PENCELAH 1. ) G. Rajasingam and Tan Hui Ling for the Plaintiff/1st and 2nd Intervener [Messrs Shearn Delamore & Co.] 2. ) Jeremy M. Joseph and Matthew Van Huizen for the 3 rd Intervener [Messrs Joseph & Partners] 3. ) Foo Siew Yin for the 4

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) TINDAKAN ADMIRALTI IN REM NO.: WA-27NCC-11-02/2021 Tindakan admiralty in rem terhadap: kapal “ORIENTAL DRAGON” (No. IMO 7125861) dari Pelabuhan Panama ANTARA 1. MULAIR OLEG (No. Passport FE005524) (mendakwa sebagai Nakhoda Kapal “ORIENTAL DRAGON” (No. IMO 7125861)) 2. LI XUEYONG (No. Passport: EB9286099) dan 193 orang anak kapal lain yang disenaraikan dalam Lampiran “A” pada Writ (mendakwa sebagai anak kapal bagi Kapal “ORIENTAL DRAGON” (No. IMO 7125861)) …PLAINTIF-PLAINTIF DAN Pemunya dan/atau pihak -pihak yang mempunyai milikan atau kawalan terhadap kapal “ORIENTAL DRAGON” (No. IMO 7125861) dari Pelabuhan Panama …DEFENDAN DAN 1. BRT UW LIMITED (No. Syarikat UK: 03217775) (mendakwa sebagai penyedia modal korporat tunggal untuk Lloyd’s Syndicate 2987 untuk akaun tahun 2019) 1 2. LAVENHAM UNDERWITING LIMITED (No. Syarikat UK: 04512130) (mendakwa sebagai penyedia modal korporat bagi pihaknya sendiri dan bagi pihak penyedia modal korporat lain untuk Lloyd’s Syndicate 2468 untuk akaun tahun 2019) 3. ASIA CAPITAL COMMODITIES TRADE SDN BHD (No. Syarikat:1343080-H) 4. PENANG PORT SDN BHD (No. Syarikat: 199301028806 (283544-D)) ...PENCELAH-PENCELAH JUDGMENT (Enclosure 391 - Defense Default Judgment (Rule 70 rule 20(4)) 1. The Plaintiffs herein have applied to this Court by way of a Notice of Application dated 19.1.2022 in Enclosure 391 (Application) pursuant to Order 70 Rule 20(4) of the Rules of Court 2012 for the following orders:- 1. Judgment in default of Defence be entered against the Defendant on the following terms:- (i) In favour of the First Plaintiff (a) USD30,660.00 (equivalent to RM124,571.58 at rate of exchange of USD1 to RM4.063 as at 9.2.2021) for Outstanding Wages due to the First Plaintiff and earned by the First Plaintiff on board 2 the Ship which are unpaid from September 2020 to January 2021 as set out in Appendix A hereto; (b) USD335,179.85 (equivalent to RM1,361,835.73 at rate of exchange of USD1 to RM4.063 as at 9.2.2021) as Outstanding Disbursements made by the First Plaintiff on account of the Ship as set out in Appendix B hereto; (ii) In favour of the Second Plaintiffs (c) USD1,615,512.28 (equivalent to RM6,563,826.39 at rate of exchange of USD1 to RM4.063 as at 9.2.2021) being the Outstanding Wages due and owed to the Second Plaintiffs for their respective amounts and period of service as set out in Appendix A hereto; 2. Liberty to apply; and 3. Any other order or further relief as deemed fit and proper by this Honourable Court. 2. Amongst the grounds stated in support of the application are that:- 2.1 the Defendant had filed a Notice of Appearance dated 24.2.2021 3 2.2 the Defendant had filed a Stay of Proceedings on 6.3.2021 whilst awaiting the Arbitration proceedings which was dismissed by the Court on 18.11.2021 2.3 On 18.11.2021 the Court had ordered the Defendant to file its Defence to the Statement of Claim on or before 16.12.2021 2.4 the Defendant has failed to file and serve its Defence on or before 16.12.2021 2.5 the Plaintiff prays of Judgment In Default of Defence be entered against the Defendant Background Facts 3. The First Plaintiff is, and was, at all material time, the Master of the Ship “ORIENTAL DRAGON” (IMO No. 7125861) of the Port of Panama (“the Ship”). 4. The Second Plaintiffs are, and were, at all material time, the 194 crew members working/employed on board the Ship. 5. The Defendant is Worldport Corporation Limited (“ WCL”) having its registered address at Room 603, 6/F, Star House, No.3 Salisbury Road, Tsim Sha Tsui, Kowloon, Hong Kong. The Defendant is the registered owner of the Ship and/or is in possession or control of the Ship. 4 6. On 9.2.2021, the Plaintiffs filed the present in rem action against the Ship. 7. The Plaintiffs’ causes of action are as follows; (i) The 1st Plaintiff sued for the Defendant’s failure to pay outstanding wages (as at Jan 2021), Master’s Disbursements and repatriation costs; and (ii) The 2nd Plaintiffs sue for the Defendant’s failure to pay outstanding wages (as at Jan 2021) and repatriations cost. 8. On 11.2.2021, the Writ in Action in Rem was served by the Bailiff on the Ship. 9. Subsequently, on 4.3.2021, the Plaintiffs served the Statement of Claim on the Defendant. 