JUDGMENT

1. The plaintiff claimed against the 1st, 3rd, 4th and 5th defendants for the loss of the cargo, caused by breach of duty and/or contract and/or negligence. The claim was for a sum of RM110,189.61 plus interest 8% p.a. from the commencement of this action until full settlement and costs. [The action against the 2nd Defendant was by consent discontinued on 17th July, 1996.]

2. On or about 5 August 1994, the plaintiff shipped 125 bundles of sawn timber (hereinafter called the "cargo") at the shippers' wharf, Ensurai, Rajang river, on board of the vessel M.V. "Mercury No. 2" to be carried to Tanjung Manis, and there to be off-loaded into an ocean carrier vessel, M.V. "E.M. Xanthos". The said M.V. "Mercury No. 2" together with [3] its cargo sank on or about 6 August 1994 whilst secured at the jetty of Rimbunan Hijau Plywood at Tanjung Ensurai.

3. "Mercury No. 2" was owned by the 3rd, 4th and 5th defendants, and it was chartered to Rajang Line Sdn. Bhd. (the 1st defendant) and operated by the juragan Tang Chiong Min of Rajang Line. The plaintiff had been in business with 1st defendant, the latter provided transport for the former goods or cargo whenever required and the arrangement had lasted well over 8 years.

4. The relationship between the parties over the years had been less than formal, there was hardly any documentation, e.g. no bill of lading. Transactions between them had been done orally. As in this case, it was an oral agreement between the plaintiff and the 1st defendant over the phone, where the plaintiff had agreed to the freight charges for the carriage of the plaintiff's cargo by M.V. "Mercury No. 2", and that the plaintiff would insure the cargo. It was alleged that the plaintiff had known and accepted that the 1st defendant would not be responsible for loss or damage to the cargo while in transit. Plaintiff's story

5. PW1 testified that there existed an oral agreement between the plaintiff and the 1st defendant to transport two shipments of sawn timber (the cargo). There was no written contract. The transaction was governed by the usual business practice between the parties as established well over 8 years.

6. The plaintiff used the services provided by the 1st defendant, and in this case having negotiated and agreed on the freight charges, the plaintiff's cargo sold to Greenwood Forest Products, Oregon, Vancouver USA; one shipment consisted of S4S Alan Batu sawn timber valued at RM44,976.71 (US$17,376.26) per Invoice No. 94/02/054 (Exhibit P5) and the other shipment valued at RM65,212.90 (US$25,194.29) per Invoice No. 94/02/053 (Exhibit P10) and was loaded into the M.V. "Mercury No. 2". [4]

7. The plaintiff issued two despatch notes Nos. 1540 and 1541 dated 5.8.94 (Exhibits P4 & P9) respectively in respect of the cargo.

8. The two shipments were loaded on the M.V. "Mercury No. 2" by the plaintiff under the supervision of the juragan Tang Chiong Min of M.V. "Mercury No. 2" on behalf of the carrier, Rajang Line Sdn. Bhd. The plaintiff used its own crane to load the cargo onto the vessel.

9. As agreed and, has been the practice, the plaintiff took out two open cover marine insurance for the shipments (Exhibits. P6 & P7). On or about 6 August 1994, the vessel sank at the jetty with its cargo, and all was lost.

10. PW2 Solomon Mo, a Branch Executive and Head of Business of the Guardian Royal Exchange Assurance (M) Sdn. Bhd. testified that he received from the plaintiff two claims for loss of the said cargo. The Guardian then appointed an adjuster, the Inchape Testing Services, Caleb Brett of Kota Kinabalu, Sabah, to investigate whether the claim for loss of cargo was a genuine loss. The report by Caleb Brett stated that it was a genuine loss caused by the sinking of M.V. "Mercury No. 2", the vessel that carried the cargo.

11. The Guardian Assurance was satisfied with the Caleb Brett's report and settled the plaintiff's claims, and issued subrogation receipts (Exhibits. P19 & 20) by which the Guardian Assurance