UK Club has noted that until recently it was not clear whether a party seeking to arrest a vessel in Malaysia had a duty to make full and frank disclosure in its affidavit leading to the warrant of arrest.
The Malaysia High Court, in the case of Premium Vegetable Oils Sdn Bhd v The Owners /or Demise Charterers of The Ship or Vessel ‘Ever Concord’ of The Port of Zanzibar, Tanzania [2021] 9 MLJ 936 has since clarified that there is no such duty, and that the arresting party only has to comply with the relevant provision in the Malaysian Rules of Court 2012.
The Plaintiff was the buyer of palm kernel to be shipped in Malaysia. The Defendant was the owner of the Ever Concord. Upon arrival at the discharge port the Plaintiff discovered that the top surface of the cargo appeared white and the cargo was believed to be mouldy. A report was produced stating that there were traces of chloride.
The Plaintiff commenced an action in rem against the Vessel for loss of /or damage to the cargo during the voyage caused by the Defendant’s negligence /or breach of duty /or breach of contracts in the carriage. The Plaintiff arrested the Vessel.
The Defendant applied to set aside the writ and warrant of arrest, on the basis that the Plaintiff had failed to make full and frank disclosure in its arrest affidavit.
Judgment
The Malaysia High Court held that there were no grounds to set aside the writ and warrant of arrest. It held, amongst other things, that:
UK Club commented that the decision provided clarity on the duty owed by the arresting party when preparing an arrest affidavit. While there was no duty of full and frank disclosure when arresting a vessel in Malaysia, an arresting party should ensure that the arrest affidavit satisfies the relevant requirements in the Malaysian Rules of Court 2012 when applying for a warrant of arrest.
