IMSML Website Article 39/2025: Tom Eastwind 365 Sdn Bhd v Pemunya-Pemunya Kampala Atau Vesel Icon Sophia [2024] MLJU 2834 - Anchor Deployment Operation and Res Ipsa Loquitur at Dulang B Oilfield

The operation took place about 170 km north-east of Trengganu, Malaysia. It involved the following Vessels:

[1] The D’s Anchor Handling Tug Supply (AHTS), the ICON SOPHIA;

[2] The P’s stationary accommodation work barge (AWB), the TOM EASTWIND.

The ICON SOPHIA had made contact with the port side of the TOM EASTWIND, whilst she was maneuvering to pull away after picking up the last anchor socket for the operation. The contact resulted in damage to the TOM EASTWIND’s shell plates.

Mr Justice Ong Chee Kwan explained that the issue of res ipsa loquitur at the trial involved shifting evidential burden of proof between the parties. His Lordship’ judgment also deals with the ‘negative condition’ that must be satisfied for the application of the doctrine, ie that there must be no evidence as to why or how the accident took place, see Paragraph [4].

What Happened During the Anchor Deployment Operation?

The Anchor Deployment Operation was conducted by the Marine Controller, under the employ of the P who was stationed on the barge, see Paragraph [10]. The anchors were to be deployed in a particular sequence and this was documented on 5 June 2020, see Paragraph [11]. However, on the first day of operations, the anchor pattern was changed due to a passing squall. One anchor (S4) was deployed in a temporary position, and only later laid at its correct designated position, see Paragraph [12].

On the second day of operations, on 19 June 2020, there was another change in the anchor position. This time P2 was the final anchor deployed, instead of S2. The barge was instructed to pick up the P2 anchor socket, see Paragraph [13]. This required the tug to come in close to the barge to ‘snatch’ the anchor before the tug could pull away to deploy the anchor at its pre-determined position, see Paragraph [14]. The tug was supposed to perform a perpendicular approach in order to achieve this. However, it was not possible to do so in order to snatch the anchor socket because of a a prevailing current of 1.5 knots to 2.0 knots at 020 degree (T). Ideally, if the correct approach could be performed, the Vessel’s twin propellers could maintain the distances from the barge and the Tug’s bow thrusters maintaining the heading, see Paragraph [15].

However, the bow of the tug swung to the port side to allow the propellers to compensate for the current. Hence, retrieval of the P2 anchor socket took approximately 25 minutes. All this while, the bow of the tug continued to swing to the port, which resulted in the tug eventually coming alongside the Barge. The Tug had difficulties moving away from the Barge because of the combined maneuvering restriction of the P2 anchor wire over the stern of the Tug, combined with the 2 knot current still pushing the Tug against the Barge, see Paragraph [17].

The Tug finally managed to pull away from the Barge at around 12.45 pm. She did so whilst applying maximum engines and bow thruster power. Unfortunately, in the process, the Tug’s bow swung to starboard and her aft port quarter came into contact with the Barge’s port bow side. The collision cause damage and indentation to the shell plating, see Paragraph [18]. On of the Tug’s tyre fenders also became detached  and was lost at sea. As a result, the pad eyes which secured the tyre fender to the Tug’s hull, came into contact with the side shell plating of the barge. This resulted in scratching of the paintwork and indentations to the plating, see Paragraph [19].

What was the P’s case in Negligence against the D?

To put it simply, the P argued that the D owed a duty to care in navigation of the Tug in order to avoid a collision with the Barge. It was a breach of this duty of care that cased the collision and therefore damage to the Barge, see Paragraph [21]. In particular, the D failed to take the necessary and reasonable precautions to ensure that the Tug would not collide with the Barge, when she pulled away from a stationary Barge, see Paragraph [22]. The P relied on the doctrine of res ipsa loquitur as formulated in the Sabah Shell Petroleum Ltd and Anor v The Owners of and or any persons interested in the ship or vessel, the ‘Borcos Takdir’ [2012] 5 MLJ 515 that:

[1] The occurrence would not have happened without negligcene;

[2] The thing causing the damage was under the sole management and control of the D;

[3] There was no evidence as to why or how the occurrence took place.

What was the D’s Response to the Allegations of Negligence?

