ANDREW WEIR SHIPPING Ltd v WARTSILA UK Ltd and another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Cooke |
| Judgment Date | 11 June 2004 |
| Neutral Citation | [2004] EWHC 1284 (Comm) |
| Docket Number | Case No: 2003/600 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 11 June 2004 |
[2004] EWHC 1284 (Comm)
IN THE HIGH COURT of JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cooke
Case No: 2003/600
Mr Bernard Eder QC and Mr Simon Bryan (instructed by Mills & Co, Solicitors, Newcastle upon Tyne) for the Claimant
Mr Richard King and Ms Angela Hall (instructed by Messrs Rawlinson Butler, Solicitors, Crawley, West Sussex) for the Defendants
Hearing dates: 25 th and 26 th May 2004
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Cooke :
Introduction
There are three applications for determination by the Court in this action where the claimants AWSL, who were bareboat chartered Owners of the ship "Baltic Eider" claim against the Second Defendants (WFI), a Finnish company which designed and manufactured the engines for the vessel and the First Defendants (WUK), an English registered company which supplies spare parts, service engineers and technical data to Owners of those engines in this country. The Baltic Eider had two Wartsila 46 engines installed when the vessel was built by Hyundai in 1989 and which were subject to a three-year guarantee for which WFI was responsible. In 1993 WFI updated the engines to the latest specification and various field tests were carried out by WFI on those engines by specific agreement with AWSL, as part of a voluntary research and development programme.
On 5 th August 2001, a serious fire occurred in the Port engine. It is AWSL's case that this originated at unit 4 of the Port engine and resulted from the loosening of an erosion plug on the fuel injection pump of that unit which occurred because a copper (as opposed to a steel) washer was used under the head of the erosion plug, because the manual supplied for use with the engine specified a torque setting that was insufficient and because no locking device was provided for use with the erosion plug. AWSL contends that WFI and WUK were or should have been well aware of this, because of previous experience on a similar engine, the Wartsila 32, where they had issued advice or warnings to customers. No such advice or warnings were given to Wartsila 46 Owners. The sum claimed is in excess of $5M.
The claim form was issued and served in June 2003 upon WUK and upon WFI in Finland. Particulars of claim have also been served, a draft amended version of the Particulars of Claim has been produced and WUK have provided a draft Defence. The first application is WFI's challenge to the jurisdiction of the Court to hear the claim against it on the basis that it is domiciled in Finland and is therefore entitled to insist on being sued there under Article 2 of Council Regulation 44/2001. WFI maintains that, because there is no real issue that AWSL may reasonably ask the Court to try on its claims against WUK, there is no basis for bringing WFI into the jurisdiction under Article 6(1). WFI also maintains that there is no other basis, whether under Article 5 or otherwise whereby it can be brought into the jurisdiction. The second application is that of WUK which has applied for reverse Summary Judgment under Part 24 on the basis that AWSL has no realistic prospect of success in pursuing it. The third application is an application by AWSL for permission to amend its Particulars of Claim which is opposed on the basis that the new pleas also have no realistic prospect of success.
In practice therefore, the main issue between the parties is whether or not the claim, whether as originally formulated or as subsequently formulated has any realistic prospect of success against WUK, although other issues arise in relation to WFI's jurisdictional challenge should it succeed on this point.
The Undisputed Facts
The following undisputed facts are relied on by AWSL:-
i) AWSL has an existing and long-standing relationship with WUK as a distributor and supplier of spare parts for a variety of engines (including but not limited to Wartsila 46's). WUK has also supplied engineers, who have provided services and participated in work on engines fitted to AWSL vessels.
ii) The local Wartsila companies (here WUK) support the operations of the Wartsila Group in their respective countries, and WUK is the local company in the UK.
iii) WUK is responsible for servicing Wartsila engines sold by the relevant factory to WUK's customers including AWSL, on request, as evidenced by the WFI document entitled "WFI Responsibility List/Engines and Installations".
iv) Generally WUK's business concerns the supply of spare parts to WUK's customers and the provision of servicing to such customers including AWSL, on request. In carrying out the latter function, WUK's service engineers will endeavour to use their skill, experience and training.
v) In terms of after sales service, the system has been for engines sold to be part of the responsibility of the local network company and WUK has aimed to liaise directly with UK customers for the servicing of the engines and the supply of spare parts, in particular since 1998.
vi) Each local service network company (here WUK) has specially appointed fully dedicated contact people to handle technical inquiries.
vii) In 1997 WUK started a "Key Account Manager" system where each customer was assigned to a manager within WUK. The Key Account Manager requested that all orders be placed through WUK. In practice AWSL had always ordered 95% of its spares requirements through WUK.
