communication technology might not proceed smoothly in this case. There would be no control over the two witnesses in question at their remote location. request. It seems to me that D had failed to make proper arrangements to secure the attendance of its witnesses, notwithstanding that the trial dates had been fixed more than one year in advance. Expert evidence

Both sides called their respective expert witness. PW4 in the case of P, and DW1 in the case of D. I will explain why I did not prefer the expert evidence of PW4.

I agree with DW1 observation in his witness statement that the expert report of PW4 largely consists of general obligations, guidelines, and examples. But it regarding the actions of the ship master or D in relation to the incident. Consequently, the report does not reach any reasoned finding that D breached any duty or acted negligently.

This was conceded by PW4 during cross - examination by the counsel for D : Yes. Now, can you let me know in this report, where you have discussed Yes. Correct. asking you to find in this report where you have supported your conclusion by examining the actions of the master. The actions of the master ... The report, Sir. In the report? referring you to the report. Please refer to where in this report you have Alright. If you go to the Conclusions 12. Conclusions 12? Page 43. Which conclusions. serious incident involving cargo damage onboard the ship during typhoon, raises concerns about the master s decision - making and dangerous semicircle of the typhoon. out of Shanghai right into the middle of the typhoon to the dangerous semi - circle. Now, Capt Burns, these are conclusions. Yes. A conclusion, if I may say, is usually reached after you have examined the conduct in question. Yes. Where have you examined the conduct in question in this report? Let me see. I see. So, Capt Burns, what you have done is, you have stated the general principles and you reached a conclusion? Yes. Without in any, without in this report examining the conduct of the master? In writing the conclusions, I examined the conduct of the master. But it is not in this report? Correct. Is there anywhere in this report where you discussed how the master has inadequately monitored the weather or failed to follow established typhoon avoidance guidance in this report? No.

Section 51 of the Evidence Act 1950 states - of any living person is relevant, the grounds on which his opinion is based Accordingly, when PW4 forms his opinion that the ship master was negligent and that D had breached its duty, he ought to have stated in his report the grounds on which his opinion is based. He did not.

Furthermore, PW4 also admitted during cross - examination that he prepared his report based solely on the documents in Bundle A1, i.e. the Common Bundle of Documents in Enclosure 70. He had not considered the documents in Bundles A2 to A4, which consist of, among others :

the ship master and the chief o certificate of competence;

the fixture note entered between Hongkong Chengxin and the sub - charterer;

the certificate of marine products for the equipment used to lash the cargo;

the voyage audit report and the correspondence from Weathernews to the ship master, copying the sub - charterer; and

weather forecast.

The following transpired during the cross - examination of PW4 : Now, Capt Burns, can I just ask you to look at Enclosure 70? Enclosure? 7-0. 7-0? A1? Yes, I have it in front of me. When you mentioned the common bundle of documents, is this what you are referring? This is perhaps some of the documents I was referring to. Yes, I have seen this. Yes, I did refer to this document. Yes. So, when you mentioned common of documents in 1.4.1 referring to this bundle? . If you look at the cover, Sir. Yes, I see it. Yes. That is not stated in your report? 103, yes. Yes. And that is also not stated? Yes. Yes.

The dates of the aforementioned Common Bundle of Documents, which is dated supports assertion that PW4 did not consider the documents in Bundles A2 to A4 in his report. Enclosure 88 is dated 24.11.2025. Whilst :- (i) Bundle A2 (Enclosure 83) is dated 25.11.2025; (ii) Bundle A3 (Enclosure 102) is dated 9.12.2025; and (iii) Bundle A4 (Enclosure 103) is also dated 9.12.2025. It is apparent that 4.11.2025, the Common Bundle of Documents in Bundles A2 to A4 had not been filed yet. They were only filed subsequently on 25.11.2025 and 9.12.2025.

On top of that, instructions (presumably documents) had been given to PW4 earlier in October 2025 . states that he act on instructions received on October 2025 . At that point in time, only Bundle A1 (Enclosure 70) had been filed, i.e. on 16.11.2023. It can be inferred that the only Common Bundle of Document existing at that material time.

77.

Analysis and Opinions and unhelpful.

(a)

11.1 Duties Related to Cargo Preparation and Loading all he says is this :

11.1.1 particularly considering the strong possibility of encountering a typhoon and its associated severe weather on deck is a significant concern. Inadequate packaging would have compromised the integrity of the cargo during the voyage. Improper stowage location or inadequate packaging could have resulted in significant damage and loss of the cargo during the voyage.

11.1.2 The following documents will reveal whether the cargo was properly secured on board : a. Cargo Stowage Plan : This document would reveal the designated location (deck or hold) for the cargo in question. b. Cargo Declarations : These declarations typically detail the packaging type and specifications, allowing assessment of its suitability for withstanding harsh weather conditions. c. Weather Reports received by the ship : Reviewing weather data for the voyage, particularly around the time of the typhoon, would help establish the actual weather conditions encountered.

