Wahab bin Ibrahim & Ors v AET Tanker Holdings Sdn Bhd

[2013] 5 MLJ (Vernon Ong J) 297

A Wahab bin Ibrahim & Ors v AET Tanker Holdings Sdn Bhd

HIGH COURT (JOHOR BAHRU) — NO 23NCVC-171–09 OF 2011

B VERNON ONG J
28 SEPTEMBER 2012

C
Evidence — Hearsay — Admissibility — Whether inadmissible as proof of fact
stated

Tort — Negligence — Economic loss — Claim for — Loss of income and damages
suffered by plaintiffs due to oil spill — Whether plaintiffs had right to claim against
D
defendant — Whether plaintiffs had to be in possession of valid fishing licences or in
possession of valid licences for their fishing vessels and fishing equipments —
Whether plaintiffs’ fishing activities restricted due to oil spill — Whether plaintiffs’
case proven
E
On 25 May 2010, the defendant’s marine vessel, the MV Bunga Kelana, and
another marine vessel were involved in a collision in the Singapore Straits. As a
result of the collision a quantity of oil spilled in the Singapore Straits. Some of
the oil spill entered into Malaysian waters and spread over the coast of
F
Pengerang, Johor. The 264 plaintiffs, who were fishermen who carried out their
fishing activities along the coast of Pengerang, claimed they were unable to
carry out their usual fishing activities for six months or more due to the oil spill.
The plaintiffs thus filed the present action claiming for loss of income and
damages. Although 264 individuals were named as plaintiffs, there were only
G
249 individual plaintiffs at the trial of this action. The defendant questioned
the plaintiffs’ eligibility and right to claim. It was the defendant’s contention
that not all the plaintiffs were licensed fishermen at the material time and that
as such they were not entitled to make a claim against the defendant for their
alleged losses under the Merchant Shipping (Oil Pollution) Act 1994
H
(‘MSOPA’). The defendant also submitted that the plaintiffs’ loss of earnings,
if any, should be for five days only and that the plaintiffs were not entitled to
any special damages as the material facts and particulars of such loss and
damage were not pleaded.

I Held, making an order for the plaintiffs’ claim to be limited to five days of loss
with costs of RM20,000:
(1) As fishing in Malaysian waters was a licensed activity governed by the
Fisheries Act 1985 (‘the FA’), it was an offence under s 8 of the FA for any
person to undertake any fishing activities without a valid licence. In
298 Malayan Law Journal [2013] 5 MLJ

addition to having a valid fishing licence, a fisherman was also required to A

possess a licence for his fishing vessel and fishing equipment under s 11 of
the FA. A perusal of the adjuster’s reports showed that only 24 of the
individual plaintiffs were in possession of valid fishing licences at the
material time, while only 35 out of the 249 plaintiffs were in possession
of valid licences for their fishing vessels and fishing equipments. B
Consequently, only those individual plaintiffs who were in possession of
valid licences issued under ss 8 and 11 of the FA were undertaking their
fishing activities legally. Thus only those 50 individual plaintiffs were
entitled to make their claim against the defendant for their alleged loss
under the MSOPA. The adverse inference under s 114(g) of the Evidence C
Act 1950 would be invoked against the remaining plaintiffs for their
failure to produce their licences under ss 8 and 11 of the FA. Further, a
claimant would be unable to pursue a cause of action if it arose from his
own illegal act (see paras 11–17).
D
(2) The plaintiffs’ witness (‘PW1’) had not offered any plausible explanation
for the discrepancy between what he stated in his claim form and his oral
testimony. In the circumstances PW1’s evidence was inconsistent and not
plausible. Consequently his evidence did not support the plaintiffs’ case
that the loss of income was for a period of four months (see para 21). E
(3) Although the branch manager of City Adjusters (PW3), testified that
based on his research the contamination led to marine life being killed,
under cross-examination he admitted that his report was based on what
the plaintiffs had told him. Consequently, this witness’ evidence should
be treated as hearsay evidence and inadmissible as proof of the fact stated, F
namely that the marine life was endangered due to the oil spill (see paras
22–23).
(4) Thus, there was no evidence to suggest that the marine life in the
Pengerang area had been endangered. Neither was there any evidence of G
seafood contamination. On the other hand, the evidence produced by
the defendant indicated that a period of five days was reasonable in all the
circumstances. As such the plaintiffs’ claim ought to be limited to five
days and the assessment of the same should be referred to the Deputy
Registrar (see paras 31–32). H

