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2025 MarsdenLR 4427
HIGH COURT MALAYA KUALA LUMPUR
BOUSTEAD CRUISE CENTRE SDN BHD – Appellant
Versus
NIKMAT MUJUR SDN BHD & ANOR – Respondent
[Admiralty In Personam No: WA-27NCC-6-02/2023]
The doctrine of res ipsa loquitur allows a presumption of negligence when a vessel collides with a stationary object, shifting the burden to the defendant to prove unavoidable circumstances.
Headnote:(A) Tort Law - Doctrine of Res Ipsa Loquitur - The court examined the claims of the Plaintiff against the 2nd Defendant for negligence resulting in a collision causing damages of RM1,043,500.00 - The doctrine applies where the cause of the accident is unknown, but negligence can be inferred from the nature of the accident. (Paras 10, 12, 13, 15)
(B) Negligence - The court established that the mere fact of collision with a stationary object gives rise to a presumption of negligence on the part of the moving vessel, shifting the burden of proof to the defendant to demonstrate that the collision was unavoidable. (Paras 12, 15, 19)
(C) Causation - The Plaintiff successfully proved that damages to the link bridge were caused by the collision, supported by expert testimony and contemporaneous evidence. (Paras 39, 45)
(D) Expert Testimony - The court ruled that the testimony of the 2nd Defendant's expert was inadmissible due to non-compliance with procedural requirements and reliance on assumptions. (Paras 30, 35) (E) Damages - The Plaintiff was awarded RM1,043,500.00 as compensation for the damages sustained, with interest at 5% per annum, confirming that damages in tort are compensatory in nature. (Paras 68)
Introduction
[1] This judgment concerns the claims by the Plaintiff against the 2nd Defendant for damages due to negligence in the navigation and or management and or control of the vessel MT "AYURI" (Official No 335677) which resulted in the 2nd Defendant's vessel colliding with the section link bridge of the Plaintiff's terminal, causing the Plaintiff to suffer a loss of RM1,043,500.00.
[2] The 1st Defendant is no longer a party to the action by the time of the trial as it has been struck out from the proceedings.
[3] The judgment deals with the application of the doctrine of res ipsa loquitur, the issue of causation and the compensatory nature of a claim in tort. Additionally, the 2nd Defendant had subpoenaed an engineer to testify on his report of the collision to the vessel's P & I Club as the 2nd Defendant's expert witness but without any witness statement or affidavit filed. This leads to the question whether the engineer can be considered as the expert witness of the 2nd Defendant and whether his testimony is admissible.
Background Facts
The Parties
[4] The Plaintiff operates a cruise terminal at Westport, Port Klang.
[5] The 2nd Defendant is a Labuan Commodity Trading Company incorporated in Labuan and was the disponent owner and in sole control and or operation and or management of the vessel MT "AYURI" ("the Vessel") at the time of the incident mentioned below.
The Incident
[6] The Plaintiff's cruise terminal is a five-storey detached terminal complex. The pier or jetty of the Plaintiff's cruise terminal comprises a 'T' Shape Reinforced Concrete ("RC") platform, which is connected to the terminal building by a link bridge supported on precast concrete piles.
[7] On 13 February 2017, at or about 1.00 pm, when the 2nd Defendant's Vessel attempted to make a U-turn to head out to the sea after its bunkering operation, the portside of the 2nd Defendant's Vessel had collided with a section of the link bridge. The impact had caused the 2nd Defendant's Vessel's hull to hit against the precast concrete piles, while its bridge was pinned underneath the link bridge. Due to this, a tugboat was required to remove the 2nd Defendant's Vessel at or about 5.00 pm on 14 February 2017. A simplified sketch depicting the collision is set out below:
[8] On the same day as the incident, the 2nd Defendant's representative was promptly informed and issued with a letter of indemnity for the damages sustained by the Plaintiff. The 2nd Defendant's representative signed the letter of indemnity acknowledging the collision and agreeing to indemnify the Plaintiff against, inter alia, all losses, costs, charges, expenses, damages, and liabilities arising from the collision but "without prejudice without accepting any liability further to survey & inspection" ("Letter of Indemnity").
[9] The Plaintiff is assured under a hull and machinery policy by AXA Affin General Insurance Berhad ("AXA"). Following an assessment conducted by AXA's adjusters, it was determined that the total damage suffered by the Plaintiff as a result of the collision amounted to RM1,043,500.00.
Issues To Be Tried
[10] The issues to be determined by this Court are as follows:
(a) whether the 2nd Defendant, its master and crews, servants, agents and or employees were negligent in the navigation and or management and or control of the 2nd Defendant's Vessel which resulted in the collision?
(b) whether the Letter of Indemnity signed by the 2nd Defendant amounts to an admission of liability by the 2nd Defendant?
(c) what is the quantum of loss suffered by the Plaintiff that the 2nd Defendant must compensate the Plaintiff?
Court's Considerations
[11] At the outset, it must be stated that the facts surrounding the collision between the Vessel and the link bridge are not in dispute. It is agreed by the parties that at approximately 1:00 pm., while the Vessel was attempting to make a U-turn to head out to sea, the port side of the Vessel had come into contact with the link bridge at