The D’s case was largely based on the denial of nay negligence. The D also alleged that res ipsa loquitur was does not apply in this case, see Paragraph [26]-[27]. The D’s expert witness (DW1) took the view that the event was an accident which was caused by the prevailing current at a direction 020 degrees (T) acting on the Tug, see Paragraph [27]. Dw1 testified that the event was caused by a fortuity, and the master of the Tug would not have foreseen that happening. The Master was putting on full power on the engines as evidenced from the black smoke coming out of the Tug;s funnel, see Paragraph [28]. The D argued that as the P did not adduced any expert evidence to rebut DW1’s testimony, the Court was not entitled to reject DW1’s testimony and to substitute its own opinion on the matter, see Paragraph [29].

Was Res Ipsa Loquitur Applicable?

When a P alleges negligence on the part of the D, the P has the legal burden of proving that allegation. However, where the doctrine of res ipsa loquitur is applicable it allows the P to raise an inference of negligence that was caused by the D which was prima facie the proximate cause of the injury, thus establishing a case against the D without actual proof, see Paragraph [32].

Technically, res ipsa loquitur does not theoretically shift the legal burden of proof from the P to the D. The doctrine merely makes it possible for the Court to draw an inference of negligence from the facts. The legal burden of proof still remains with the P to prove negligence on a balance of probabilities, see Paragraph [133]. It is important to bear in mind that the doctrine is a rule of evidence, ie ‘the thing speaks for itself’, see Paragraph [34]. Even where neither the P, nor the D adduced any evidence, under the doctrine, the court can make an inference that an accident that occurs is evidence of negligence, see Byrne v Bradley (1863) 2 H & C 722. The Court can make this inference is there is reasonable evidence of negligence, see Scott v London and St Katherine Docks (1865) 3 H. & C.596 per Earle CJ.

Mr Justice Ong Chee Kwan dealt with the D’s contention that the negative condition necessary for res ipsa loquitur was absent from the facts of the case in dispute. The D argued there was evidence from its expert witness (DW1) and the Master of the Tug (DW3) as to the cause of the accident, see Paragraph [38]. His Lordship started by re-iterating that the doctrine gives rise to an ‘inference’ not a ‘presumption’ of negligence, see Paragraph [40]. Hence, his Lordship held that If no evidence is preferred by the D at the end of the P’s case, the Court is not bound to find that liability has been made out. Based on the overall evidence, the Court may still find that the P has not discharged its burden of proof on a balance of probabilities, see Paragraph [40]. His Lordship stressed that an assumption of the existence negligence was very different from an inference under the doctrine where it was merely possible for the Court to find the existence of negligence, see Paragraph [40].

Mr Justice Ong Chee Kwan held that the test is not whether a particular injury rarely occurs, but rather that when it occurs, it is usually because of negligence. In other words, whilst an an accident could still happens even when there is no negligence or want of care, there is a higher probability that when it did happen, it is due to negligence or the lack of proper care, see Paragraph [42]. Under the doctrine, an accident would only occur due to negligence ‘in the ordinary course of things’, based on the judgment of one’s common sense and experience, ie whether an ordinary man would conclude that the accident would ordinarily only occur when there is negligence, see Paragraph [45].

So what happens when the events fall outside the scope of ordinary common sense and experience, eg where an ordinary person would neither have knowledge nor the experience to conclude that the injury sustained would not have otherwise arisen but for the negligence on the part of the tortfeasor?

Mr Justice Ong Chee Kwan explained that expert evidence may inform the Kurt whether ‘in the ordinary course of things’, the injury sustained by the P could only occur if not proper care was taken by the tortfeasor. His Lordship held that this was quire different from an expert being called with the view to prove the actual cause of the accident, see Paragraph [47].

So What Should the P do at the Trial?

The P must lead and adduce the facts relating to the circumstances of the accident. The P has to show what happened and the fact there was in jury or damage. In order to achieve this, it may be necessary for the P to procure expert evidence to inform the Court that the accident, in the ordinary course of things, would only occur due to lack of proper care on the part of the D, see Paragraph [48].

The P must also show that the thing causing damage to the P, was under the sole management and control of the D (or someone whom the D was responsible for, or the D had a right to control), see Paragraph [49]. It is precisely because the D had sole control and management of the thing that damaged the P, meant that the D (not the P) is in a position to adduce direct evidence bearing on the issue of negligence. It is this that the doctrine of res ipsa loquitur permits a finding of negligence by the D based on the available circumstantial evidence, see Paragraph [50].

What if there is No Disparity of Information?

This occurs where the P has access to direct evidence and is in a position to adduce evidence to prove a specific act of negligence to establish a prima facie case of negligence. In such a circumstance, the P ought not to be permitted to invoke res ipsa loquitur. Otherwise, this would give the P a procedural advantage of an inference to which the P is not equitably entitled, see Paragraph [51].