[Bahasa Malaysia summary

Pada 25 Mei 2010, kapal laut defendan, MV Bunga Kelana, dan satu lagi kapal
laut telah terlibat dalam pelanggaran di Selat Singapura. Akibat pelanggaran
itu sejumlah minyak telah tumpah di Selat Singapura. Sebahagian daripada I
tumpahan minyak itu telah memasuki perairan Malaysia dan merebak ke
pantai Pengerang, Johor. 264 plaintif, yang merupakan nelayan yang
menjalankan aktiviti menangkap ikan sepanjang pantai Pengerang, mendakwa
mereka tidak dapat menjalankan aktiviti menangkap ikan seperti biasa selama
 Wahab bin Ibrahim & Ors v AET Tanker Holdings Sdn Bhd
[2013] 5 MLJ (Vernon Ong J) 299

A enam bulan akibat tumpahan minyak itu. Plaintif-plaintif dengan itu telah
memfailkan tindakan ini menuntut kerugian pendapatan dan ganti rugi.
Walaupun 264 individu telah dinamakan sebagai plaintif-plaintif, hanya 249
individu plaintif semasa perbicaraan tindakan ini. Defendan telah
mempersoalkan kelayakan dan hak untuk menuntut plaintif-plaintif. Adalah
B hujah defendan bahawa bukan semua plaintif adalah nelayan berlesen pada
masa matan dan oleh demikian mereka tidak berhak membuat tuntutan
terhadap defendan untuk kerugian yang dikatakan mereka di bawah Akta
Perkapalan Saudagar (Pencemaran Minyak) 1994 (‘APSPM’). Defendan juga
berhujah bahawa kehilangan pendapatan plaintif-plaintif, jika ada, patut
C untuk lima hari sahaja dan bahawa plaintif-plaintif tidak berhak untuk apa-apa
ganti rugi khas kerana fakta dan butiran penting berhubung kehilangan dan
kerugian sedemikian tidak diplid.

Diputuskan, membuat perintah untuk tuntutan plaintif-plaintif dihadkan

D kepada kerugian lima hari dengan kos sejumlah RM20,000:
(1) Oleh kerana penangkapan ikan di perairan Malaysia adalah aktiviti
berlesen yang dikawal oleh Akta Perikanan 1985 (‘AP’), ia adalah
kesalahan di bawah s 8 AP untuk mana-mana orang menjalankan
E apa-apa aktiviti penangkapan ikan tanpa lesen sah. Di samping
mempunyai lesen penangkapan ikan yang sah, seorang nelayan juga
dikehendaki memiliki lesen untuk kapal nelayan dan peralatan
penangkapan ikannya di bawah s 11 AP. Penelitian laporan-laporan
pelaras menunjukkan bahawa hanya 24 individu plaintif-plaintif yang
F memiliki lesen menangkap ikan yang sah pada masa matan, manakala
hanya 35 daripada 249 plaintif-plaintif tersebut memiliki lesen sah untuk
kapal menangkap ikan dan peralatan menangkap ikan mereka. Berikutan
itu, hanya individu plaintif-plaintif tersebut yang memiliki lesen sah
yang dikeluarkan di bawah ss 8 dan 11 AP menjalankan aktiviti
G penangkapan ikan secara sah. Oleh itu hanya 50 individu plaintif
tersebut yang berhak membuat tuntutan mereka terhadap defendan
untuk kerugian yang dikatakan mereka di bawah APSPM. Inferens
bertentangan di bawah s 114(g) Akta Keterangan 1950 akan digunakan
terhadap plaintif-plaintif yang tinggal kerana kegagalan mereka
H mengemukakan lesen mereka di bawah ss 8 dan 11 AP. Selanjutnya,
penuntut tidak dapat meneruskan kausa tindakan jika ia timbul daripada
perbuatannya sendiri yang menyalahi undang-undang (lihat perenggan
11–17).
(2) Saksi plaintif-plaintif (‘PW1’) tidak memberikan apa-apa penjelasan
I munasabah untuk percanggahan antara apa yang dinyatakannya dalam
borang tuntutannya dan keterangan lisannya. Dalam keadaan berikut
keterangan PW1 adalah tidak konsisten dan tidak munasabah. Berikutan
itu keterangannya tidak menyokong kes plaintif bahawa kehilangan
pendapatan adalah untuk tempoh empat bulan (lihat perenggan 21).
300 Malayan Law Journal [2013] 5 MLJ

