The plaintiff was the registered owner of a Malaysian registry dumb barge known as "Pertama Hijau" (the barge).(1) The barge was insured under a marine policy taken up with the defendant.
From 2 April 2018 to 2 July 2018, while the barge was dry docked, the plaintiff had submitted the barge for a survey by Nippon Kaiji Kyokai (NKK), which was an internationally recognised classification house. The survey was to ensure that the specifications and seaworthiness of the barge had not declined. It was also necessary to maintain the NKK's classification. NKK had suspended the barge's classification while the barge was dry docked. Subsequently, NKK reinstated the barge's classification upon the completion of the survey on 2 July 2018.
Plaintiff's claim
The plaintiff alleged that the barge had floundered in heavy seas off the coast of the Solomon Islands while laden with cargo and, under a towage, had capsized on 27 September 2018 and subsequently sank. The plaintiff's claim herein was premised on the defendant's refusal to honour the policy.
The defendant alleged that the policy need not be honoured as the barge's classification had been suspended, which amounted to a breach of an express warranty of the terms of the policy, to which the plaintiff contended that it had no knowledge of the suspension and the classification had subsequently been reinstated.
The High Court found that NKK had expressly given the plaintiff, as the owner of the barge, a window of six months in each year (from 1 October to 1 April) to undertake its annual survey and maintain its classification. However, the barge was submitted for survey one day outside the permitted window. Thus, the classification suspension was clearly the fault of the plaintiff's negligence and, therefore, amounted to a breach of warranty of the policy.
Based on the above, the plaintiff's claim against the defendant was obviously unsustainable. The defendant's application to strike out the plaintiff's statement of claim was permitted. The defendant's application for a summary judgment for its counterclaim against the plaintiff was also permitted.
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Endnotes
(1) Seapower Shipping Sdn Bhd v QBE Insurance (Malaysia) Bhd [2022] MLJU 1796.