What Happens if the P is Able to Satisfy the 3 Conditions Laid Down in The ‘Borcos Takdir’ by Justice Nallini Pathmanathan (as she then was, now FCJ)?

First, the P’s case cannot be struck out on a submission of no case to answer by the D. Second, the P need not factually establish a case of negligence. Third, under the doctrine of rest ipsa loquitur, an inference of negligence can be made. Fourth, Negligence is the proximate cause of the accident has been raised or deduced from the circumstances of the case, see Paragraph [52].

What Happens when the Evidential Burden is Shifted to the D?

First, assuming that the D is not arguing that ‘no case to answer’ at the end of the P’s case, the D has the burden of rebutting the inference of negligence. Second, refute the suggestion that all the elements of res ipsa loquitur are satisfied in the context of the case in dispute. Third, the D can try to establish that it had indeed exercised due and proper care on the facts of the case, ie arguing that there is a non-negligence cause for the accident. Fourth, the D can show that the occurrence of the event is more probable than the inference of negligence established by the P, see Paragraph [53].

In a nutshell, Mr Justice Ong Chee Kwan summarised that the doctrine of res ipsa loquitur is applicable at the end of the D’s case. At this stage, his Lordship stressed that must be evidence before the Court as to how and why the accident occurred, that is not due to any negligence on the part of the D’s case. If the D fails to do this, the inference of negligence has not been displaced, ie the doctrine of res ipsa loquitur has not been precluded, see Paragraph [54].

How Should Res Ipsa Loquitur be Looked at in the Context of the Anchor Deployment Operation?

The agreed facts are as follows, see Paragraph [55] to :

[1] The operation was carried out by the Master of the Tug (DW3);

[2] On 19 June 2020, DW3 was manoeuvring the Tug towards the Barge to pick up the P2 anchor socket;

[3] The manoeuvre was to lay the anchor P2 at its pre-planned position, ie the final anchor to be laid;

[4] The Tug inflicted damage to the Barge during the manoeuvre as it failed to snatch the P2 anchor and the strong current pushed the Tug, which ended up alongside the Barge.

At the time of the accident, the D had exclusive control of the Tug, which cased the damage. The D was better placed to know the facts. By permitting the P to prevail based on circumstantial evidence would compel the D to divulge the information that is exclusively with the D’s possession, see Paragraph [72]. This enabled the D to procure testimonies on the cause of the accident. The P had the benefit of the procedural device of res ipsa loquitur and the testimonies of the Master of the Tug (DW3) and the expert witness (DW1) cannot be taken to negate the negative condition of negligence, but was instead adduced by D to negate it rebut the inference of negligence which the P had established at the end of its case, see Paragraph [73]. The burden was therefore on the D to displace the inference of negligence by either, see Paragraph [75]:

[1] Due and proper care was taken during the pulling away manoeuvre; OR …

[2] A possible non-negligence cause for the accident that has a higher probability than the circumstantial evidence adduced by the P.

Was there Rebuttal by the D of the Inference of Negligence?

Mr Justice Ong Chee Kwan held that it will not suffice for the D to show there was a neutral event, ie that the Accident is consistent with no negligence, as well as with negligence. According to his Lordship, the D has to show that the competitor cause proffered must be more probable than the inference raised by the P earlier under the doctrine of res ipsa loquitur (for eg under Grace Engineering Pte Ltd v Te Deum Engineering Pte Ltd [2017] SGCA 65), see Paragraph [77]. The D therefore also had the option to show that the accident was cannot attract liability on the part of the D, ie that the Master of the Tug (DW3) had exercised all due and proper care, see paragraph [78]. In this regard, the D pointed to the change in the Anchor Pattern deployment sequence, and the prevailing current condition, see Paragraph [79]. 

The D’s expert witness (DW1) also preferred an alternative cause of the accident, ie that had anchor S2 been made the final anchor (instead of the anchor P2 as originally planned), the heading of the barge could have been altered to minimise the effect of the prevailing current condition, thus making it relatively easier to manoeuvre the Tug, see Paragraph [80].

DW1 (the D’s expert witness) also suggested that the Master of the Tug (DW3) had exercised all due care and skill thus the navigation of the Tug would have made no difference at all, as the Accident was bound to happen given the sequence of anchor deployment and prevailing current conditions, see Paragraph [84]. This opinion was rejected by Mr Justice Ong Chee Kwan as not being supported by the evidence in the case, see Paragraph [85]. His Lordship pointed out that there was a ‘toolbox’ meeting to discuss the conditions and assess the risks / hazards that the Tug may encounter during the Anchor Deployment Operation. No discussion was recorded during this time which raised any concerns on the anchor deployment sequence as this was already known to the D. Further, there was also no indication of the prevailing 1.5 to 2.0 knots current as being unsafe toy carry out the operation, see Paragraph [86]. If the D did not agree with the operational conditions, the would have issued a notice of protest to halt the Anchor Deployment Operations all together, see Paragraph [88].

