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海商海事

CONTRACT (BILL OF LADING) – NO DUTY TO DETECT FRAUD: COURT CLEARS MAERSK OF LIABILITY FOR FALSE CONTAINER WEIGHTS

In Stournaras Stylianos Monoprosopi EPE v Maersk A/S [2025] 2 Lloyd’s Rep 323, the English Commercial Court held that carriers are not liable for fraudulent misdeclarations by shippers where bills of lading are issued for sealed containers. The Court ruled that Maersk had no duty to verify or cross-check declared weights against Verified Gross Mass (VGM) data under the SOLAS Convention, as its obligation under the Hague Rules extended only to the apparent external condition of cargo. However, the judgment signals that a limited duty of care could arise in future where a carrier is put on notice of fraud. For now, carriers may rely on shipper declarations, but consignees must exercise commercial vigilance and due diligence when relying on bills for payment.

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16 November ,2025
侵權行為

EXEMPLARY DAMAGES – STATUTORY BODY DUTY – DAMAGES – OBTAINING APPROVAL

In Big Man Management Sdn Bhd v Tenaga Nasional Bhd [2025] 5 MLJ 290, the Federal Court reinstated nearly RM3.56 million in special damages and awarded RM100,000 in exemplary damages against TNB for wrongfully disconnecting electricity to an ice factory. The Court ruled that “strict proof” of special damages does not mean a higher burden beyond the civil standard of proof and affirmed that TNB, as a statutory monopoly, breached its statutory duty by using disconnection as leverage to collect payment. The judgment underscores that public utilities cannot misuse statutory powers, and consumers wrongfully deprived of essential services may be entitled to punitive remedies in exceptional cases.

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16 November ,2025
海商海事

LEGAL UPDATES – ADMIRALTY JURISDICTION BROADENS: TRUST AND CONVERSION CLAIMS RECOGNISED IN THE MERLION APPLICATION

In Burrows v The Ship “Merlion” [2025] 2 Lloyd’s Rep 281, the Federal Court of Australia confirmed that trust, equitable ownership, conversion, and detinue claims can fall within Admiralty jurisdiction where they relate to a ship’s ownership or possession. However, the Court struck out the Australian Consumer Law claim, finding it a personal cause of action that could not ground an in rem proceeding. The judgment is persuasive for Malaysia, where under section 24(b) of the Courts of Judicature Act 1964 and Order 70 of the Rules of Court 2012, Malaysian courts are also likely to recognise trust-based or possessory interests as proprietary maritime claims, while maintaining the need to file personal contractual claims separately.

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16 November ,2025
海商海事

ADMIRALTY – SINGAPORE HIGH COURT CLARIFIES RIGHTS OF SUIT UNDER BILLS OF LADING ACT AND WRONGFUL ARREST THRESHOLD IN THE JEIL CRYSTAL

In Owners of the Cargo Lately Laden on Board “Jeil Crystal” v Owners of the Vessel “Jeil Crystal” [2025] 2 Lloyd’s Rep 299, the Singapore High Court clarified the operation of the Bills of Lading Act 1992 and the threshold for wrongful arrest. The Court held that Banque Cantonale de Genève (BCGE) ceased to be the lawful holder of the bills of lading once it endorsed and delivered them to its customer, GP Global. Having divested itself of all rights, BCGE had no standing to sue for wrongful switch bills or misdelivery when it arrested the vessel months later. The arrest was found wrongful, as BCGE acted with gross negligence by failing to verify that it possessed the original bills before seeking arrest. This decision reinforces the strict requirement of poss…

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16 November ,2025
合約法

BREACH OF CONTRACT – COURT FINDS EDGENTA IN BREACH: SUPPLYING USED LINENS NOT GOOD ENOUGH FOR UKM HOSPITAL

In Universiti Kebangsaan Malaysia v Edgenta Facilities Management Sdn Bhd [2025] 11 MLJ 783, the High Court held that Edgenta breached its laundry services contract with UKM by failing to supply new linens as intended under the agreement. Although the contract did not explicitly use the word “new,” the Court admitted extrinsic evidence under section 92(b) of the Evidence Act 1950 to establish both parties’ common understanding. The Court also upheld UKM’s RM3.99 million penalty as valid and proportionate, finding that the formula including “days delayed” was consistent with the contract and served a legitimate commercial purpose. Edgenta’s counterclaim for wrongful deductions was dismissed for lack of proof.

