PBJV GROUP SDN BHD 1. ) ASIAN KALIBER SDN. BHD. 2. ) BUMI ARMADA NAVIGATION SDN. BHD. 3. ) PETROFAC (MALAYSIA-PM 304) LIMITED PENCELAH 1. ) SYNERGY MARINE (M) SDN. BHD. 2. ) EXECUTIVE OFFSHORE SHIPPING SDN. BHD.

PBJV GROUP SDN BHD 1. ) ASIAN KALIBER SDN. BHD. 2. ) BUMI ARMADA NAVIGATION SDN. BHD. 3. ) PETROFAC (MALAYSIA-PM 304) LIMITED PENCELAH 1. ) SYNERGY MARINE (M) SDN. BHD. 2. ) EXECUTIVE OFFSHORE SHIPPING SDN. BHD.

The Close Out Report and Interim Report were documentary hearsay and inadmissible to establish the facts of the incident because the authors and primary witnesses were not called; PBJV therefore failed to prove the required act or omission under Clause 44(a) on the balance of probabilities; independently, Bumi Armada is entitled to the protections of the Knock-for-Knock and Himalaya clauses (Clause 14), which treat Petrofac as part of the Charterers' Group and exempt Owners' Group from liability for damage to Charterers' Group property, so PBJV's claim against Bumi Armada is barred; accordingly PBJV's claims against Asian Kaliber and Bumi Armada are dismissed.

Citation
WA-27NCC-101-11/2020 (Mahkamah Tinggi)
Parties
Plaintiff: PBJV Group Sdn Bhd; 1st Defendant: Asian Kaliber Sdn Bhd; 2nd Defendant: Bumi Armada Navigation Sdn Bhd; 3rd Defendant: Petrofac (Malaysia – PM304) Limited; 1st Third Party: Synergy Marine (M) Sdn Bhd; 2nd Third Party: Executive Offshore Shipping Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 October 2023
Case Number
WA-27NCC-101-11/2020 (Mahkamah Tinggi)
Procedural Posture
Admiralty in Personam (commercial Division) / Judgment After Full Trial
Outcome
PBJV's claims against Asian Kaliber Sdn Bhd and Bumi Armada Navigation Sdn Bhd dismissed
Legal Topics
Indemnity, Charterparty Clauses, Knock for Knock, Himalaya Clause, Documentary Hearsay, Admissibility of Incident Reports, Burden of Proof
Source Language
Malay/English
Admiralty/maritime Law Contract Law Evidence Law Arbitration Law Indemnity Charterparty Clauses Knock for Knock Himalaya Clause +3 more

Case Brief

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Parties

PBJV Group Sdn Bhd

Plaintiff

Asian Kaliber Sdn Bhd

1st Defendant

Bumi Armada Navigation Sdn Bhd

2nd Defendant

Petrofac (Malaysia – PM304) Limited

3rd Defendant

Synergy Marine (M) Sdn Bhd

1st Third Party

Executive Offshore Shipping Sdn Bhd

2nd Third Party

Procedural Posture

Admiralty in Personam (commercial Division) / Judgment After Full Trial

Legal Issues

  1. 1 Whether the Close Out Report and Interim Report are admissible to prove liability or constitute inadmissible documentary hearsay
  2. 2 Whether PBJV discharged its burden to prove an act or omission by Asian Kaliber and/or Bumi Armada under Clause 44(a) of the charterparty
  3. 3 Whether Bumi Armada is protected by the Knock-for-Knock and Himalaya clauses in Clause 14 and thus exempt from liability

Ratio Decidendi

The Close Out Report and Interim Report were documentary hearsay and inadmissible to establish the facts of the incident because the authors and primary witnesses were not called; PBJV therefore failed to prove the required act or omission under Clause 44(a) on the balance of probabilities; independently, Bumi Armada is entitled to the protections of the Knock-for-Knock and Himalaya clauses (Clause 14), which treat Petrofac as part of the Charterers' Group and exempt Owners' Group from liability for damage to Charterers' Group property, so PBJV's claim against Bumi Armada is barred; accordingly PBJV's claims against Asian Kaliber and Bumi Armada are dismissed.

Court Disposition

PBJV's claims against Asian Kaliber Sdn Bhd and Bumi Armada Navigation Sdn Bhd dismissed

Orders

  • Claim dismissed against 1st Defendant Asian Kaliber Sdn Bhd and 2nd Defendant Bumi Armada Navigation Sdn Bhd
  • Costs ordered to PBJV's opponents fixed at RM 50,000.00 for each set of solicitors, subject to the usual payment of allocator