10. The relief sought by the Plaintiffs in the Statement of Claim is as follows. (a) The First Plaintiff’s claim (i) USD30,660.00 (equivalent to RM124,571.58 at rate of exchange of USD1 to RM4.063 as at 9.2.2021) for Outstanding Wages due to him and earned by him on board the Ship which are unpaid from September 2020 to January 2021 and such further sums hereinafter accrue and may be adjudged due and payable to him as at the date of judgment, together with interest and costs; 5 (ii) Alternatively, an Order that the amounts due to the First Plaintiff as Outstanding Wages be assessed by this Court; (iii) USD335,179.85 (equivalent to RM1,361,835.73 at rate of exchange of USD1 to RM4.063 as at 9.2.2021) as Outstanding Disbursements made on account of the Ship; (iv) Alternatively, an Order that the amounts due to the First Plaintiff as Outstanding Disbursements be assessed by this Court; (v) Repatriation costs; (vi) Alternatively, an Order that the amounts due to the First Plaintiff as his Costs of Repatriation be assessed by this Court; (vii) Pre - judgment interest on all sums adjudged to be due to the First Plaintiff at the rate of 5% per annum from the date of this in rem writ to the date of judgment pu rsuant to section 11 of the Civil Law Act 1956; (viii) Post - judgment interest on all sums adjudged to be due to the First Plaintiff at the rate of 5% per annum pursuant to Order 42 rule 12 Rules of Court 2012 from the date of judgment until the date of full satisfaction; (ix) Costs of this action on a solicitor – client basis; and (x) Such further Order or other reliefs as this Honourable Court deems fit. (b) The Second Plaintiffs / 194 crew members (i) USD1,615,512.28 (equivalent to RM6,563,826.39 at rate of exchange of USD1 to RM4.063 as at 9.2.2021) being the Outstanding Wages due and owed to the crew of the 6 Ship for the respective amounts and period stated next to their names in the table of in particulars under Paragraph 18 of the Statement of Claim and for such further sums that hereinafter accrue and may be adjudged due and payable to them as at the date of judgment, together with interest and costs; (ii) Alternatively, an Order that the amounts due to the 194 crew members as Outstanding Wages by assessed by this Court; (iii) Repatriation costs; (iv) Alternatively, an Order that the amounts due to the Second Plaintiffs / 194 crew members as their Costs of Repatriation be assessed by this Court; (v) Pre - judgment interest on all sums adjudged to be due to the Second Plaintiffs / 194 crew members at the rate of 5% per annum from the date of this in rem writ to the date of judgment pursuant to section 11 of the Civil Law Act 1956; (vi) Post - judgment interest on all sums adjudged to be due to the Second Plaintiffs / 194 crew members at the rate of 5% per annum pursuant to Order 42 rule 12 Rules of Court 2012 from the date of judgment until the date of full satisfaction; (vii) Costs of this action on a solicitor – client basis; and (viii) Such further Order or other reliefs as this Honourable Court deems fit 11. To date, the Defendant has failed to file and serve its Defence. 7 12. The 3rd Intervener has sought to oppose the Application. Submissions of the Plaintiff 13. In essence, the Plaintiff had submitted that ; (i) the Application was brought by the Plaintiffs pursuant to section 24(b) of the Courts of Judicature Act 1964 and in particular section 20(2)(o) and 20(2) (p) of the United Kingdom Senior Courts Act 1982 (ii) the Plaintiffs have a valid cause of action for the outstanding wages and disbursements made on account of a ship against the Defendant (iii) the Plaintiffs have satisfied the requirements for a Judgment In Default of Defence according to Order 70 Rule 20(4) of the Rules of Court 2012 (iv) hardship of the Plaintiffs were attributed to the 3rd Intervener, one Asia Capital Commodities Trade Sdn Bhd (3rd Intervener) The 3rd Intervener’s Submissions 5. The 3rd Intervener had submitted inter alia that; (a) the 3rd Intervener has not filed its Defence but that it was their right as interveners to challenge the premise of the disbursements which they allege were made and/or paid by one Thomas Miller Claims Management Ltd (TMCM) and were thus not Master’s Disbursements 8 (b) the Application herein was not the proper forum for the issue of ranking of maritime liens and should instead be raised at the Hearing for Priorities (c) thus, they were not objecting to the other Plaintiff’s prayers save for prayer 1(i)(b) of the Application Court’s Findings 6. Let me begin by referring to Order 70 Rule 20(4) of the Rules of Court 2012 which states: (4) Where a defendant to an action in rem fails to serve a defence on the plaintiff, then after the expiration of the period fixed by or under these rules for service of the defence and upon filing an affidavit stating that no defence was served on him by that defendant during that period, an affidavit verifying the facts on which the action is based and, if a statement of claim was not endorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the court for judgment by default. 