How Should the Court Treat the Evidence of the D’s Expert DW1?

At the outset, the D had indicated its intention to call an expert witness. By contrast, the P started its case without an expert witness. After closing its case, the P made a belated attempt to call an expert witness, but this was rejected by the Court, see Paragraph [90]. Further, the D argued that since D’s expert witness was not rebutted by another expert appointed by the P, the Court is not entitled to reject DW1’s opinion and seek to substitute it with its own opinion on the matter, see Paragraph [91].

Mr Justice Ong Chee Kwan rejected the D’s submission. His Lordship said that it is not correct to state that expert evidence can only be challenged by another expert. His Lordship also added that merely because a party failed to call his own expert, this does not necessarily mean that the Court is bound to accept the evidence by the expert called by the other party, see Paragraph [95]. 

There may be reasons why a party chooses not to call its own expert, for example, cost, see Paragraph [95]. On the facts of this case before the Court, the P had chosen not to call an expert because it was seeking to rely on the doctrine of res ipsa loquitur, see Paragraph [96]. Mr Justice Ong Chee Kwan also pointed out that the facts of this case are so complicated and technical that this Court is not able to draw its own common sense and experience to determine whether the Accident would have occurred in the ordinary course of the Tug navigating away from a stationery Barge, see Paragraph [96]. His Lordship also took the view that the opinion of DW1 was not based on sound ground or supported by the facts. It was clear that his Lordship was not bound to accept the evidence of DW1, see Paragraph [97].

Mr Justice Ong Chee Kwan also held that there was not inevitable accident in this case suggested by the D. His Lordship ruled that inevitable accident can only be used when the D can prove something happened over which he had no control, and the effect of which could not have been avoided by the exercise of care and skill as in The Albano [1892] P 419, see Paragraph [98].

Was the Master of the Tug (DW3) Negligent When He Failed o Pull Away from the Barge Despite Trying Several Times?

After picking up the P2 anchor socket, DW3 testified he could not reverse the Tug due to the position of the P1 anchor. He also said he could not reverse the Tug because of the positions of anchors P3 and P4. Further, due to the prevailing current conditions, DW3 said the Tug could not move sideways. The Tug had limited room to manoeuvre and the Barge did not change her position, see Paragraph [102]. When DW3 pulled away, he had to engage full engine power of the Tug’s bow thrusters, see Paragraph [103].

DW3 said he was not at fault as he ‘had followed all the procedure’, However, DW3 did admit that, should he had to do the operation all over over again, he would change the sequence of anchor deployment, by throwing the anchor P2 before the anchor P1. The end result of this would be the Tug having more room to manoeuvre, see Paragraph [104]. At no point in time during his testimony, did DW3 ascribe any negligence on his part, see Paragraph [105].

Mr Justice Ong Chee Kwan was not convinced that the D had established on a balance of probabilities, the Master of the Tug’s was not negligent, see Paragraph [106]. There are several reasons for this:

[1] The Master of the Tug could have refused to come alongside the Barge to avoid ending up so near alongside the Barge. The position of the Tug alongside the Barge resulted in limited manoeuvrability space for the stern of the Tug when the Master want to pull away, see Paragraph [112];

[2] DW3 was fully aware of the limited space and the Tug’s restricted manoeuvrability due to the existing deployment of anchors P1, P3 and P4, see Paragraph [113];

Based on the available evidence, Mr Justice Ong Chee Kwan concluded that there was a clear error of judgment by the Master of the Tug when he tried to manoeuvre away from the Barge. In doing so, the Master had a duty not to cause any damage to the Barge which was stationary, see Paragraph [115]. DW3 had allowed the Tug to come too near alongside the Barge. There was a lack of care or a failure to take the necessary avoidance of steps. There was a high risk of a collision from this manoeuvre if the Barge’s heading could not be changed. DW3 was well aware for this as he sought for the Barge to change her heading, see Paragraph [116].

Could the P Discharge its Burden to Prove Damages?

