This was a rehearing of the case on its merits as ordered by the Court of Appeal. The following questions arose in this case:

1. whether the plaintiff was the principal of PK Shipping Agency Co Ltd (PKSA) when PKSA entered into two agreements with the defendant in respect of the ship, the MV Vital Star;
2. whether the defendant was entitled to deviate from the agreed journey to Kyauk Pyu, Myanmar, to Batu Ampar, Batam, Indonesia, on the ground of the ship's engine problems;
3. whether the plaintiff is liable for the defendant’s counterclaim for freight in this case;
4. whether the defendant is entitled to a lien on the plaintiff's steel bars and cement carried on the ship;
5. in respect of PKSA’s supply of bunker oil to the ship, whether PKSA had acted as the plaintiff's agent and if yes, whether the plaintiff was liable to the defendant under s 16 of the Sale of Goods Act 1957 (the Act);
6. whether the defendant is liable to the plaintiff for the tort of detinue and/or tort of conversion in respect of the cargo;
7. whether the plaintiff’s claim is barred by limitation; and
8. whether the defendant can rely on an exclusion clause as a defence against the plaintiff's claim.

Held: The plaintiff's claim is dismissed and the defendant's counterclaim is partially successful.

1. the plaintiff was PKSA’s principal when PKSA entered into the contract of affreightment (COA) and fixture note (FN) with the defendant;
2. the ship’s deviation was justified under cl 3 (Part II) of the COA and/or English case law on the ground that the ship’s deviation was reasonably necessary;
3. the plaintiff was liable for the freight to the defendant by virtue of box 14, cls 25(a), (b), (d) and (e) (COA Rider Clauses), cl 4(b) (Part II) COA and/or clause 12 FN and/or under an oral collateral agreement;
4. the defendant had a right to a lien over the cargo under cl 8 (Part II) COA and there was a lawful exercise of this lien which entitled the defendant to counterclaim for: (a) port charges; (b) unloading charges; and (c) a reasonable amount of warehousing charges;
5. the plaintiff had ratified PKSA's supply of bunker oil but the defendant has nevertheless failed to prove the plaintiff's liability under s 16 of the Act;
6. the defendant was not liable to the plaintiff for the tort of detinue and/or tort of conversion in respect of the cargo;
7. the plaintiff's claim is time-barred pursuant to art 3.6 of the Hague-Visby Rules read with cl 1 of the bill of lading; and
8. the defendant may rely on cl 2 (Part II) COA and cl 23(c) FN as a complete defence to the plaintiff's claim.

Clause 2 of the reverse of the two bills of lading stipulates that the bills and all rights and liabilities thereunder 'shall be governed by and interpreted and construed' in accordance with Thai law and in so far as Thai law does not apply, English law. Defendant's counsel referred to s 46 of Thailand’s Carriage of Goods by Sea Act which provides for a one-year limitation period. Article 3.6 of the Hague-Visby Rules has been interpreted by the House of Lords in Aries Tanker Corporation v Total Transport Ltd (The Aries) [1977] 1 Lloyd's Rep 334 (CMI2194). As explained above, English law does not apply to the two bills of lading. However, there is no objection to resorting to The Aries to interpret art 3.6 of the Hague-Visby Rules. Such a resort is permissible because research is unable to reveal any Malaysian case which has applied art 3.6 of the Hague-Visby Rules. Furthermore, in the interest of certainty and predictability, Malaysian case law should not differ from cases in other jurisdictions regarding the interpretation of multilateral treaties, especially in commercial matters.

According to the two bills of lading, the delivery date of the cargo was 21 October 2011. The one-year limitation period as provided in art 3.6 of the Hague-Visby Rules (as incorporated into the bills of lading) would have expired on 22 October 2012. The plaintiff’s claim was only filed on 10 June 2013 and is therefore time-barred under art 3.6 of the Hague-Visby Rules. The Hague-Visby Rules do not provide for any extension or postponement of the one-year limitation period.