7. I would also refer to Section 24(b) of the Courts of Judicature Act 1964 wherein it is provided that:- Without prejudice to the generality of section 23 the civil jurisdiction of the High Court shall include " (b) the same jurisdiction and authority in relation to matters of admiralty as is had by the High Court of Justice in England under the United Kingdom Supreme Court act 1981; 9 8. It would thus now be pertinent to refer to Section 20(1), 20(2)(o) and 20(2) (p) of the United Kingdom Supreme Courts Act 1982 on which the Application is grounded on and which reads:- 20. Admiralty Jurisdiction of High Court (1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say- (a) Jurisdiction to hear and determine any of the questions and claims mentioned in sub section (2)…. (2) The questions and claims referred to in subsection (1)(a) are … (o) any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages); (p) any claim by a master , shipper, charter, agent un respect of disbursements made on account of a ship 9. It was contended by the 1st Plaintiff that he has a valid cause of action for the outstanding wages and Master’s disbursements against the Defendant for its failure to pay the same to the 1st Plaintiff and the 2nd Plaintiff / 194 crew members pursuant to an agreement made between each of them and the Defendant. 10. It is not disputed that a Seafarer’s Employment Agreement (SEA) exists between the Plaintiffs and the Defendant. I have since had the opportunity to examine the SEA and find that it is clear from the same 10 that the ship owner / employer has the responsibility to promptly pay the seafarers amongst others their monthly wages not later than 10 days of the succeeding month, provide subsistence to them, while on board the vessel, consistence with good maritime standards and practices at no costs to the seafarers. It is also a term of the said SEA that the Master will be responsible for to ensure that he ran a seaworthy vessel with safe and proper navigation for the seafarers and to take all reasonable precautions to prevent accident, injury or sickness to the seafarers. 11. As the ship is registered in Panama and Panama is a signatory of the Maritime Labour Convention 2006, as amended, the same will be in force and the Ship and the Defendant is subject to and required to comply with the Maritime Labour Convention 2006, as amended, which provides for amongst others that all seafarers shall be paid for their work regularly and in full in accordance with their employment agreements as per regulation 2.2 paragraph 1. 12. From the facts before me, I thus hold that the Defendant has breached the SEA between the Plaintiffs and the Defendant as well as its obligations under the Maritime Labour Convention 2006, as amended as the Plaintiffs had served on the Ship and performed their obligations which entitled them to claim for their wages during the period of employment onboard the Ship 13. This Court has however, in light of the 3rd Interveners contentions mentioned above now to decide the issue of whether Plaintiff’s claim is well founded pursuant to order 70 rule 20(4) of the Rules of Court 2012. 11 14. It appears to me that the 1st Plaintiff, as the Master of the Ship, had incurred disbursements for and on account of the Ship but what is in dispute is whether he had the power to pledge the owner’s credit in respect of them. 15. In the facts before me, the 1st Plaintiff submits that TMCM had assisted the Ship with the requisite disbursements with a condition that TMCM will hold the Master and/or the Ship Owners and/or the Ship responsible for the costs of supplying the Ship and this Court was referred to by learned counsel for the Plaintiffs to exhibit MO-2 of enclosure 414 in support thereof. 