The defendants agreed to carry the plaintiff's goods from Tatau, Sarawak, Malaysia, to Kuala Balait, Brunei, Malaysia, on the defendants' vessel MV Lubok Nibong. In August 1952, the vessel struck a bar and grounded near Miri, Sarawak, Malaysia. The master ordered that the plaintiff's goods be jettisoned. The plaintiff sued. The plaintiff argued that the grounding occurred through negligence; that the vessel made an unauthorised deviation in attempting to enter the Miri harbour; and that jettison of the cargo was unjustified.

Held: Judgment for the plaintiff.

As to the question of negligence, the Rules to the Carriage of Goods by Sea Ordinance (Laws of Sarawak vol 3 ch 90) govern. Section 2 of this Ordinance reads:

Subject to the provisions of this Ordinance, the Rules set out in the Schedule hereto (hereinafter referred to as the Rules) shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in the Colony to any other port whether within or outside the Colony.

Article 4 of the Rules deals with 'Rights and Immunities'. The relevant parts of art 4.2 are as follows:

2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from

(a) Act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship; …

(c) perils, dangers and accidents of the sea or other navigable waters; …

(e) act of war …

These provisions are applicable here. They excuse the defendants from liability in respect of the vessel's grounding.

Meanwhile, the vessel did not make an unauthorised deviation. The contract of affreightment was neither a charterparty nor a bill of lading. It did not prevent the vessel from calling at Miri. The plaintiff did not charter the vessel.

Nevertheless, on the evidence, the jettison of the plaintiff's cargo was a justifiable general average sacrifice made in the interest of the vessel and the cargo. The general average loss sustained must be made good in part by a general average contribution: Halsbury's Laws (2nd edn, 1938) vol 30, paras 750-752, 757, 760. The three interests involved in the adventure were the ship, cargo, and freight. A different cargo belonging to a third party was disregarded because that third party was untraceable. The ship itself suffered no loss. The defendants lost freight. The plaintiff lost its cargo. The Court, without elaborating, valued the plaintiff's cargo at slightly more than four-thirds of the plaintiff's claim for the cargo. The general average contributions to these losses must be assessed proportionately to the interests at stake. The plaintiff's loss exceeded the defendants' loss. The defendants must pay their general average contribution towards the cargo loss less the plaintiff's general average contribution towards to the freight loss.