(3) Walaupun pengurus cawangan City Adjusters (‘PW3’), telah memberi A

keterangan berdasarkan kaji selidiknya yang pencemaran itu telah
menyebabkan kehidupan laut mati, semasa pemeriksaan balas dia
mengakui bahawa laporannya adalah berdasarkan apa yang telah
diberitahu oleh plaintif-plaintif kepadanya. Berikutan itu, keterangan
saksi ini patut dianggap sebagai dengar cakap dan tidak diterimapakai B
sebagai bukti fakta yang dinyatakan, terutamanya bahawa kehidupan
laut terancam akibat tumpahan minyak itu (lihat perenggan 22–23).
(4) Oleh itu, tiada keterangan untuk mencadangkan bahawa kehidupan laut
di kawasan Pengerang adalah terancam. Tiada juga keterangan tentang
C
pencemaran makanan laut. Sebaliknya, keterangan yang dikemukakan
oleh defendan menunjukkan bahawa tempoh lima hari adalah
munasabah dalam semua keadaan. Oleh itu tuntutan plaintif-plaintif
patut dihadkan kepada lima hari dan penilaian yang sama patut dirujuk
kepada Timbalan Pendaftar (lihat perenggan 31–32).]
D
Notes
For cases on admissibility, see 7(1) Mallal’s Digest (4th Ed, 2013 Reissue) paras
1955–1962.
For cases on economic loss, see 12 Mallal’s Digest (4th Ed, 2011 Reissue) paras E
1224–1240.

Cases referred to
Chua Kim Suan (administratix of the estate of Teoh Tek Lee, deceased) v
Government of Malaysia & Anor [1994] 1 MLJ 394; [1994] 1 CLJ 321, SC F
(refd)
Dhlamini v Protea Assurance [1974] (4) SA 906(a) (refd)
Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin
Mamat & Ors [2009] 4 MLJ 610, CA (refd)
Leong Hong Khie v PP; Tan Gong Wai v PP [1986] 2 MLJ 206, FC (refd) G
Pitts v Hunt & Anor [1991] 1 QB 24, CA (refd)

Legislation referred to
Evidence Act 1950 s 114(g)
Fisheries Act 1985 ss 8, 11, (3) H
Merchant Shipping (Oil Pollution) Act 1994
T Rajasekaran (T Raja & Co) for the plaintiffs.
Arun Krishnalingam (Mathew Kurien with him) (Sativale Mathew Arun) for the
defendant.
I
Vernon Ong J:

[1] In 2010 a collision at sea occurred in the Singapore Straits involving two
 Wahab bin Ibrahim & Ors v AET Tanker Holdings Sdn Bhd
[2013] 5 MLJ (Vernon Ong J) 301

A marine vessels. Consequently, a quantity of oil spilled in the Singapore Straits.