16. I have since read exhibit MO-2 of enclosure 414 in particular the email dated 21.12.2020 from one Patrick bond of TMCM to the Master wherein it is stated inter alia : “….We/underwriters will cover these costs as per the attached which have been requested by the Master - for and on behalf of the vessel and/or the vessel owners. We/underwriters hold the Master and/or vessel owners and/or the vessel responsible for the costs of supplying the vessel and will issue the necessary invoice for the supply in due course.” 17. The said email dated 21.12.2020 from TMCM to the Master is clear that TMCM had stated that the Master was requesting the items “for and on behalf of the vessel and/or the vessel owners” and that TMCM 12 was “hold(ing) the Master and/or vessel owners and/or the vessel responsible for the costs of supplying the vessel and will issue the necessary invoice for the supply in due course”. 18. It is my finding that the disbursements incurred by the Master herein were incurred as the Master of the Ship with liability attached to the same for the Master to be responsible for all supplies as seen in the e mails at exhibit MO-2 of enclosure 414 by the Master making such request and orders to TMCM. This would then make the Master liable personally within the meaning of ‘disbursements’ and be recoverable as Master’s Disbursements. 19. As to what is a Masters Disbursements”, this Court was referred to The Orienta [1895] P49 where the UK Court of Appeal held : “The real meaning of the word "disbursements" in Admiralty practice is disbursements by the master, which he makes himself liable for in respect of necessary things for the ship, for the purposes of navigation, which he, as master of the ship, is there to carry out - necessary in the sense that they must be had immediately - and when the owner is not there, able to give the order, and he is not so near to the master that the master can ask for his authority, and the master is therefore obliged, necessarily, to render himself liable in order to carry out his duty as master.” 20. It was further submitted by the 3rd Intervener’s learned counsel to this Court that such Master’s disbursements must be that which the Master has authority to pledge the Owner’s credit as per The Feronia (1868) LR 2 A& E 65 where the following passages in the judgement were referred to; 13 “It is said that the Court cannot give itself jurisdiction through the act of the registrar, and convert a liability into a disbursement. It is not, however, denied that if the master had borrowed the money and paid with it the bills an hour before the suit was instituted, there would have been a disbursement. One further objection was raised, which must be referred to. It is said that, even if the master were now to pay the bills, the amount thereof could not be allowed in his accounts, for that it would be a payment after institution of suit. So in the present case I shall require the production of these three bills of exchange, and proof that they have been paid, before the amount of the master's claim can be paid to him out of the moneys in the registry. "I will add that if the master's claim is to be reduced, as Messrs. Gregson & Co. contend, by the amount of these three bills of exchange, the only result would be that the master would then pay the bills, and enter a fresh cause against the proceeds in the registry for the amount; and in that case his claim could no longer be opposed. Such a course would only be attended with additional expense to the parties in the cause, and would have no other result.” 21. With respect, my reading of the specific passage in The Feronia (Supra) does not support the contention of the 3rd Intervener’s learned counsel as mentioned above and that the decision in bold above appears to be a decision of the Registrar in a different case known as the Red Rose given by the Registrar in that case. Be that 14 as it may, I find that all the disbursements incurred by the Master herein was done before this suit before this Court was incurred and for and on account of the Ship. 22. On the substantive issue of whether the Plaintiff’s claim is a Master’s disbursements, I have had the opportunity to read the case of The Feronia (supra) relied on by the learned counsels for the 3rd Intervener with reference to the passage by Sir Robert Phillimore where His Lordship stated: “It is said that the Court cannot give itself jurisdiction through the act of the registrar, and convert a liability into a disbursement. It is not, however, denied that if the master had borrowed the money and paid with it the bills an hour before the suit was instituted, there would have been a disbursement. In this case, before the master is paid, the actual disbursement