Yew Huoi, How & Associates | Leading Malaysia Law Firm

Menu

SHIPPING LAW – SHIP ARREST – MORTGAGE – ACTION IN REM – SERVICE WITHIN MALAYSIA

Q: Can I file a Writ In Rem in Kuala Lumpur and have the ship arrested in Kota Kinabalu?

A: Yes. This is because Section 7(2) of the Courts Judicature Act 1964 (“CJA 1964”) allows any writ and warrant issued within the High Court Malaya be executed or served anywhere in Malaysia. This would include Sabah and Sarawak.

Cases In Point: Re Aro Co Ltd [1980] 1 All ER 1067 (EWCA); The Monica S [1967] 2 Lloyd’s Rep 113; ‘The Fierbinti’ [1994] 3 SLR 864 and Nassau Maritime Holdings Designated Activity Co v The Owners of the Ship or Vessel ‘Cape Lambert’ [2020] 11 MLJ 561

Q: What is a Writ In Rem?

A: A Writ In Rem is a legal document that invoke the admiralty jurisdiction of the High Court against “the thing” or “res” in dispute. The thing or res is usually a ship. A Writ In Rem can be distinguished from a normal writ which is issued against a person or body of person. This is also known as a Writ In Personam. A Writ in Rem may be issued even when the res is outside the territorial jurisdiction of the court. It can then be served when the res eventually comes within the court’s territorial jurisdiction.

 

Q: How can I invoke the admiralty jurisdiction of the High Court?

A: Admiralty jurisdiction of the High Court may be invoked if the criteria set out in Sections 20 and 21 of the UK Seniors Court Act 1981 (“SCA 1981”) are fulfilled.

Q: My company has failed to pay the loans of the bank in respect of a ship mortgaged to the bank. Can the bank arrest the ship of my company?

A: Yes. Mortgage or charge on a ship falls within the category in Section 20(2)(c) of the SCA 1981. Admiralty jurisdiction of the High Court may be invoked.

Q: What if my company has sold the ship to a new buyer. Can the bank still pursue the claim against the res i.e. the ship?

A: Yes. Mortgage claim falls within the category where an action in rem may be brought against the res in connection with the mortgage. Unlike in a situation of cargo damage claim (which is explained in our previous legal update), the bank does not have to show the owner is liable in personam to pay the loan. Hence, even if the owner of the vessel has changed, an action in rem can still be brought against the res i.e. the ship.

Back to Latest Legal Updates

Recent Post

JURISDICTION – CHOOSING THE RIGHT COURT: THE SEA JUSTICE CASE HIGHLIGHTS WHERE MARITIME DISPUTES SHOULD BE HEARD

In The Sea Justice cases [2024] 2 Lloyd’s Rep 383 and [2024] 2 Lloyd’s Rep 429, the Singapore courts tackled a key question: which country should handle a maritime dispute when incidents span international waters? After examining the location of the collision, existing limitation funds in China, and witness availability, the courts concluded that China was the more appropriate forum. This ruling highlights that courts will often defer to the jurisdiction with the closest ties to the incident, ensuring efficient and fair handling of cross-border maritime disputes. This approach is also relevant in Malaysia, where similar principles apply.

Read More »
17 11 月 ,2024 尚無留言

BREACH OF CONTRACT – FORCE MAJEURE – FORCE MAJEURE UNPACKED: WHEN ‘REASONABLE ENDEAVOURS’ DON’T BEND CONTRACT TERMS

The UK Supreme Court clarified the limits of force majeure clauses, ruling that “reasonable endeavours” do not require a party to accept alternative performance outside the agreed contract terms. This decision emphasizes that force majeure clauses are meant to uphold, not alter, original obligations – even in unexpected circumstances. The case serves as a reminder for businesses to define alternative options explicitly within their contracts if flexibility is desired.

Read More »
17 11 月 ,2024 尚無留言

NEGLIGENCE – MEDICAL NEGLIGENCE – HOSPITAL ACCOUNTABILITY REINFORCED: COURT UPHOLDS NON-DELEGABLE DUTY IN MEDICAL NEGLIGENCE

In a landmark ruling, the court reinforced the hospital’s non-delegable duty of care, holding that even when services are outsourced to independent contractors, the hospital remains accountable for patient welfare. This decision emphasizes that vulnerable patients, reliant on medical institutions, must be safeguarded against harm caused by third-party providers. The ruling ultimately rejected the hospital’s defense of independence for contracted consultants, underscoring a high standard of duty owed to patients.

Read More »
17 11 月 ,2024 尚無留言

CONTRACTS – CONTRACT FOR THE SALE OF GOODS FOB – REMOTENESS OF DAMAGES IN BACK-TO-BACK CONTRACTS – COURT DEFINES LIMITS ON LIABILITY

In a complex dispute involving back-to-back contracts, the court clarified the boundaries for assessing damages, emphasizing that a chain of contracts does not automatically ensure liability passes through. Although substantial losses resulted from delays and disruption, the court highlighted the importance of the remoteness of damages, noting that each contract’s unique terms ultimately limited liability. This decision emphasise the need for parties in chain contracts to carefully define indemnity and liability provisions, as damages are assessed based on foreseeability rather than simply the structure of linked agreements.

Read More »
17 11 月 ,2024 尚無留言

TORT – BREAKING CONFIDENTIALITY – COURT CRACKS DOWN ON INSIDER LEAKS AND CORPORATE CONSPIRACY

In a recent ruling on corporate confidentiality, the court held two former employees liable for disclosing sensitive business information to a competitor, deeming it a breach of both employment contracts and fiduciary duties. This case highlights the serious consequences of unauthorized sharing of proprietary data and reinforces that such disclosures can lead to substantial legal and financial repercussions, even for the receiving parties if they knowingly benefit from confidential information.

Read More »
17 11 月 ,2024 尚無留言
zh_TWZH
en_USEN ms_MYMY zh_TWZH
× 联系我们