This was what the P had to do after it was established on a balance of probabilities that the accident was caused by a breach of a duty of care by the Master of the Tug (DW3), see Paragraph [119]. Mr Justice Ong Chee Kwan found that the P’s presentation of its claims for damages comes across as wholly unsatisfactory. Here were no supporting documents when the claim was initially filed in Court. Counsel for the P had to seek leave of the Court to file a fresh bundle comprising supporting documents, see Paragraph [121].

However, even though was given to file the fresh documents, several claims remain unsupported, see Paragraph [122]:

[1] ‘Operations cost for the Barge’ in respect of water consumption and crews wages;

[2] Invoices were made out to ‘Two Offshore Marine Sdn Bhd’ and not to the P;

[3] No documents to show that the invoices were in fact paid, let alone by the P;

[4] There were payment vouchers for marine gas oil and ‘cash advances for crew food provision’, but explanation between these expenses incurred and the damages caused by the Accident.

There was also claims for renewal of ship name plates that were undamaged, see Paragraph [123] to [124]. Further, the P’s measurement for the damage to the hull plating was also wrong, see Paragraph [127] to [132]. His Lordship also noted that, ‘no evidence was led by the P to assist the Court to assess what would be the actual repair costs that the P sustained arising from the damage that was caused to the Barge arising from the Accident’, see Paragraph [133].

His Lordship also added that the Barge was already due for her annual survey and would have gone into dry dock whether or not the Accident had occurred, see Paragraph [135]. This meant that the tow charges, mooring charges and all other related charges arising from the dry docking of the Barge would have to be incurred by the P even if the Accident had not occurred, see Paragraph [137]. From an evidential perspective, it is not possible to determine from the Berjaya Dockyard invoice submitted as to which part of the repair works were incurred as a direct result of the Accident and which part of the repair works would have been incurred as a matter of course due to the Barge annual class survey, see Paragraph [138]. His Lordship served that ‘regrettably, no one from Berjaya Dockyard was called by the P to testify on what were the repair works to the Barge that are directly caused by the accident’, see Paragraph [139].

Mr Justice Ong Chee Kwan described what counsel for the P did was to throw all the documents to the Court and expect the Court to work out a ‘fair’ quantum to address the loss sustained by the P arising from the accident. His Lordship pointed out that Counsel for the P failed to understand that a claim for damages (in particular special damages) must be properly supported by documents and is not a matter for the discretion of the Court (eg the famous warning in KC Leong Holdings Sdn Bhd v Datin Moh Bee Ling [2014] 1 LNS 741 not to throw the whole kitchen sink of alleged unprocessed defect and expenses to the court to have them sorted out), see Paragraph [141].

How Should the Court Treat the ‘Calderbank Offer’?

On 27 January 2023, the D’s solicitors made a ‘Calderbank Offer’ to the P (ie named after the famous case Calderbank v Calderbank [1975] 3 All ER 333. This is a written offer made on a without prejudice basis. It is made reserving the right to bring to the offer to the notice of the Court on the question of costs. If the result for the party on which the offer is served, at the end trial, is not more favourable than what has been offered, the party offered may be penalised with costs, see Paragraph [151]. The offer is a strategic tool which encourage settlement and discourage unnecessary litigation, see Paragraph [151].

On the facts of the case, the D had made repeated offers at the prior commencement of the trial, after the close of the P’s case and after the rejection of the D’s initial offer before the commencement of the second tranche of trial, see Paragraph [152]. Mr Justice Ong Chee Kwan noted that the D had made multiple offers on very generous terms, but the P had spurned all those offers. Instead, the P chose to drag the D through litigation which could have been easily resolved at the earliest opportunity, see Paragraph [154]. As the D was vindicated by the Court, as the earlier settlement offer was reasonable, it ought to be treated as the ‘successful party’ to the litigation in terms of costs, see Paragraph [156].

Thank you for reading IMSML Website Article 39/2025

Stay tuned for the next IMSML Website Article 40/2025: MCP International Corp & Anor v SIMS Metal BV (Maersk A/S, intervener) [2024] MLJU 3226 - Ex-Parte Orders to Freeze, Detain and Preserve, as well as Take Samples from Cargo Entering Malaysia on the Maersk’s ‘Ever Gentle’ Container Ship

Signing-off for today,

Dr Irwin Ooi Ui Joo, LL.B(Hons.)(Glamorgan); LL.M (Cardiff); Ph.D (Cardiff); CMILT

Professor of Maritime and Transport Law

Faculty of Law

Universiti Teknologi MARA Shah Alam

Selangor, Malaysia

Tuesday,  30 September 2025

Note that I am the corresponding author for the IMSML Website Articles. My official email address is: uijoo310@uitm.edu.my