will have been made.” 23. After reading the entire paragraph where the above statement was made, it appears to me that the Court therein was referring to the Master’s claim which is to be paid out of the money’s in the registry where the Master is required to show proof to the Court that this disbursements had been incurred. To justify my decision, I refer to the immediately preceding sentence in the said judgment which held: “But first it is to be observed that in neither of these cases was there a fund earned by freight paid into court; secondly, in this case, the course pursued by the registrar has been to allow the charge, being satisfied upon evidence that the ship had actually received the benefit of the articles which were the subjects of the charge; but, at the same time, not to allow the payment to 15 be made to the master until vouchers for the actual payment of those articles shall have been filed in the registry.” 24. From the facts before me, as seen in enclosures 393 and 414 herein, it would appear that the supplies or things for the Ship were for necessities, such as food fresh water, bunkers amongst others, and which were required to be had immediately and on an urgent basis for and on account of the Ship as there were 194 crew members who were stranded onboard the Ship and who had suffered extreme hardship after being abandoned by the Defendant although such supplies were paid by TMCM. Such expenditure incurred by the Master herein is therefore in my findings proper and necessary and should qualify as a Master’s Disbursements. 25. As the Master and the crew on the Ship were abandoned the Defendant who were its shipowner and thereafter by the 3rd Intervener when it released the Ship from arrest, how else could the Master obtain the said supplies or things for the Ship? It would thus appear to me to be abundantly clear from a practical and obvious perspective, that the Master had to turn to TMCM as the claims handler of the Certificate of Seafarer Abandonment Insurance issued by Seacurus acting on behalf of certain underwrites at Lloyds of London, for such supplies albeit on the express condition that TMCM will hold the Master liable /responsible for the costs thereto. 26. This does not however mean that TMCM had loaned the 1st Plaintiff such funds due to any obligation under the Certificate of Seafarer Abandonment Insurance but it is my judgment that the Master’s Disbursements were incurred by the 1st Plaintiff, by pledging the 16 Owner/Defendant’s credit based on the authority given under the ESA, as the Master of the Ship. 27. The fact that TMCM had paid for such disbursements alone does not make or deem the same as not being a Master’s Disbursements. The material requirement in my view is that before this suit was instituted, there were necessary disbursements incurred by the Master and thus such disbursement will have been made and/or incurred by the Master as the Master has not been paid and has, as the facts before this Court shown, been made liable for the same by TMCM. 28. With respect, I find that the fact that the suppliers were sourced by TMCM’s local correspondents / agents, quotations and invoices were made not made out to the Master or that the Master had no contact with the suppliers amongst others are not sufficient grounds for this Court to find that the disbursements were not Master’s Disbursements as the Court has to take into account the entire factual scenario and circumstances in deciding whether there was in fact a Master’s Disbursements incurred on the grounds mentioned herein above. 29. I therefore hold that there is no legal requirement that the liabilities incurred by the Master as Master’s Disbursements must first be paid by the Master himself before it is to be termed a Master’s Disbursements. 30. It is also my findings that the disbursements incurred before this Court by the Master were incurred in the ordinary course of the 1st Plaintiff’s employment as Master of the Ship as there was, from the 17 documents before me, no dispute as to the same. I further hold that the 1st Plaintiff had implied authority from the Ship’s owners to incur such disbursements and for this I also refer to Section 1 of the SEA which provides: “A. responsibilities of the ship owner/Master 1. To faithfully comply with the stipulated terms and conditions of this Contract, particularly the prompt payment of wages, remittance of allotment and the expeditious settlement of valid claims of the seafarer 2. To make operational on board complaint procedure