Facts

The plaintiff in a recent High Court case(1) was a provider of ship and rig lay-up services. It had a lay-up site in Labuan. At all materials times, four vessels (the MV El Hadjar, MV Ain Temouchent, MV Nememcha and MV Nedroma) were laid up at the lay-up site.

The plaintiff brought an in rem action against the owners of the vessels for wrongful occupation of its lay-up site and trespassing due to the defendants' failure to remove the vessels from the lay-up site. The plaintiff claimed liquidated damages and sought an order to compel the defendants to remove their vessels. The defendants applied to strike out the in rem action, contending that the plaintiff's claim did not fall within the High Court's admiralty jurisdiction. The court allowed the defendants' application.

Decision

The court acknowledged that its admiralty jurisdiction is provided for under Section 24(b) of the Courts of Judicature Act 1964, which in essence provides the same jurisdiction and authority in relation to admiralty matters as is held by the English High Court of Justice under the UK Supreme Court Act 1981. The court then identified two parts of the Senior Courts Act 1981 (formerly the Supreme Court Act 1981) which were relevant to the plaintiff's claim: Sections 20(2)(m) and 20(2)(n).

The court ruled that the plaintiff's claim did not fall within Section 20(2)(m) of the Senior Courts Act, as this relates to claims "in respect of goods or materials supplied to a ship for her operation or maintenance". After reviewing the pleas and affidavits, the court held that the plaintiff did not contend that goods or services had been supplied to the four vessels in its statement of claim. Instead, the plaintiff relied on averments in an affidavit filed to amend its statement of claim in order to bring its claim within the court's admiralty jurisdiction. However, according to law, an affidavit cannot be used to correct deficiencies in a pleading.(2) As such, the court rejected the plaintiff's averments.

The court then considered whether the plaintiff's claim fell within Section 20(2)(n) of the Senior Courts Act, which relates to "any claim in respect of the construction, repair or equipment of a ship or in respect of dock charges or dues". The court found that there was no dispute over whether the four vessels were laid up in anchorage in open waters or near a dock, wharf or harbour. In any event, the plaintiff did not include dock charges or dues in its statement of claim.

Finally, the plaintiff argued that, based on Pemilik dan Sesiapa Berkenaan Dengan Kapal atau Vesel 'Siti Ayu' dan 'Melati Jaya' v Sarawak Oil Palm Sdn Bhd,(3) the court can dispose of a claim that does not fall under its admiralty jurisdiction when hearing an admiralty action. However, the court found that the facts of that case differed significantly. In Sarawak Oil Palm, the plaintiffs commenced an admiralty action in rem against the defendants for failing to furnish seaworthy tugboats. The plaintiffs' claim thus fell within the High Court's admiralty jurisdiction. However, the defendant issued a counterclaim against the plaintiffs for the wrongful arrest and detention of its two tugboats. The High Court dismissed the plaintiffs' claim, holding that it did not fall within its admiralty jurisdiction. On appeal, the Court of Appeal held that although the two actions were from different jurisdictions, the High Court should have combined them for the sake of convenience and disposed of the counterclaim as a non-admiralty proceeding in an action that originated from an admiralty proceeding.

In the case at hand, no counterclaim was filed. However, since the plaintiff had filed an admiralty action, it had to prove that its claim fell squarely within the court's admiralty jurisdiction. As the plaintiff failed to do so, the court struck out the claim with costs.

For further information on this topic please contact Rajasingam Gothandapani at Shearn Delamore & Co by telephone (+60 3 2070 0644) or email (rajasingam@shearndelamore.com). The Shearn Delamore & Co website can be accessed at www.shearndelamore.com.

Endnotes

(1) International Shipcare Sdn Bhd v The Owner of and other persons interested in the ships or vessels MV 'EL HADJAR' registered at the port of Annaba, Algeria; MV 'AIN TEMOUCHENT', MV 'NEMEMCHA' and MV 'NEDROMA' which are all registered at the port of Algiers, Algeria [2015] 7 MLJ 753.

(2) United Malayan Banking Corporation Berhad v Palm & Vegetable Oils (M) Sdn Bhd [1983] 1 MLJ 206 FC.

(3) [2005] MLJU 428 and [2006] 1 CLJ 126.

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