viii) WUK knew which of its customers had Wartsila 46 engines including AWSL.
ix) The local network service company (here WUK) sent any bulletins or service letters prepared by a Wartsila factory to its (WUK's) customers and all technical bulletins and service letters were also copied to WUK's service department for the attention of the WUK Service Superintendent and WUK's service engineers. Furthermore WUK issued directly technical information that was within the guidelines of the product factories. (WUK maintain that all design issues are matters for WFI alone).
x) Such bulletins and service letters commonly contained statements such as "for more details and for supply of packages please contact your local Wartsila Service Station" (ie in the present case WUK).
xi) The Operation & Maintenance Support section of the Wartsila 46 engine spare parts catalogue includes guidance notes on the "Structure and usage of the Spare Part Catalogue", it being stated, "About prospective modifications and changes in the specifications the customer will get the information through Spare part notices, Service letters and After Sales Information if needed".
xii) Between the beginning of 1998 and 5th August 2001, 14 technical documents were provided by WUK to AWSL consisting of 1 maintenance instruction, 6 service letters, 3 technical bulletins, 1 data and specification document, 1 operating instruction document and 2 spare parts notices. (These documents were, according to WUK all documents into which they had no input and which were produced entirely by WFI).
xiii) WDSL received, and would have sent to all applicable Wartsila 32 customers based in the UK, the Technical Bulletin dated 1st August 1995 (The 1995 Warning Bulletin) entitled, "Safety aspects on and maintenance of fuel supply system of VASA 32" (the Wartsila 32 Engine). WUK admits that from January 1997 it must be taken as having known matters set out in the 1995 Warning Bulletin, and specifically admits that it must be taken to have known that:
a) serious fuel leakage had occurred in the low pressure fuel supply system of Wartsila 32 engines and that a few such leakages had led to a fire;
b) experience of use of a copper washer with the erosion plugs on the fuel injection pumps used on Wartsila 32 engines indicated that it was preferable to use a steel washer;
c) the recommended tightening torque of erosion plugs was increased to 250 NM for L'Orange fuel injection pumps used on the Wartsila 32 engines.
(The existence of any link between a. b. and c. however is very much in issue).
xiv) WUK did not send the 1995 Warning Bulletin to AWSL.
xv) WUK received, and would have sent to all applicable Wartsila 32 customers based in the UK, the Technical Bulletin dated 17th August 1999 entitled, "Safety and Maintenance of the Fuel Supply System of Wartsila 32 Engines" (the 1999 Warning Bulletin) which contained similar information to the 1995 Warning Bulletin.
xvi) WUK did not send the 1999 Warning Bulletin to AWSL or otherwise warn AWSL, notwithstanding that a fuel pump fire occurred on a Wartsila 46 engine at a power plant in India in May 2001.
xvii) The increased torque setting of 350 NM for Wartsila 46 fuel pump erosion plugs (from 200 NM) was introduced in or before October 1995. Neither AWSL nor any Wartsila 46 engine owner was told of this increase in torque (or that a steel washer would need to be used). (WUK's case is that it did not know of this increase until after the fire on the Baltic Eider).
xviii) WUK is the distributor of OEM (original manufacture) spare parts to the customers for whom it is responsible including AWSL.
xix) WUK have supplied spare parts to AWSL, passed on technical documentation to AWSL and participated in servicing jobs for AWSL on the Baltic Eider from time to time.
xx) AWSL used WUK service engineers to attend the fire repairs as it had done at the time of the 1999 dry docking after AWSL complained as to the limited knowledge of the local Wartsila service engineer.
xxi) The value of parts purchased by AWSL from WUK is substantial. On orders between 1st January 1997 and 25th June 2002, AWSL paid WUK the sum of £1,396,442.96...
To continue reading
Request your trial
-
United Central Bakeries Limited V. Spooner Industries Limited+forbo Siegling (uk) Limited
...54, Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd [1997] 3 SCR 1210, and Andrew Weir Shipping Ltd v Wartsila (UK) Ltd [2004] EWHC 1284 (Comm). From those cases Mr Clark derived the following four propositions: (i) A supplier and manufacturer of a product each owe a duty of re......
-
United Central Bakeries Limited V. Spooner Industries Limited &c
...He referred to Vacwell Engineering Ltd v BDH Chemicals Ltd [1971] 1 QB 88 and Andrew Weir Shipping Ltd v Wartsila UK Ltd and Anr [2004] EWHC 1284 (Comm) in support of his contention that there was also a duty to warn of a danger. [27] This case did not raise questions of indeterminate liabi......