provided in this agreement and ensure its free access at all times by the seafarer 3. To provide a sea worthy vessel for the seafarer and take all reasonable precautions to prevent accident and injury to the crew including provision of safety equipment, fire prevention, safe and [proper navigation of the vessel and such other precautions necessary to avoid accident, injury or sickness to seafarer” 31. I have also considered the learned counsels for the 3rd Interveners contention that the Master had not ordered the supplies directly from the suppliers or that the Master had acted upon the Chief Engineers judgment and thus was not a Master’s Disbursements and their authority in support thereof of The Mons. [1932] P.109 as to what is descriptive of a Master’s Disbursements. 18 32. This Court finds after examining the case, that the facts in The Mons. (supra) differs from that as in the matter before me where the crew of the Ship here were abandoned. The facts in The Mons. (supra) also show that the dispute over the Master’s Disbursements there were for ‘bunker coal to the vessel…before she started on her voyage to England”. Consequently, I hold that The Mons. (supra) is not authority that the Master has to order the supplies directly from the suppliers before the same is termed Master’s Disbursements. 33. I also find that there is clear and cogent evidence that TMCM had taken the necessary steps to confirm with their local agent the reasonableness of the price for the supplies to the Ship as well as the proper quantities thereby minimizing the costs of the disbursements as can be seen in the various documents in exhibit MO-2 of enclosure 414 more so when taking into account and taking judicial notice of the COVOID 19 pandemic prevalent at the material time which would make the supplies being limited and consequently at a more expansive price amongst others. 34. For this issue, I have examined the quotations from Pan Marine Trading and Ecleanol marine Solution provided by the 3rd Interveners and compared them to that of Shoreline Shiprest Services, the suppliers vis a vis TMCM’s local agent in Penang and find that the dates, unit sizes and qualities are not identical and/or the same and therefore is not an apple to apple comparison and in my opinion an unfair comparison to be considered. I must however add that the allegations of overcharging were not raised in the 3rd Interveners Affidavit in Reply at enclosure 410 and I would in the circumstances 19 agree with the Plaintiff’s learned counsel that the Plaintiff was not given an opportunity to respond to the said allegations. 35. I therefore do not find that the disbursements claimed are exorbitant, over charged and/or unreasonable as claimed by the 3rd Intervener and that the proper precautions have been undertaken based on the evidence before this Court for the disbursement to be incurred by the Master bearing in mind the situation that the Master, the crew and the Ship was under at the material time which necessitated the said supplies. For this I rely on the passage in The Fortuna 4.L.T.N.S 840 which was referred to me by counsel for the Plaintiff and which held: “The conduct of the master through these transactions has been careful and business like and every proper precaution seems to have been complied with on his part……..are not to be invalidated unless some fraud, or collusion be proved or unless it is clearly appeared that some other credit existed or that the money was raised for some other purposes than necessary repairs and expenses”. 36. In this respect I have also noted that the 3rd Intervener had filed an application to release the ship from arrest a couple of days after receiving the Master’s requisition notices to avoid responsibility to maintain and preserve the Ship as well as the welfare of the crew. In such circumstances I thus hold that the supplies were therefore urgently needed and/or necessary on board the Ship as the Ship was left stranded in the Penang waters. 20 37. This Court therefore holds that the Master had incurred liabilities in his capacity as the Master of the Ship and which were necessary for the Ship and its crew and that it was done in the ordinary course of his employment. Accordingly, I hold that the payments although made by TMCM to the suppliers are to be deemed as Master’s Disbursements. 