The plaintiffs are claiming for loss of income and damage due to their inability
to carry out their usual fishing activities as a result of the oil spill.

THE BRIEF ACCOUNT OF THE FACTS

B
[2] On 25 May 2010, MV Bunga Kelana 3 (‘BK3’) a Malaysian registered
marine vessel and a bulk freigther MV Wally (‘Wally’) a St Vincent &
Geraldines registered marine vessel were involved in a collision in the Singapore
Straits close to Singapore island. As a result of the collision, approximately
C 2,500 tons of light crude oil spilled in the Singapore Straits. Some of the oil
spill went down to Pengerang, Johor. The defendant is the registered owner of
BK3.

THE PLAINTIFFS’ CASE

D
[3] Some of the oil spill entered into Malaysian waters and spread over the
coast of Pengerang, Johor. The 249 plaintiffs are fishermen who carry out their
fishing activities along the coast of Pengerang. The plaintiff ’s claim is premised
on the fact that due to the oil spill they were unable to carry out their usual
E
fishing activities for six months thereafter and continuing. They are claiming
for special damages to be assessed, general damages to be assessed, exemplary
damages to be assessed together with interest and costs.

THE DEFENDANT’S DEFENCE

F

[4] Even though the oil spill went down to Pengerang, Johor, the plaintiffs’
fishing activities were not restricted as the plaintiffs could carry out their fishing
activities in other areas at that time.
G
[5] It is also contended that not the whole fishing area and its limits as state
din the licences issued to the plaintiffs were affected as a result of the oil spill as
alleged. The plaintiffs did not suffer any loss and loss of earnings for a period of
four months. The period for loss of earnings should be for five days only.
H Further, the plaintiffs had involved themselves in other paid work throughout
the period and with that they are not allowed to claim the said amount. The
plaintiffs are not entitled to any special damages as the material facts and
particulars of loss and damage were not pleaded. At any rate, the defendant is
entitled to limit any liability, if any, under any of the applicable laws.
I
THE BACKGROUND

[6] At the commencement of this action, 264 individuals were named as

plaintiffs. However, at the trial of this action, learned counsel for the plaintiff
302 Malayan Law Journal [2013] 5 MLJ

applied to delete the names of the 126th, 127th, 162nd, 168th, 172nd, 195th, A
199th, 200th, 202nd, 203rd, 218th, 219th, 224th, 225th and 229th plaintiffs;
consequently, the trial proceeded on the claims of the remaining 249 individual
plaintiffs.

B
[7] For the expeditious and economical disposal of this action, the parties
agreed at the onset of the trial to proceed solely on the issue of liability at the
trial; and if liability is found, for damages to be assessed before the deputy
registrar.
C
[8] The plaintiffs called three witnesses. They included En Ishak bin Hussin
(‘PW1’) the 163rd plaintiff; En Hussain bin Abdul Latif (‘PW2’) the 37th
plaintiff; and En Foo Chit Swee (‘PW3’) the branch manager with City
Adjusters & Investigators Sdn Bhd. The defendant’s five witnesses included Dr
Mark Whittington (‘DW1’) the senior technical adviser in the employ of the D
International Tanker Owners Pollution Federation Limited, London
(‘ITOPF’); En Khairizam bin Abdul Hamid (DW2) the branch manager of
Spica Services (M) Sdn Bhd (Spica Malaysia); Captain K Sugumaran a/l
Kolanthai (‘DW3’) the director and operations manager of Northsea
Inspection & Survey Sdn Bhd (Northsea); En Abdul Hamid bin Yasin (‘DW4’) E
the director of Johor Fisheries Department (‘JFD’); and En Abdullah bin
Ismail (‘DW5’) the director of Lembaga Kamajuan Ikan Malaysia Negeri Johor
(‘LKIM’).

