Dato Mary Lim Thiam Suan J:

GROUNDS OF DECISION

Background facts

[1]On 20.4.2007, Lembaga Pelabuhan Kuantan awarded the Defendant a contract to salvage the wreck of a vessel known as MV Rico which had sunk off the coast of Kuantan. The Defendant appointed New Pusan Underwater Development Co as its subcontractor to salvage and dispose of the wreck.

[2] But, first, the clinker in the MV Rico had to be removed. The Defendant appointed See Song & Sons Sdn Bhd, the owners of a barge known as "Meisun G7" for that. The Plaintiff was to come in and remove the "carcass" after that clinker had been removed. The Defendant paid the Plaintiff the sum of RM1,529,100.00 for charter days together with the cost of mobilization and demobilization.

[3]Unfortunately, on 30.10.2007, the Meisun G7 accidentally collided into the MV Rico resulting in itself sinking next to the MV Rico. The clinker that was supposed to be removed remained. The Defendant referred to this as the "first abortive attempt".

[4] On 25.8.2008, MMS Gagah arrived at the Kuantan Port and a Notice of Readiness to work was issued. According to the Plaintiff, the charter period commenced from 2.8.2008 to 1.9.2008. The Plaintiff claimed that the hire period was subsequently extended for a further 5 days 17 hours with effect from 2.9.2008 to 7.9.2008 including the mobilization and redelivery of MMS Gagah to Pasir Gudang in Johor Bahru. The Plaintiff's claim for the sum of RM863.591.86 together with interest is for that 5 day extended period of hire.

[5] In denying the claim, the Defendant relies mainly on the plea of frustration. The Defendant further counterclaimed seeking for a refund of the sum paid under the original period of hire. Specifically, the Dfendant denied that the charter hire was extended.

Findings

[6] The parties had agreed on the following two issues:

i Whether the Plaintiff is entitled to the payment for theextended period pursuant to the provisions of the charterparty agreement?

ii Whether the Defendant is entitled to their counterclaimfor reasons that the charter party agreement has beenfrustrated?

[7] The determination of these two issues requires the question of whether the frustration applies in the facts and circumstances of this case to be answered first. This is how the Defendant has pitched the defence of frustration.

[8] Mr. Peter Yap, learned counsel for the Defendant submitted that there were two attempts to "cut and lift" the MV Rico. Both attempts were "abortive". The "1st abortive attempt" took place when the Meisun G7 collided into the MV Rico and sank on 30.10.2007. When that happened, the Plaintiff could not carry out the cutting and lifting of MV Rico. The intended works were then abandoned. Hence, described as the "1st abortive attempt".

[9] Then, the 2nd attempt. This was about 9 months after the first abortive attempt. On or about 25.8.2008, the MMS Gagah arrived at Kuantan Port and a Notice of Readiness was issued. The Defendant alleged that from this date, the Plaintiff "unilaterally commenced charging the Defendant... at the rate of USD50,000.00 per day under the 2007 Contract..."

[10] Learned counsel went on to submit that "On 2.9.2008, the Plaintiff issued a Notice of Redelivery of MMS Gagah to the Defendant that indicated that the Plaintiff was proceeding with demobilization". The Plaintiff proceeded to demobilize on 6.9.2008 and arrived back at Pasir Gudang on 7.9.2008. The Plaintiff's claim is "based from the 2 September 2008 to 7 September 2008 (a total of 5 days and 17 hours) at the rate of S$50,000.00 per day".

[11] The Defendant alleged that throughout the entire period from 25.8.2008 to 7.9.2008, this "2nd abortive attempt", the Plaintiff did not do any cutting or lifting works for the MV Rico, the very work which the Plaintiff was engaged for. The reason for this inability to carry out the works was again due to the presence of the un-removed clinker; the same reason for the 1st abortive attempt.

[12] Learned counsel submitted that the Pl