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16 November ,2025
运输法

MARINE INSURANCE – WAR RISKS, NOT BUREAUCRACY: UK COURT OF APPEAL UPHOLDS COVER IN INDONESIAN DETENTION CASE

In Delos Shipholding SA & Ors v Allianz Global Corporate & Specialty SE & Ors [2025] 2 Lloyd’s Rep 117, the UK Court of Appeal upheld insurers’ liability for the constructive total loss of the Win Win, rejecting reliance on the “customs or quarantine regulations” exclusion in a war risks policy. The Court ruled that detentions arising from Indonesia’s assertion of sovereignty were not “similar” to customs or health-related arrests, confirming a narrow interpretation of the exclusion. It also clarified under the Insurance Act 2015 that nominee directors without decision-making power do not constitute “senior management,” and that the insured had no duty to disclose criminal charges unrelated to the vessel’s operations. The decision provides key guidance on wa…

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16 November ,2025
合約法

MONEYLENDING – ILLEGALITY– COURT OF APPEAL: LICENSED MONEYLENDERS CAN RECOVER VOID LOANS UNDER RESTITUTION

In Golden Wheel Credit Sdn Bhd v Dato’ Siah Teong Din [2025] MLJU 2245, the Court of Appeal ruled that a licensed moneylender may recover loan monies under section 66 of the Contracts Act 1950, even when the moneylending agreements are void for technical non-compliance with the Moneylenders Act 1951. The Court held that while the agreements were void and unenforceable, they were not illegal, as the lender was duly licensed and the transactions were genuine. Applying the Federal Court’s Detik Ria principles, the Court found that restitution was proportionate and justified, ordering repayment of RM3.38 million to prevent unjust enrichment.

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16 November ,2025
智慧財產

TRADEMARKS ACT 1976 – INFRINGEMENT OF TRADEMARK AND/OR TORT OF PASSING OFF – LEXUS VS LEX: FEDERAL COURT REAFFIRMS EXCLUSIVE TRADEMARK RIGHTS FOR MUNCHY’S

In Munchy Food Industries Sdn Bhd v Huasin Food Industries Sdn Bhd [2022] 1 MLJ 377, the Federal Court restored the High Court’s decision in favour of Munchy’s, ruling that Huasin’s LEX biscuits infringed and passed off the LEXUS trademark. The Court held that “honest concurrent use” cannot be raised where the defendant’s mark is unregistered and unpleaded, and that a trademark owner need not vary its registered mark before commencing infringement or passing off actions. The decision strengthens protection for registered proprietors and highlights that pleadings and exclusivity remain central in trademark disputes.

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16 November ,2025
合約法

BREACH OF CONTRACT – COURT OF APPEAL AFFIRMS LAD: CONTRACTOR LIABLE FOR DELAY, EXTRA CLAIMS REJECTED

In Savelite Engineering Sdn Bhd v Askey Media Technology Sdn Bhd [2025] CLJU 1808, the Court of Appeal upheld the employer’s entitlement to RM768,900 in liquidated damages (LAD) for a 233-day delay in completing a factory project. The Court held that time was of the essence, and the contractor was estopped from denying liability after applying for extensions of time. Applying section 75 of the Contracts Act 1950 and Cubic Electronics, the LAD was found proportionate (~9% of the contract price) and thus reasonable compensation. Claims for additional losses, such as lost rental profits and indemnity to tenants, were barred where an LAD clause exists.

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16 November ,2025

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Recent Legal Updates

EMPLOYMENT – RETRENCHMENT – INDUSTRIAL COURT UPHOLDS GLOBAL RESTRUCTURING: REDUNDANCY VALID DESPITE ONGOING WORK OVERSEAS

30 March ,2026

In Sin Leong v BT Systems (M) Sdn Bhd [2025] 4 ILJ 221, the Industrial Court upheld the employer’s retrenchment exercise following a global restructuring, ruling that the claimant was lawfully dismissed due to genuine redundancy. Although the claimant’s functions continued in India, the Court held that the abolition of the entire Malaysian team sufficed to establish redundancy. The company’s profitability did not negate the restructuring, and the LIFO principle did not apply since the whole department was closed. The decision reinforces that courts will respect managerial prerogative, provided the retrenchment is bona fide and not tainted by mala fide or victimisation.

