IMSML Website Article 3/2024: Chew Chin Ping & Ors v APL-NOL (Malaysia) Sdn Bhd & Ors [2022] MLJU 1754, Bunker Oil Pollution Compensation

This is the first of ‘a few’ very interesting cases from 2022 that I did not have the opportunity to write about in 2022 or 2023. So here they are. Better late than never. This was a case that was heard by Shamsulbahri Ibrahim JC.

The vessels APL Denver and Wan Hai 301, both container ships, collided at Telok Kabong, Pasir Gudang, Johor. Oil from the vessels spilled and caused pollution in the surrounding seas. The following persons were affected by the pollution:

[1] P1 and P2, both licensed mussel breeders;

[2] P3, a caged fish breeder.

On 13 December 2019, a statement of claim was filed against the owner of the APL Denver (D1), as the sole defendant for the losses caused to the businesses of P1-P3 due to the income which had been decimated due to the pollution. On 11 August 2020, the Ps later successfully added D2, D3 and D4 as co-defendants.

On 3 January 2021, judgment in default of appearance was obtained against all the defendants, except D1, via an ex parte application.

On 16 March 2021, lawyers for the Ps emailed the court order for the judgment in default to Spica Services (M) Sdn Bhd, who allegedly dealt with correspondence for D2 and D3 in Malaysia.

The trial against D1 proceeded for two month, between January to March 2021. For this trial, Justice Evrol Mariette Peters dismissed claims of the Ps against D1 with a cost of RM30,000.

D2, D3 and D4, filed the application in Chew Chin Ping & Ors v APL-NOL (Malaysia) Sdn Bhd & Ors [2022] MLJU 1754 to set aside the judgment in default of appearance. However, Shamsulbahri Ibrahim JC dismissed this application. First, the service by courier from the Ps to the D2 and D3 was not in breach of German Law, and thus amounted to proper and valid service. There is precedent for such service in a previous Malaysian case of Westport Malaysia Sdn Bhd v Northern Democrats mbH and Co KG [2017] MLJU where service was lawfully made to Hamburg, Germany.

Second, service of the amended writ to Spica Services (M) Sdn Bhd was not defective as it was authorised by way of an implied agency to accept any court document on behalf of D2 and D3. Malaysian precedent supports this conclusion, in particular cases such as Abdul Ghani bin Abdullah v Eon Bank Bhd (HHB Holdings Bhd, Third Party) [2011] 8 MLJ 761, a decision of Justice Mary Lim (who is now a Federal Court Justice), and the more recent decision of the Federal Court in Kondisi Utama Sdn Bhd v Baltic Agencies Pte Ltd and Another Appeal [2019] 1 MLJ 181.

Third, the claims by the Ps were not time barred under the Merchant Shipping (Liability and Compensation for Oil and Bunker Oil Pollution) Act 1994. Section 10 which deals with extinguishment of claims, stipulates that a claim in respect of liability incurred under section 3 shall be considered by any court in Malaysia unless the action is commenced:

[1] Within three years from the date the pollution damage occurred; or

[2] Within six years from the date of the incident which caused the pollution damage; or

[3] Where a series of occurrences make up an incident, the six years shall run from the date of the first occurrence.

The claim against D1 was filed 30 December 2019, which is well within the six years, as the pollution incident, ie the collision, occurred on 3 January 2017.

In conclusion, there was no merit in the application by D2 and D3 to set aside the judgment in default of appearance that the Ps obtained against D2 and D3.

Thank you for reading IMSML Website Article 3/2024

Stay tuned for the next IMSML Website Article 4/2024: Enigma Technical Solutions Sdn Bhd v Destini Shipbuilding and Engineering Sdn Bhd [2022] MLJU 2139

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

Head of the Centre for Advocacy and Dispute Resolution

Faculty of Law

Universiti Teknologi MARA Shah Alam

Selangor, Malaysia

Tuesday, 9 January 2024

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