THE FINDINGS OF THE COURT F

Preliminary issue — eligibility and right to claim

[9] Before proceeding to deal with the principal issues, the court will G
consider the preliminary issue relating to eligibility and the respective plaintiffs’
right to claim against the defendant for the alleged loss under the Merchant
Shipping (Oil Pollution) Act 1994 (‘MSOPA 1994’).

[10] It is the defendant’s contention that not all the plaintiffs were licensed H
fishermen or involved in commercial fishing activities in Pengerang waters at
the material time. The plaintiffs’ right to claim must be a recognised right
vested in the claimants at the material time of the incident and must not be
freely available to the public at large.
I
[11] Fishing in Malaysian waters is a licensed activity governed by the
Fisheries Act 1985 (‘FA 1985’). It is an offence for any person to undertake any
fishing activities in Malaysian fisheries waters without a valid licence (s 8 of the
FA 1985).
 Wahab bin Ibrahim & Ors v AET Tanker Holdings Sdn Bhd
[2013] 5 MLJ (Vernon Ong J) 303

A [12] According to the adjuster’s reports issued by City Adjusters produced by

Mr CS Foo only 24 of the individual plaintiffs appear to be in possession of
valid fishing licences at the time of the incident. The 24 individuals in question
are the 12th, 20th, 21st, 24th, 26th, 53rd, 69th, 84th, 87th, 103rd, 110th,
112th, 128th, 131st, 133rd, 134th, 143rd, 156th, 159th, 161st, 178th, 181st,
B 196th and 207th plaintiffs.

[13] It is also pertinent to point out that in addition to having a valid fishing
licence, a fisherman is also required to possess a licence for his fishing vessel and
fishing gears or equipment under s 11 of the FA 1985. Operating a fishing
C vessel without a valid licence is an offence under sub-s (3). It is therefore
abundantly clear that this is a legal requirement for fishermen to have in
possession a valid fishing vessel’s licence before they undertake any fishing
activity in Malaysian fisheries waters.
D
[14] In this regard, a perusal of the adjuster’s reports issued by City Adjusters
show that only 35 out of the 249 plaintiffs were in possession of valid licences
for their fishing vessels and fishing equipments at the time of the incident. The
individuals in question are the third, fifth, seventh, eighth, 11th, 20th, 35th,
37th, 46th, 53rd, 55th, 64th, 71st, 79th, 84th, 112th, 113th, 123rd, 124th,
E
125th, 136th, 138th, 143rd, 153rd, 155th, 156th, 157th, 159th, 160th,
161st, 163rd, 169th, 186th, 193rd and 207th.

[15] On a consideration of the aforesaid, it is clear that the individual

F plaintiffs who were at the material time in possession of valid licences under s 8
of the FA 1985 are entitled to make their claim against the defendant for the
alleged loss under the MSOPA 1994. The individual plaintiffs who were in
possession of valid licences under s 11 of the FA 1985 were undertaking fishing
activity on their respective fishing vessels legally. Consequently, the court is
G prepared to accept that these 35 individual plaintiffs are also entitled to make
their claim against the defendant for the alleged loss under the MSOPA 1994.

[16] As for the remaining plaintiffs, notwithstanding a notice to produce

being served on the plaintiffs’ solicitors calling upon them to produce all the
H plaintiffs’ fishing licences, not all the plaintiffs did so. Instead, the other
plaintiffs relied on the adjuster’s reports by City Adjusters. In the absence of any
explanation for the failure to produce their licences under ss 8 and 11 of the FA
1985, the court is constrained to invoke the adverse inference under para (g) of
s 114 of the Evidence Act 1950 — that those who did not produce their
I licences did not in fact possess any valid licences under ss 8 and 11 of the FA
1985 at the time of the incident.

