Surveyors must ensure compliance with safety protocols during loading operations; failure to do so constitutes a breach of duty in both contract and negligence.

Introduction

[1] Tropical Network Sdn Bhd (plaintiff) had a consignment of 800.39 MT of Lorol C12-14MY, a liquid alcohol derived from palm oil, that they intended to ship to a customer in Thailand. The cargo was stored at the bulking terminal of Fima Bulking Services Bhd (3rd party) at Port Klang in their shore tank no. 56. On 15 December 2006 the cargo was loaded onto the vessel MT Trans Rayong that was berthed at wharf 23 at Port Klang. It is a requirement of the Malaysian Palm Oil Board (MPOB) that the plaintiff should appoint a licensed surveyor to supervise the loading of the cargo. Hence, the loading was made under the supervision of Geo-Chem Inspection (Malaysia) Sdn Bhd (defendant) that had been appointed by the plaintiff to act as surveyors. The loading started at 11.05am and completed at 5pm. The defendant's attending surveyor was Mr. Steven Ong (DW7) and one Mr. Saravanan assisted him. After completion of the loading, DW7 carried out volume gauging onboard the vessel and found that the quantity had increased to about 843 MT, which is an excess of about 43 MT from the original volume. He then issued a notice of protest to the vessel. The vessel nonetheless left port at about 6.30 in the evening of the same day with the excess quantity. At that stage, it was not yet known that apart from the quantity, the cargo's quality was compromised.

[2] The same evening, the 3rd party carried out investigations on the source of the additional quantity. They found out it was 38.14 MT of a liquid chemical known as C14 Myristic Acid that was mistakenly pumped into tank no. 56 via the inlet valve of the tank. This occurred at 11.53am at the time when the loading from the tank into the vessel was ongoing. The plaintiff was informed of the contamination and the vessel that was on its way to Thailand was recalled to Port Klang. The vessel reached port at 8 o'clock on the morning of 16 December 2006. A meeting was convened the same day at 11.20am between all the parties to investigate the contamination. The minutes of this meeting are at pp. 79-81 of bundle C (agreed on authenticity but subject to cross-examination). At the meeting, the 3rd party through their representative Mr. Aslam Haroon admitted that the 3rd party was responsible for the contamination but insisted that the defendant was also partly to blame. Mr. Thiyagarajah (DW1) representing the defendant acknowledged that it was the duty of the defendant as surveyor to check that all the valves on tank 56, except for the valve for the loading line to the vessel, were locked and sealed. As well, he confirmed that the surveyor Mr. Steven Ong (DW7) did not seal any valve on tank 56 and did not check whether the valves were in open or close position. With that confirmation, Mr. Aslam opined that the defendant was jointly responsible with the 3rd party for the contamination.

[3] Because of the contamination, the consignment was n