38. Consequently, I hold that the Plaintiffs are entitled to the order as prayed for pursuant to Order 70 Rule 20(4) of the Rules of Court 2012 as (i) the Writ action is in rem on the Ship (ii) the Statement of Claim was served on the Defendant who has not filed their Defence after being so ordered to do so by this Court 39. The Federal Court in The Fordeco Nos 12 And 17; The Owners Of And All Other Persons Interested In The Ships Fordeco No 12 And Fordeco No 17 V Shanghai Hai Xing Shipping Co Ltd, The Owners Of The Ship Mv Xin Hua 10 [2000] 1 MLJ 449 had held “Thirdly, r 20(3) and (4) of O 70 in the context of default judgment would provide a guide in interpreting r 18(4). Where a defendant fails to enter an appearance (r 20(3)) or fails to serve a defence (r 20(4)) within the time limited under these rules, the plaintiff upon filing an affidavit proving service of the writ and upon filing an affidavit verifying the facts on which the action is based, and in the case of the defence, an affidavit that no defence was filed and served, may apply to the court for judgment by default. Under r 21 20(7), the court if satisfied that the applicant's claim is well-founded may give judgment.” 40. For the record, I have taken into account the 3rd Interveners learned counsels submissions on the Master’s disbursements is not a maritime lien under the Peninsular Malaysian law and the arguments in support thereto with reference to the UK Merchant Shipping Act 1854 as well as the subsequent statutes thereto, our sections 131(2) (o) and section 145 of the Merchant Shipping Act 1952 respectively wherein it was inter alia contended that the Minister has the power to make rules concerning the transfer of a Master’s wage right, liens and remedies for the recovery of the Master’s disbursement and the Merchant Shipping Ordinance (Amendment) Act 2016 in particular section 4 thereto. 41. After a perusal and examination of the Merchant Shipping Ordinance (Amendment) Act 2016 and the history or reasoning with regards section 145 of the Merchant Shipping Act 1952 and the argument that Malaysian law had only recognized a maritime lien by virtue of the latter provision and as a result of the Merchant Shipping Ordinance (Amendment) Act 2016, section 145 of the Merchant Shipping Act 1952 had ceased to be recognized as a maritime lien; I find that the said argument is not supported by any case law authority on the point that our law had only recognized a maritime lien by virtue of section 145 of the Merchant Shipping Act 1952. 42. My understanding is that our Admiralty courts have always applied the English position on maritime liens. I refer to the authority of The ‘Halycon Isle’ Bankers Trust International Limited v Todds 22 Shipyard Corporation [1980] 2 MLJ 217 where the Privy council in a judgment delivered by Lord Diplock held: “Subsequent extensions of jurisdiction in rem in respect of maritime claims were made by the Admiralty Court Act, 1861, and by later Merchant Shipping Acts until its modern jurisdiction was laid down in the Administration of Justice Act, 1956, which is in the same terms as the High Court (Admiralty) Jurisdiction Act, of Singapore. “During the period that the English Court of Admiralty regarded itself as applying the general law of the sea" four classes of claims only were treated as giving rise to maritime liens on ships, viz.: (1)Salvage; (2)Collision damage; (3)Seaman's wages; and (4)Bottomry. Bottomry is now obsolete, but historically it provided a normal means of providing security for the price of goods and services supplied to a ship by Necessaries Men outside its home port. Two additional classes of claims were added to this list by statute in the 19th Century. These were (5)Master's wages, and (6)Master's disbursements.” 43. The case of Ocean Gain Shipping Pte Ktd v Owner And/or Charterer of Demise of Vessel Dong Nai Registered at Haiphong port, Vietnam (The Dong Nai) [1996] 4 MLJ 454 has since recognised that there is no relevant difference between the law of Singapore, the law of England and that of Malaysia in the exercise of its admiralty jurisdiction and thus the position of maritime laws as held 23 in The ‘Halycon Isle’ Bankers Trust International Limited. (supra) is equally applicable in this jurisdiction. 44. I further accept that the correct proposition of law on this point is as expounded by Hassan Lah JC (as His Lordship then was) in Lee Wong Yu & Ors v The Owners of the Ship or Vessel “MV Hua Hong Satu” [1999] 6 CLJ 197 where His Lordship had held that: “Only a limited class of maritime liens are recognised in English law. In The "Bold Buccleugh" four categories were listed: (i) damage done by a ship; (ii) salvage; (iii) seamen's wages; (iv) bottomry and respondentia. To these must be added a fifth, statutory category: (v) Master's wages and disbursements.” 