[17] As a general rule, a court of law will not entertain a claim for illegal
earnings. This rule is found in the maxim ‘ex turpi causa non oritur actio’ which
304 Malayan Law Journal [2013] 5 MLJ

means that a claimant will be unable to pursue a cause of action if it arises in A

connection with his own illegal act. As Dillon LJ said in Pitts v Hunt & Anor
[1991] 1 QB 24 at p 56G:
The most commonly cited anglicisation of the maxim of Lord Mansfield in Holman
v Johnson, 1 Cowp 341, 343 that ‘No court will lend its aid to a man who founds his
cause of action upon an immoral or illegal act’. B
And at p 57B, he said:
That a defence of illegality can be pleaded to a case founded in tort is, in my
judgment, clear, whether or not the defence is correctly called ex turpi causa.
C
[18] Further, in Chua Kim Suan (administratix of the estate of Teoh Tek Lee,
deceased) v Government of Malaysia & Anor [1994] 1 MLJ 394; [1994] 1 CLJ
321 the Supreme Court held that income earned from illegal activity (illegal
operation of a taxi) was illegally obtained and should be disallowed by reason
that it was against public policy. The Supreme Court also referred to Dhlamini D
v Protea Assurance [1974] (4) SA 906(a). In Dhlamini, the claim of an
unlicensed hawker for 20 years for loss of earnings was disallowed on the
ground that such claims were against public policy.

[19] Applying the principles enunciated above to the facts of this case, it is E
the court’s finding that the plaintiffs who were at the time of the incident in
possession of either or both of the licences issued under ss 8 and or 11 of the FA
1985 were undertaking their fishing activities legally. Therefore, the 50
individual plaintiffs who are entitled to make their respective claims against the
defendant are as follows: F
Third, fifth, seventh, eighth, 11th, 12th, 20th, 21st, 24th, 26th, 35th, 37th, 46th,
53rd, 55th, 64th, 69th, 71st, 79th, 84th, 87th, 103rd, 110th, 112th, 113th, 123rd,
124th, 125th, 128th 131st, 133rd, 134th, 136th, 138th, 143rd, 153rd, 155th,
156th, 157th, 159th, 160th, 161st, 163rd, 169th, 178th, 181st, 186th, 193rd,
196th and 207th plaintiffs.
G

THE ISSUES FOR DETERMINATION

[20] It is the plaintiffs’ pleaded case that they could not continue with their
fishing activities in the allocated waters under their licences for six months or H
more due to the oil spill incident and thereby suffered loss and damage.
Accordingly, the principal issue for determination may be formulated as
follows.

WHETHER THE PLAINTIFF’S FISHING ACTIVITIES WERE I

RESTRICTED DUE TO THE OIL SPILL, AND IF SO, FOR HOW
MANY DAYS?

[21] It is the plaintiffs’ claim that the impact of the oil pollution led to a
 Wahab bin Ibrahim & Ors v AET Tanker Holdings Sdn Bhd
[2013] 5 MLJ (Vernon Ong J) 305

A complete loss of income in the first month and then a partial loss of half their
income for the remaining three months. PW1 testified that he suffered a loss of
income for four months which was caused by the pollution which destroyed
fish fry and prawns. However, in his claim form dated 24 June 2010 submitted
through the Fisheries Department, PW1 had stated that the period of loss was
B five days. PW1 did not offer any plausible explanation for the discrepancy
between what he stated in his claim form and his oral testimony. In the
circumstances, PW1’s evidence is inconsistent and not plausible; consequently,
PW1’s evidence does not support the plaintiff ’s case that the loss of income was
for a period of four months. PW2 admitted under cross-examination that his
C claim was in fact limited to five days as that was the period during which he
could not carry out his usual fishing activities.

[22] In further support of their claims, the plaintiffs also relied on the
adjusters reports prepared by City Adjusters — which stated, inter alia, that ‘in
D
addition, the fishes, prawn and marine biology along the shoreline were
destroyed as a result of the loss and affected income for more than four
months’. PW3 the branch manager of City Adjusters testified that the reports
were prepared based on his research; and that the contamination led to fish
stocks and marine life being killed. However, under cross-examination, PW3
E
admitted that his report was based on what was told to him by the plaintiffs.
PW3 did not verify the information independently.

