Shearn Delamore & Co.
  December 9, 2020 - Malaysia

High Court Dismisses Application for Relief in Maritime Collision Claim

In a recent Malaya High Court decision, the owner of the vessel My Ferry 2 made a claimed based on a maritime lien pursuant to Section 21(3) of the UK Supreme Court Act 1981, which applies in Malaysia pursuant to Section 24(b) of the Courts of Judicature Act 1964.(1)

The plaintiff alleged that the first defendant (tug KKD000132-T which had towed the second defendant's dumb barge Wantas 17) had collided into the plaintiff's vessel, the My Ferry 2. The plaintiff arrested the second defendant's barge, Wantas 17.

The second defendant filed an application for the following relief:

  • a writ in rem (WA-27NCC-52-12/2018) and all subsequent pleadings against the owners of Wantas 17 be struck out pursuant to Order 18, Rule 19 (1) (a), (b) and (d) of the Rules of Court 2012;
  • the warrant of arrest against it be set aside;
  • the plaintiff should immediately return to the second defendant the letter of undertaking issued by the second defendant's insurer (MSIG Insurance (Malaysia) Bhd);
  • the plaintiff should pay damages to be assessed and costs to be taxed for the wrongful arrest of the second defendant's barge; and
  • the plaintiff should pay the costs of the action and application to the second defendant.

The second defendant's grounds for its application were that:

  • its barge had not been towed by the tug KKD000132-T as the plaintiff alleged, but instead had been towed by the tug KKD00059-T, which had been involved in the collision with the plaintiff's tug My Ferry 2. The second defendant relied on the Marine Department's Report of a Shipping Casualty. The report amended barge KKD000132-T to barge KKD00059-T. Hence, there was a dispute as to the identity of the tug which had towed Wantas 17;
  • it would be unjust and unreasonable to impose any liability on Wantas 17, as it asserted no control over tug KKD00059-T and could manoeuvre only by being towed by a tug;
  • the second defendant owed no duty of care to the plaintiff. The damage, if any, caused to the plaintiff's vessel had not been reasonably foreseeable by the second defendant; and
  • any wrongdoing was attributable solely to the tug towing the second defendant's vessel – namely, tug KKD00059-T – and not the first defendant's tug KKD000132-T, which according to the report had not been involved in the collision.

The plaintiff contended that:

  • the arrest of Wantas 17 had been based on a claim for a maritime lien pursuant to a damage maritime lien;
  • it maintained a claim pursuant to a damage maritime lien:
  • the damage must have been the result of a wrongful or negligent act or manoeuvre by persons engaged in the navigation or management of the ship; and
  • the ship must have been the actual instrument by which the damage was done.

Decision

Having considered the evidence and submissions, the court arrived at the following findings:

  • The damage must have been the result of a wrongful or negligent act or manoeuvre by persons engaged in the navigation or management of the ship and the ship must have been the actual instrument by which the damage was done.
  • Although there were conflicting facts as to the identity of the vessel that had towed Wantas 17, the undisputed fact was that Wantas 17 had collided into and caused damage to My Ferry 2.
  • The issue of whether the persons charged with the navigation or management of Wantas 17 had acted wrongfully or negligently was a question of fact which should be determined by vivo voce evidence at trial.
  • The conflicting facts with respect to the identity of the tug which towed Wantas 17 should not be a basis to allow the second defendant's application.
  • A tug or even a tow with control over the navigation was not necessarily the decisive factor of liability in respect of the collision. Each case should be determined according to its own circumstances. The determination of which party was liable for the accident was a question of fact to be determined at trial.

The court dismissed the second defendant's application with costs.

For further information on this topic please contact Rajasingam Gothandapani at Shearn Delamore & Co by telephone (+60 3 2027 2911) or email ([email protected]). The Shearn Delamore & Co website can be accessed at www.shearndelamore.com.

Endnotes

(1) Owners of My Ferry 2 v owners or demise charterers of KKD000132-T [2020] MLJU 298 (Malaya High Court at Kuala Lumpur, Khadijah Idris J).