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DECREE NISI – ADULTERY AND FRAUD – NOT CONCEAL REMARRIAGE – COLLUSION EVIDENCE

30 March ,2026

In Kanagasingam a/l Kandiah v Shireen a/p Chelliah Thiruchelvam & Anor [2026] 7 MLJ 494, the High Court set aside spousal maintenance and committal orders after finding that the ex-wife had fraudulently concealed her remarriage, which by law extinguished her entitlement under section 82 of the Law Reform (Marriage and Divorce) Act 1976. The Court held that consent orders obtained through non-disclosure were vitiated by fraud and ordered repayment of RM310,000, together with RM400,000 in aggravated damages and RM300,000 in exemplary damages. The decision underscores that fraud unravels all, even in family proceedings, and that courts will not hesitate to impose punitive consequences for abuse of process.

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FEDERAL COURT SAVES SECTION 233 CMA: ‘OFFENSIVE’ AND ‘ANNOY’ REMAIN CONSTITUTIONAL

30 March ,2026

In The Government of Malaysia v Heidy Quah Gaik Li [2026] MLJU 384, the Federal Court overturned the Court of Appeal’s ruling that had struck out the words “offensive” and “annoy” from section 233(1)(a) of the Communications and Multimedia Act 1998. The Court held that these terms, when read together with the requirement of intent to annoy, fall within the permissible restrictions on free speech under Article 10(2)(a) of the Federal Constitution. While the impugned words were upheld as constitutional, the respondent’s acquittal was maintained as her Facebook posts criticising immigration detention conditions did not demonstrate the required intent to annoy or harass.

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HIGH COURT ORDERS TIKTOK VIDEO TAKEN DOWN: ADVICE ON SECRET CONVERSION OF MINORS VIOLATES CONSTITUTION

30 March ,2026

In Karnan a/l Rajanthiran & Ors v Firdaus Wong Wai Hung [2025] 9 MLJ 14, the High Court granted a mandatory interim injunction ordering the immediate removal of a viral TikTok video advising how underaged non-Muslim children could be secretly converted to Islam without their parents’ knowledge. The Court held that the advice prima facie breached Article 12(4) of the Federal Constitution, which provides that a minor’s religion must be determined by their parent or guardian. Given the risk of irreparable harm to constitutional rights, the Court found the case “unusually strong and clear” and concluded that justice and the balance of convenience favoured the urgent removal of the video pending trial.

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MARITIME LAW – CLAUSES 28 AND 29 BARECON 2001 – OWNERS CAN’T PICK ANY PORT: COURT LIMITS ‘CONVENIENCE’ IN VESSEL REPOSSESSION CLAUSE

30 March ,2026

In Songa Product and Chemical Tankers III AS v Kairos Shipping II LLC [2026] 1 Lloyd’s Rep 100, the Court of Appeal held that a clause allowing owners to repossess a vessel at a location “convenient to them” does not entitle them to demand redelivery at any distant port of their choosing. The Court emphasised that repossession must occur as soon as reasonably practicable, and where the vessel is already at a safe and accessible port, owners cannot require charterers to incur the cost and risk of sailing it across the world. The decision clarifies that charterers, as gratuitous bailees post-termination, are only obliged to preserve the vessel – not to undertake burdensome repositioning for the owners’ convenience.

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MARINE INSURANCE – FRAUD DOESN’T DEFEAT COVER: COURT UPHOLDS MORTGAGEE’S CLAIM UNDER MII POLICY OF MORTGAGEE’S CLAIM

30 March ,2026

In Oceanus Capital Sarl v Lloyd’s Insurance Co SA (The “Vyssos”) [2026] 1 Lloyd’s Rep 79, the Commercial Court held that a mortgagee was entitled to recover under a Mortgagee’s Interest Insurance (MII) policy despite a forged war risks cover note and a breach of trading warranties by the shipowner. The Court found that the proximate cause of loss was the mine strike, not the forged insurance, and that the mortgagee was not “privy” to the breach, as its consent had been induced by fraud. The decision reinforces that MII policies are designed to protect lenders from owner misconduct and non-recovery under primary insurance, and that fraud will not defeat cover where the mortgagee acted reasonably.

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