[23] In consequence of PW3’s aforesaid admission, PW3’s evidence must be

F treated as hearsay evidence. As a general rule, hearsay evidence is inadmissible
as proof of a fact which has been stated. The rule against the admission of
hearsay is a fundamental rule. It is not the best evidence, and it is not delivered
on oath. The truthfulness and accuracy of the person whose words are spoken
by another witness cannot be tested by cross-examination (see Lembaga
G Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors
[2009] 4 MLJ 610 (CA); Leong Hong Khie v Public Prosecutor; Tan Gong Wai v
Public Prosecutor [1986] 2 MLJ 206 (FC)). By reason of the foregoing, PW3’s
evidence and consequently, the adjusters reports are hereby discounted in
evidence for being inadmissible.
H
[24] By reason of the foregoing, there does not appear to be any evidence
produced by the plaintiffs to support their case. Be that as it may, it is necessary
to examine the totality of the evidence to determine the actual number of days
the plaintiffs were restricted from carrying out their fishing activities as a result
I of the oil spill.

[25] At this point, it is pertinent to relate the events immediately following

the incident. On 25 May 2010, Northsea was appointed to monitor and or
conduct surveillance of any oil that spilled in Singapore waters encroaching
306 Malayan Law Journal [2013] 5 MLJ

Malaysian waters. Northsea carried out survey on BK3, the waters around A
Pengerang, Johor and shorelines surrounding thereat due to the oil spill. At the
same time, the defendant through the Malaysian Marine Department initiated
the clean-up operation. Four contractors, were appointed to do the shore
clean-up and one contractor was appointed to do the sea clean-up. It is not
disputed that oil was first sighted in the waters around Pengerang in the B
evening of 26 May 2010 and it landed on the beaches the following day.

[26] DW3 testified that the oil slick was spotted in Malaysian waters on
26 May 2010 evening in an area in the vicinity of Pengerang waters. DW3
C
confirmed that the oil slicks were seen in the Pengerang waters for about four
to five days, which was from 26–31 May 2010. DW3 said that sea clean-up
operations took about three to four days and that the shore clean-up operations
took about 10–14 days.
D
[27] DW2 testified that from 25 May 2010–3 June 2010, the Johor
Department of Environment (‘DOE’) set up a 24 hours surveillance operation
room to monitor the impact of the oil spill. Air surveillance was also organised
by the DOE from 25 May 2010–4 June 2010 to detect oil patches in Pengerang
and nearby waters. As confirmed in DOE’s letter dated 5 August 2010, by E
4 June 2010 the oil patches in the Pengerang and nearby waters had already
evaporated and or dispersed within five days.

[28] In the absence of any evidence produced by the plaintiffs relating to

how long the oil spill contamination actually last in and around Pengerang F
waters, the court will now consider the report carried out by ITOPF.
Immediately after the incident, the defendant’s P&I Club, the oil pollution
insurer, requested ITOPF to provide technical services for the oil spill response
and produce an impartial expert report on damage assessment arising from the
incident. ITOPF then prepared a report entitled ‘On the environment impacts G
of oil contamination in Malaysia due to the collision between Bunga Kelana 3
and Waily on 25th May 2010’.

[29] The ITOPF report was prepared by Dr Paul Vorwerk who is no longer
with ITOPF. DW1 produced the ITOPF report (exh D1). It stated that the oil H
which spilled in the incident was a light crude oil known as Bintulu Sweet
Crude. The oil is likely to spread on the water surface and be volatile,
evaporating quickly. The model predicted an initial rapid rate of evaporation
with approximately 55% of the spilled oil removed from the sea surface within
24 hours. Evaporation was predicted to continue over the next four days, at an I
ever reducing rate, until an approximately total of 67% of the oil would have
been lost through this natural process. ITOPF together with the DOE and the
Malaysian Marine Department conducted an aerial helicopter survey on
31 May 2010. According to DW4, even from the outset, the oil presence was
 Wahab bin Ibrahim & Ors v AET Tanker Holdings Sdn Bhd
[2013] 5 MLJ (Vernon Ong J) 307

