A carrier is liable for breach of contract if it delivers goods without the production of original bills of lading, contrary to established shipping law.

[1] This is an appeal by Minmetals South-East Asia Corporation Pte Ltd ('the plaintiff') against the decision of the High Court dismissing its claim against Nakhoda Logistics Sdn Bhd ('the defendant-carrier') for breach of a contract to carry and deliver cargo to the plaintiff. The learned High Court Judge found that the plaintiff failed to prove its claim for USD13,591,622.65 premised on the defendant-carrier's failure to deliver the cargo on presentation on the original bills of lading. The learned High Court Judge also stated alternatively that, if she was wrong on the issue of liability, then the defendant-carrier would only be liable for the sum of RM2,256,968.70. We allowed the plaintiff's appeal on both liability and quantum. The facts are not in dispute and are set out below.

The Salient Facts

[2] The facts have been comprehensively set out by the parties in their submissions. We adopt the factual matrix from these submissions, particularly those of the appellant which are set out in some detail. The parties will be referred to as they were in the Court below.

[3] The plaintiff is a company incorporated in Singapore. It is in the business of trading in commodities and selling retail building material. The plaintiff is lawfully entitled to the cargo shipped under the bills of lading issued by the carrier, ie the defendant.

[4] The defendant-carrier is a company based in Malaysia. It carries out its business based in Port Klang, providing freight, shipping and logistics services. In this case, the defendant-carrier is a Non-Vessel Owning Common Carrier (NVOCC) contracted as carrier of cargo comprising several consignments of timber ('the cargo') for the plaintiff. It is the carrier that issued 25 bills of lading for carriage of the cargo from Port Klang to Shanghai ('House B/Ls'). These are the voyage bills of lading.

[5] Yang Ming Marine Transport Corporation ('Yang Ming') are ocean liners based in Taiwan.

[6] Yang Ming are the authorised agents of the Taiwan company who issued the Yang Ming ocean bills of lading for the cargo ('Yang Ming B/Ls').

[7] Between 5 November 2014 and 8 March 2015, the plaintiff entered into several contracts for the purchase of timber wood ('purchase contracts') from Trinity Tripartners Private Limited ('Trinity') and Oriental Century Limited ('Oriental').

[8] Trinity and Oriental are the sellers of the cargo to the plaintiff under a set of purchase contracts. Jiangsu Sopo Group Shangai Co Ltd ('Jiangsu Sopo') and Shanghai Unidev Import & Export Co Ltd ('Shanghai Unidev') are buyers of the cargo from Minmetals under a set of sales contracts.

[9] Between 21 November 2014 and 4 May 2015, invoices issued under the purchase orders were fully paid up by the plaintiff who thus became the lawful legal and beneficial owner of the batches of timber. It is pertinent to note that the plaintiff's witness PW1 explained under cross-examination that there was no physical purchase of timber, but only the purchase of the 25 sets of House B/Ls. This would enable the plaintiff to onsell the timber to another buyer where delivery could be effected.

[10] Between 10 December 2014 and 19 April 2015 the plaintiff entered into contracts with Shanghai Unidev for the sale of the timber in separate batches. It was agreed that the payment for the timber would be made by way of Letters of Credit ('LCs') or direct payment by Shanghai Unidev.

[11] Between 21 November 2014 and 28 April 2015, the plaintiff entered into con