45. In fact, both the learned counsels for the 3rd Intervener had in the “Maritime Law Handbook’ as at April 2020 and June 2021 which were co authored jointly by them had inter alia stated that “The Master of a vessel has a lien against his/her vessel to the extent of his/her outstanding disbursements. However, this is conditional upon the true owner of the vessel being personally liable for the claim. No lien arises if the disbursements were incurred on behalf of a demise charterer or any other person”. 46. I have also after scrutinising the “Explanatory Note” in the Bill on the Merchant Shipping Ordinance (Amendment) Act 2016 and after 24 reading the Hansard on the same, which this Court is entitled to in interpreting the said Act, hold that the Parliament’s intention in amending section 145 of the Merchant Shipping Ordinance 1952 was to provide new provisions which were in line with the Maritime Labour Conventions 2006 (MLC 2006) where it is provided in the Hansard that (in Bahasa Malaysia) : “Cadangan penggantian ini akan memasukkan peruntukan baru selaras dengan kehandak MLC 2006 yang mana Malaysia merupakan ahli baru dan bagi tujuan melaraskan perlaksanaan Bahagian III Ops 1952”. 47. Consequently, based on the above, I hold that there is nothing to indicate in the Hansard that Parliament had intended to delete the ‘statutory provisions’ afore mentioned and which was referred to in “MV Hua Hong Satu”(supra) and I, respectfully, hold that there does not appear to me to be any proper legal basis or foundation to cease to treat a Master’s Disbursements as a maritime lien in our jurisdiction. 48. Be that as it may, with respect, this Court is at this juncture dealing exclusively with the Plaintiff’s claim against the Defendant pursuant to Order 70 Rule 20(7) of the Rules of Court 2012 which is in this Court’s view applicable so long as the Defendant has not filed any Defence after the expiration of the period fixed by or under these rules for service of the defence. I agree with the Plaintiff’s learned counsel that so long as the Court is satisfied that the Plaintiff’s claim is well founded, the Court may give judgment for the claim. 25 49. I hold that the Defendant is the actual / real defendant to this action in rem and should be the party answerable to the Plaintiff for the Master’s Disbursements. In this respect I was referred to the case of Pemunya Kapal MV Brihope & Ors v Emmanuel E Okuwosa & Orss [1997] 1 MLJ 453 which adopted the decision in The Bolbina [1993] 3 SLR (R) 896 , a Singapore case wherein our Court of Appeal in the former case had held: “ The ship's owners (and those legally liable for the plaintiffs' claims) enter appearance as of right. Persons interested must obtain leave to intervene and after obtaining leave appear as interveners (I am indebted to Selvam J (as he now is) for this exposition which appears in The Bolbina at p 556)” 50. In the circumstances, I do hold that the 3rd Intervener cannot step into the shoes of the Defendant to oppose the prayer 1(i)(b) of Enclosure 391. On this issue, authority can be found in Kawasaki Kisen Kaisha Ltd v Owners Of The Ship Or Vessel ‘Able Lieutenant’ [2002] 6 MLJ 433; [2003] 1 AMR 72; [2002] 7 CLJ 478 where it was held : “It must also be noted that O 70 r 16 of the RHC provides a specific rule for persons interested in the ship to intervene in an admiralty action and not to come in as a defendant as of right. ….. The test to determine whether a person can be a proper defendant is to consider if that person would be liable for the plaintiff's claim should the plaintiff succeed in the action. Not anyone can jump in as a defendant.” 26 51. This Court, albeit by my predecessor had on 1.10.2021 as per enclosure 308, had also made an order that the determination of priorities of all pending claims be determined before payment out of the proceeds of the sale of the Ship. 52. In the circumstances, I am hereby granting order in terms of prayers 1(i) (a) and (b) and (ii) (c) and (iii) (d) (e) and (f). Dated: 1st day of September 2022 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE KUALA LUMPUR HIGH COURT Parties: G. Rajasingam and Tan Hui Ling for the Plaintiff/1st and 2nd Intervener [Messrs Shearn Delamore & Co.] Jeremy M. Joseph and Matthew Van Huizen for the 3rd Intervener [Messrs Joseph & Partners] Foo Siew Yin for the 4th Intervener [Messrs Shaikh David & Co.] 27