PW4 identified the documents which can reveal whether the cargo was properly secured on board. But he does not explain whether he sighted the said documents, and whether they in fact reveal whether or not the cargo was properly secured on board.

(c)

11.2 Standards for Loading and Securing Deck Cargo all he says is this :

11.2.1 The Typhoon MUIFA in September 2022 has identified significant concerns regarding the Master's cargo securing practices.

11.2.2 The questions which can be raised as to whether the master and crew had undertaken the proper due diligence to secure the cargo include : a. The type of lashings used : Were they appropriate for the specific cargo weight and dimensions? b. The quantity of lashings employed : Were there a sufficient number to effectively restrain the cargo during adverse weather? c. The attachment points chosen : Were the lashings secured to designated strongpoints on the deck, or were weaker areas, such as bulwarks or frames, used instead?

11.2.3 Industry best practices dictate that cargo securing utilises lashings specifically chosen based on the anticipated weather conditions and the weight of the cargo being secured. Attachment points are also crucial, as strongpoints on the deck are specifically designed to withstand the forces exerted by properly secured cargo.

11.2.4 That there was shifted cargo and subsequent losses overboard strongly suggests that the securing measures employed fell short of these established standards. Standard lashings, as outlined in industry best practices, should have been more than adequate to withstand the 4 - metre seas and the associated motion encountered by the vessel. There is lack of information surrounding the Master's practices and the negative outcome raise serious concerns about potential deviations from recommended cargo securing procedures.

questions which can be raised as to whether the master and crew had undertaken the proper due diligence to secure the cargo provide answers or findings on those questions. Instead he recognised information surrounding the master s practices

(e)

11.3 Importance of Weather Routing and Passage Planning We lack details on the master s actions in response to these weather updates.

His 12. Conclusions , rather than provide opinion or findings :

12.1.7 to establish if the master followed best practices for weather monitoring and typhoon avoidance.

12.1.8 Did he employed appropriate cargo securing procedures to safeguard the cargo?

12.1.9 Did he prioritise crew safety when making decisions during the typhoon encounter?

12.1.10 Addressing these questions will be crucial in understanding the cause of the incident.

required will be crucial in understanding the cause of the incident words, he is saying that further investigation is needed. Unless and until further investigation is carried out and the questions posed are answered, the cause of the incident remains uncertain. It appears he did not have the opportunity to carry out further investigation due to his last minute engagement.

In the circumstances, I regard to be unreliable. It contains no independent analysis that ought to have been undertaken before arriving at any conclusion. Alternatively, PW4 had not considered all the material evidence before reaching his conclusion in his report. As such, his report cannot support a finding that D breached any duty or acted negligently.

desktop report the High Court case of JA Solar Malaysia Sdn Bhd v Dynacraft Industries Sdn Bhd [2025] MLJU 2749). It is largely theoretical and provides no meaningful assistance to the court in resolving the dispute at hand. Accordingly, it carries little probative value in assessing whether the ship m actions were consistent with proper seamanship and sound professional judgment.

Perhaps the reason for the shortcomings in PW4 port is because it was done in haste. PW4 was commissioned at a very late stage. Namely three weeks before the trial (which commenced on 15.12.2025). It would appear that as at early November 2025, P was not ready for trial given the absence of its expert report.

I say so because P wrote to the court on 17.11.2025 requesting a separate (later) trial date for expert testimony : We respectfully seek a pre - trial case management date before the trial to seek the :

Directions to file the factual Witness Statements of both parties;

Separate Trial dates for Expert Witnesses to testify;

Directions to file the Expert Reports of both parties; and

Directions as to the Hot Tubbing Process.

Thus, as at 17.11.2025 (i.e. less than a month before the trial), expert reports had not been filed. Nor witness statements for that matter. Notwithstanding that directions for their filing had already been issued way back in December 2023. And three previous sets of trial dates (on 11 - 15 March 2024, on 4 - 8 November 2024 and on 17 - 21 March 2025 respectively) had been vacated for one reason or another.

The case management on 31.10.2023 recorded - Factual witness statements to be filed and exchanged by 15.12.2023. Next CM by zoom at 9:00 am on 15.12.2023.

The case management on 15.12.2023 recorded - Plaintiff to file witnesses statements in 1 week s time. Case is ready for Full Trial on 11 - 15 March 2024.

On 18.11.2025, I replied to the parties as follows : ) The witness statements / expert reports should have been filed back in 2023, as per the CM on [1]5.12.2023. Please file the witness statements / expert reports immediately, and in any event no later than 1 week from today (by 25.11.2025). 2) There will not be separate trial dates for the experts. They will testify during the trial commencing on 15.12.2025. 3) Parties may arrange for discussion between expert witness & file joint statement under o.40A r.5 ROC, if they wish. This must not derail the trial.

