United Asbestos Cement Bhd (the plaintiff) filed a claim against United Commercial Trading (M) Sdn Bhd (the defendant) for its failure to deliver the plaintiff's cargo unloaded from the Prometheus. The defendant was the owner of a lighter. Under a written agreement between the parties, the defendant agreed at the request of the plaintiff to act from time to time as its forwarding agent, carrier and bailee.

The defendant applied for an order that the statement of claim in the action should be struck out and dismissed on the ground that the plaintiff's claim was not brought within one year from the date when the cargo should have been delivered, as stated under art 3.6 of the First Schedule to the Carriage of Goods by Sea Ordinance 1950 incorporating the Hague Rules. The cargo should have been delivered in August 1978. However, the current action was brought and commenced in November 1980, two years after the cargo was delivered.

The plaintiff argued that the defendant was not a carrier.

Held: Motion dismissed.

The question whether the defendant was a carrier could not be determined purely on affidavits, as evidence had to be led to determine the exact relationship between the plaintiff and the defendant. In this case, there were no bills of lading to demonstrate that the defendant was a carrier. Therefore, unless there was a bill of lading or any similar document of title which regulated the relationship between a carrier and the holder of such a document, the Court was in no position to strike out the action.