This claim was brought by the second plaintiff, as litigation representative of the first plaintiff, for a serious brain injury suffered by the first plaintiff while on a boat travelling from Port Klang jetty to Pulau Ketam. During the journey, this first boat collided with a second boat. The claim was made against the partnership which owned the first boat, the individual partners in that partnership, the skipper of the first boat, and the owner of the second boat. The claim sounded in negligence and vicarious liability.

The plaintiffs applied to dispense with the lodging of a preliminary act regarding the collision within two months after the service of the writ of the action on the defendants. The defendants applied to strike out the action for failure to lodge a preliminary act, and because the action was time-barred under s 517 of the Merchant Shipping Ordinance 1952 (the MSO).

Held: Judgment for the plaintiffs. The claim is not time-barred, and the requirement to file a preliminary act is dispensed with.

Section 517 of the MSO, which is based on art 7 of the Collision Convention 1910, provides:

No action shall be maintainable to enforce any claim or lien against a vessel or her owners in respect of any damage or loss to another vessel, her cargo or freight, or any property on board her, or damages for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel, whether such vessel be wholly or partly in fault, or in respect of any salvage services, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused or the salvage services were rendered, and an action shall not be maintainable under this Ordinance to enforce any contribution in respect of an overpaid proportion of any damages for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment:

Provided that any court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend any such period, to such extent and on such conditions as it thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the court, or within the territorial waters of the country to which the plaintiff's ship belongs or in which the plaintiff resides or has his principal place of business, extend any such period to an extent sufficient to give such reasonable opportunity.

Section 6(1)(a) of the Limitation Act 1953 (rev 1981) provides for a six-year limitation period for contract and tort claims. Section 3 of the Limitation Act provides that it 'shall not apply to any action or arbitration for which a period of limitation is prescribed by any other written law or to any action or arbitration to which the Government or the Government of any State is a party and for which if it were between subjects a period of limitation would have been prescribed by any other written law'.

The accident occurred on 15 August 2015. The action was filed on 18 January 2019.

The Judge held that s 517 of the MSO applies if all the following circumstances exist:

(i) there is a collision between a vessel (Vessel A) and another vessel (Vessel B);

(ii) Vessel B has suffered the following damage:

(a) loss and/or damage to Vessel B;

(b) loss and/or damage to cargo, freight and/or property on Vessel B; and/or

(c) loss of life and/or personal injuries suffered by any person on board of Vessel B; and

(iii) Vessel A is at fault, either wholly or partly, for the above loss and/or damage to Vessel B.

Section 517 of the MSO does not apply to a negligence suit by a passenger in Vessel B who has suffered personal injuries due to the negligence of the skippers of Vessels A and/or B (such as this action). Hence, the six-year limitation period in the Limitation Act (not the two-year limitation period in the MSO) applies to this action.

Section 517 of the MSO is similar to the then s 396(1) of the Navigation Act 1912 (Cth). In Burns Philp & Co Ltd v Nelson & Robertson Pty Ltd [1957] 1 Lloyd's Rep 267, 269, Taylor J, sitting as a single judge in the High Court of Australia held:

In approaching the construction of [s 396(1)], it is, I think, of importance to bear in mind that it deals with distinct categories of claims, that is to say, it deals with claims in respect of loss or damage to vessels, their cargo and persons on board, and claims in respect of salvage services. But it does not deal with all claims in respect of damage to vessels, their cargo and persons on board; its operation is restricted to cases where the damage is occasioned, wholly or partly, by the fault of another vessel. If in framing the first part of s. 396, the draftsman had omitted the words 'against a vessel or her owners' and also the subsequent reference to the 'former vessel', and if the reference to 'another vessel' had been to 'any vessel', this part of the section would have travelled far beyond its obvious purpose. This purpose, which is made clear by the interpolation of the words 'against a vessel or its owners' and by the later reference to the 'former vessel' was to prescribe a period of limitation with respect to damage occasioned in a particular way, that is to say, damage occasioned by the fault of one vessel to another vessel or to cargo or persons on the latter vessel.

This decision was affirmed on appeal by a 4-1 majority decision of the High Court of Australia: see Burns Philp & Co Ltd v Nelson & Robertson Pty Ltd (1958) 98 CLR 495. Section 517 of the MSO is also similar to the then s 8 of the Maritime Conventions Act 1911 (UK). In The Niceto De Larrinaga v Larrinaga Steamship Co Ltd [1965] 2 All ER 930, 932, Hewson J followed Taylor J's judgment in Burns Philp & Co in the interpretation of s 8 of the Maritime Conventions Act.

The action therefore cannot be struck out, as it has been filed within the six-year limitation period.

In the event that the two-year limitation period does apply to this action, the Court would nonetheless exercise its discretion under the first limb of the proviso to extend the two-year limitation period in this case. The accident caused the first plaintiff's injury, which substantially diminished her mental capability to file the action within the two-year limitation period. The first plaintiff cannot weigh up pros and cons. Hence, she cannot instruct her solicitors to file this action before the expiry of the two-year limitation period. If an extension order is not granted, there would be a grave injustice to the first plaintiff. Granting an extension order will not cause any irreparable prejudice to the defendants, as the defendants have a right to oppose this action on its merits.

Finally, the Judge granted an order dispensing the requirement for the plaintiffs to file a preliminary act.