A not such as to inhibit fishing activities and many fishermen had in fact went out
to sea from 29 May 2010 onwards. By 9 June 2010, there was no oil sighted at
sea at all. The ITOPF report also stated that it considered it likely that the five
day fishery restriction was probably longer than strictly necessary based on the
quantity and movement of the spilled oil from BK3.
B
[30] Is there any evidence to support the plaintiffs’ assertion that the oil
pollution had affected the marine life within the Pengerang area was destroyed
and which led to the loss of income for four months? The only available
evidence was given by DW1. DW1 is a marine biologist with a background in
C fisheries, aquaculture and environmental monitoring. DW1 completed his
PhD in 1993 at the University of Liverpool and has worked in the Middle East,
East Africa and Europe on a variety of marine and coastal projects. DW1
produced a independent technical report issued by ITOPF. This report
contains a section dealing with the effects of the oil spill on the marine
D environment. The effects on the marine environment is contained in para 6.4
of that report. In particular, it is reported that:
The effects of dispersed oil on marine biota in the vicinity of the incident are not
clear, however, no reports have been received from fisherman of tainted fish or
E shellfish which would indicate minimal uptake of oil by the commercially exploited
marine fauna. Wild fish are highly mobile and therefore are likely to sense and avoid
areas of contamination in the water column. Various scientific articles have reported
that fish exposed to oil excrete the contaminant relatively rapidly, with more rapid
excretion of short-chain hydrocarbons and a steady reduction in oil in the tissues to
that of background concentrations.
F
At para 7, the report concluded on the following terms:
No reports of any effects on marine resources have been identified to date other than
claims from fishermen, predominantly for lost income due to a closure of the fishery
for seven days. The large exchange of water between the Johor Straits and the South
G
China Sea would be expected to have diluted any oil dispersed into the water
column relatively quickly.
No evidence on additional environment effects were observed or reported as a result
of the oil released during the incident and given the light nature of the oil, the
extensive cleanup undertaken and the baseline of historic oiling in the vicinity, long
H term effects over and above those from background levels of oilings are unlikely.

[31] Apart from the above reports, there is no evidence to suggest that the
marine life in the Pengerang area had been endangered. Neither was there any
I evidence of seafood contamination.

THE CONCLUSION

[32] In all the circumstances, the court is not satisfied that the plaintiffs have
308 Malayan Law Journal [2013] 5 MLJ

satisfied the evidential burden of proving the loss of income in the first month A
and then a partial loss of half their income for the remaining three months
following the incident. The plaintiffs’ assertion that the marine life was
endangered is also unsupported. On the contrary, the evidence produced by
the defendant indicates that a period of five days is not unreasonable in all the
circumstances. Therefore, the plaintiffs’ claim should be limited to five days of B
loss.

[33] For the foregoing reasons, the claim of the third, fifth, seventh, eighth,
11th, 12th, 20th, 21st, 24th, 26th 35th, 37th, 46th, 53rd, 55th, 64th, 69th,
71st, 79th, 84th, 87th, 103rd, 110th, 112th, 128th, 113th, 123rd, 124th, C
125th, 131st, 133rd, 134th, 136th, 138th, 143rd, 153rd, 155th, 156th,
157th, 159th, 160th, 161st, 163rd, 169th, 178th, 181st, 186th, 193rd, 196th
and 207th plaintiffs are allowed on the following terms:
(a) their claim be limited to five days of loss; D
(b) their loss of income to be referred to the deputy registrar for assessment;

[34] After hearing counsel’s submission on costs, the court awarded costs of
RM20,000 to the plaintiffs.
E
Plaintiffs’ claim ordered to be limited to five days of loss with costs of RM20,000.

Reported by Kohila Nesan

F