Law updates - Shipping & Maritime (Malaysian law unless otheriwse stated)

*Abbreviations 
HC = High Court  
COA = Court of Appeal 
FC = Federal Court
 
APV Hill & Mills (M) Sdn Bhd v AQ-Pacific Wide Sdn Bhd & Anor [COA] 

On the evidence there were no merits in the plaintiff's submission. The defendant, had not been informed of the alternative arrangement of the plaintiff to use the feeder vessel "Seng Leong" to transport the equipment from Port Klang to Singapore where it was to be loaded onto the "Lady Jane". In the circumstances, the defendant cannot be clothed with the knowledge of the transhipment so as to stop it from objecting the claim of the plaintiff. As far as the defendant is concerned, the journey of the equipment was to originate from Singapore and not any other port. It was the plaintiff who had rejected the proposals put forward by the third party so as to comply with the terms of the LC of the defendant with JOWFE. The plaintiff's transporting of the equipment from Port Klang via a feeder vessel amounted to a transhipment as defined in Houlder Brothers & Co v The Merchants Marine Insurance Co Ltd (1886) 17 QBD 354. By doing so, the plaintiff had gone against, and had acted contrary to the stipulation in the LC prohibiting transhipment of the equipment. There was no evidence to suggest collusion between the plaintiff and the defendant that there was to be a transhipment of the equipment from Malaysia to Libya. The plaintiff had in fact acted against the advice of the third party and without knowledge of the defendant. The falsity if at all, as to the description in the bill of lading was not created by the defendant. In the circumstances, the High Court had not erred in its decision to dismiss the plaintiff's claim and to allow the defendant's counterclaim. It was not the third party who had insisted that a feeder vessel be used instead, in defiance of the prohibition on transhipment. It was the only alternative for the equipment to be transported to Singapore in view of the plaintiff's refusal to accept the proposal for the same to be transported by road. The bill of lading which was sent to the defendant by the third party and which did not represent the true state of affairs as on the face of it, there appeared to be no transhipment of the equipment, was sent upon the instructions of the plaintiff. The misdeeds cannot be attributed to the third party who had merely carried out the instructions of the plaintiff. In the circumstances, there was no error committed by the High Court in its finding of non-liability on the part of the third party.  

Pemilik dan Sesiapa Berkenaan dengan Kapal atau Vesel "Siti Ayu" dan "Melati Jaya" v Sarawak Oil Palm Sdn Bhd & Anor [COA] 

The cause of action in the counterclaim principally, was for the wrongful arrest and detention of the tugboats, but subsequently, and by way of amendments, claims for damages in respect of the plaintiffs' failure to comply with the order of court for it to insure and maintain the tugboats were added. None of the said causes of action fall within any of the provisions set out in the relevant section of the Supreme Court Act 1981 (United Kingdom) or, in any other section thereof. These claims, in the circumstances, were certainly outside the ambit of the admiralty jurisdiction. On the facts, the plaintiffs' claim was within the admiralty jurisdiction, whereas the defendants' counterclaim falls under the normal civil jurisdiction. Notwithstanding there being a difference in jurisdiction, on the authorities, the same principle governing the determination of a counterclaim would apply. Applying the rationale in The Cheapside [1904] P 339, and though the plaintiffs' claim and the defendants' counterclaim fall under two different jurisdictions, the trial judge should have for sake of convenience, blended the two jurisdictions and disposed off the counterclaim as a non-admiralty proceeding in an action that had originated from an admiralty proceeding. Bearing in mind that the counterclaim involves the finding of liability and quantum, it would be appropriate in the circumstances for the court of first instance to decide on such matters.

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