It is my finding without basis.

On 27.12.2022, D had made an application to set aside the writ action in rem, the statement of claim and the warrant of arrest and an application to release the vessel on provision of security via Enclosure 34. This application was dismissed by the court on 3.4.2023. D did not appeal against the said decision. Accordingly, the issue of wrongful arrest is res judicata. D revisited by the court again.

D submits that the decision of the court on 3.4.2023 dismissing the setting aside application was not appealable by virtue of the amendment to section 68 (1) of the Courts of Judicature Act 1964. I am cognizant that o appeal shall be brought to the Court of Appeal - (f) where a High Court dismissed any application to strike out any writ or pleading . However, I do not see that the dismissal of an application to set aside a warrant of arrest falls within the ambit of section 68 (1) of the Courts of Judicature Act 1964 as being non - appealable.

In Enclosure 34, in addition to applying to set aside the writ action in rem and the statement of claim, D had prayed for the following : ) That the Warrant of Arrest dated 3rd October 2022 be discharged and / or set aside; 4) That the Plaintiff do pay to the Defendant damages for the wrongful arrest and detention of the ship or vessel 9141742) of the Port of assessed by the Honourable Court unless agreed otherwise; 5) Alternatively, the Plaintiff do pay to the Defendant all wasted and unnecessary costs and expenses incurred in the wrongful arrest and detention of the Vessel, with such costs and expenses to be assessed by the Honourable Court unless agreed otherwise; 6) That the Vessel be immediately released from arrest and placed under the possession of the Defendant on the provision of security to the Plaintiff for its in rem claim in this action by way of a Letter of Undertaking issued by West of England Insurance Services (Luxembourg) S.A. who are the Protection and Indemnity (P&I) insurers for the Vessel in the sum of USD 1,240,536.55 + RM on the terms as set out in the Proposed Letter of Undertaking annexed to this Application as Appendix moderate security; 7) Subject to the Security sum being subsequently reduced by the Order of Court, the Security be declared sufficient and valid alternative security to secure the release of the Vessel from arrest;

Further, D counterclaimed for the following :- (i) loss of charter hire, to be ascertained; (ii) loss of business opportunity to charter out the vessel from 4.10.2022 until the date of release of the vessel; (iii) damages flowing from the breach of the charterparty, to be ascertained; and (iv) other consequential losses arising from the wrongful arrest of the vessel.

However, D is not entitled to claim any of the losses above, as it has failed to adduce any evidence to prove that it suffered actual loss or damage arising from the matters alleged. In the absence of proof of loss, substantiated.

In written submissions, D stated that it will, at the assessment of damages stage, adduce the necessary evidence for the quantification of such losses. That is an afterthought. At the commencement of the trial, I had reminded the this trial proceeds on both liability and quantum since it is not bifurcated

has failed to prove that the arrest was brought with malice or such gross negligence that implies malice. I am 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 award damages for wrongful arrest of a vessel. (See the Privy Council case of The Evangelismos [1858] 12 Moo. P.C. 352; the English High Court case of The Kommunar (No. 3) 22).

For the reasons above, I dismissed both counterclaim. After hearing the parties on costs, I proposal and awarded costs of RM 60,000 to D. Dated 10 February 2026 Quay Chew Soon Judge High Court of Kuala Lumpur (Commercial Division NCC 2 & Admiralty 9) Counsels Philip Teoh, Lim Teng Li, Evelyn Ng Can Fei and Nik Aisha Tasnim binti Nik Syahril (Messrs. Azmi & Associates) for the Plaintiff Oon Thian Seng, Tan Hui Ling and Ng May (Messrs. T S Oon & Partners) for the Defendant Case reference 1.

Aprile SPA and other companies v Elin Maritime Ltd [2019] EWHC 1001 3. Joseph Travers & Sons, Ltd v Cooper [1915] 1 K.B.

The Danah The Imvros [1999] 1 All ER 724 (Comm)

[2015] 11 MLJ 145 6. Port Swettenham Authority v T.W. Wu and Company (M) Sdn Bhd [1975] 2 MLJ 73 7. JA Solar Malaysia Sdn Bhd v Dynacraft Industries Sdn Bhd [2025] MLJU 2749 8. The Evangelismos [1858] 12 Moo. P.C.

The Kommunar (No. 3) Legislation reference 1. Section 101, 104 and 105 of the Contracts Act 1950 2. Carriage of Goods by Sea Act 1950 3. Section 24 (b) of the Courts of Judicature Act 1964 4. Section 5 (1) of the Civil Law Act 1950 5. Sections 51 and 114 (g) of the Evidence Act 1950 6. Article 1 (c) of the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (The Hague Rules)

The Hague - Visby Rules