Evialis S.A. v S.I.A.T. and Others
| Jurisdiction | England & Wales |
| Judge | Andrew Smith J |
| Judgment Date | 16 April 2003 |
| Neutral Citation | [2003] EWHC 863 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 16 April 2003 |
[2003] EWHC 863 (Comm)
Queen's Bench Division (Commercial Court).
Andrew Smith J.
Stephen Morris QC (instructed by Holmes Hardingham Walser Johnston Winter) for the claimants.
Stephen Males QC and Michael Ashcroft (instructed by Clyde & Co) for the defendants.
The following cases were referred to in the judgment:
Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace)UNK [1995] 1 Ll Rep 87.
AIG Europe SA v QBE International Insurance Ltd [2001] CLC 1259.
Blue Nile Shipping Co Ltd v Iguana Shipping & Finance Inc (The Happy Fellow) [1997] CLC 1391.
Canada Trust Co v Stolzenberg (No. 2) [1998] CLC 23; [1998] 1 WLR 547 (CA); [2001] CLC 118; [2002] 1 AC 1 (HL).
Continental Bank NA v Aeakos Compania Naviera SAWLR [1994] 1 WLR 588.
Credit Suisse Financial Products v Societe General d'Enterprises [1997] CLC 168.
Denby v Hellenic Mediterranean Line Co LtdUNK [1994] 1 Ll Rep 320.
Estasis Salotti di Colzani Aimo e Gianmario Colzani v RUWA Polstereimaschinen GmbHECAS (Case 24/76) [1976] ECR 1831.
Fox v Taher [1997] IL Pr 441.
Glencore International AG v Metro Trading International Inc [2000] CLC 83.
Glencore International AG v Shell International Trading and Shipping Co Ltd [2000] CLC 104.
Grupo Torras SA v Al-SabahUNK [1995] 1 Ll Rep 374 (Mance J).
IP Metal Ltd v Ruote OZ SpAUNK [1993] 2 Ll Rep 60.
MacLeod Ross & Co Ltd v Cie d'Assurances Generales l'HelvetiaUNK [1952] 1 Ll Rep 12.
National Westminster Bank v Utrecht-America Finance CoUNK [2001] EWCA Civ 658, [2001] CLC 1372.
Navigation Maritime Bulgare v Rustal Trading Ltd (The Ivan Zagubanski)UNK [2002] 1 Ll Rep 106.
Overseas Union Insurance Ltd v New Hampshire Insurance CoECAS (Case C-351/89) [1991] ECR I-3317; [1992] QB 434.
Phoenix Insurance Co v De MonchyUNK (1929) 34 Ll L Rep 201.
Powell Duffryn plc v PetereitECAS (Case C-214/89) [1992] ECR I-1745.
Rouyer Guillet & Cie v Rouyer Guillet & Co LtdUNK [1949] 1 All ER 244.
Sabah Shipyard (Pakistan) Ltd v Islamic Republic of PakistanUNK [2002] EWCA Civ 1643.
Sarrio SA v Kuwait Investment AuthorityELR [1999] AC 32.
Tatry v Maciej RatajECAS (Case C-406/92) [1995] CLC 275; [1999] QB 515.
Toepfer International GmbH v Molino Boschi Srl [1996] CLC 738.
Toepfer International GmbH v Societe Cargill FranceUNK [1997] 2 Ll Rep 98; [1998] CLC 198; [1998] 1 WLR 379 (CA).
Tradigrain SA v SIAT SpAUNK [2002] EWHC 106 (Comm); [2002] CLC 574.
Turner v GrovitUNK [2001] UKHL 65, [2002] CLC 463; [2002] 1 WLR 107.
Insurance — Conflict of laws — Governing law — Anti-suit injunction — Stay of proceedings — Declarations of non-liability — Jurisdiction clause — Related actions — Brussels Regulation —“Quasi exclusive jurisdiction”— Open cover — Certificate of insurance — Reference in certificate to Institute Clauses — Cargo damage — GAFTA 100 — French company sought injunction to restrain Italian insurance companies from prosecuting Italian proceedings — Whether open cover contained Italian jurisdiction clause — Whether service clause in certificate was English jurisdiction clause — Whether English or Italian law applied — Whether proceedings involved same cause of action — Whether related actions — Whether court should stay proceedings — Whether court should grant injunction as a matter of discretion — Council Regulation 44/2001, art. 9, 12, 27, 28.
These were an application by a French company (“Evialis”) for an interim injunction restraining the defendant Italian insurance companies from prosecuting Italian proceedings, and from bringing any proceedings in relation to the dispute other than in England, and an application by the insurers for a determination that the English court has no jurisdiction to try the claim, or alternatively that the proceedings be stayed.
In May 2000 Evialis purchased on CIF terms a consignment of cotton pellets from an Italian Company (“ametra”). The contract between Ametra and Evialis incorporated the terms of GAFTA 100, which included a requirement that the sellers provide insurance and that, “the insurance to be effected with first class underwriters and/or companies who are domiciled or carrying on business in the United Kingdom or, who, for the purpose of any legal proceedings, accept a British domicile and provide an address for service of process in London…” The goods were shipped in September 2000 on board the vessel “Irene” for carriage from Abidjan to Rouen. Upon discharge at Rouen in October 2000, The goods were found to be damaged.
The goods were insured by the defendant italian insurers under an open cover originally issued to Ametra in December 1992. It provided cover in respect of cotton seed in bulk carried by sea, road or rail. A certificate was issued in respect of the cargo on the “Irene”. Both the open cover and the certificate were signed on the insurers' behalf by an insurance broker incorporated and carrying on business in Italy (“Finargo”). The open cover was written in Italian, on an Italian form and referred to Italian law. It included general conditions, special agreements (which took priority over the general conditions) and attached Institute Clauses. Copies (in English) of the Institute Clauses referred to in the special agreements were appended to the open cover, and all included a clause headed “law and practice” which provided that the insurance was subject to English law and practice. The certificate contained a typed provision in English giving an address for service of legal proceedings in the UK.
Evialis promptly informed the insurers of the cargo damage when it was discovered and also issued proceedings in the court at Rouen seeking appointment of a court expert to investigate it. Proceedings were brought in Rouen against the owners of the Irene in November 2000. The expert's report to the court was delivered in September 2001. Based on that report Evialis quantified its claim in the sum of FFr 2,278,530.26 and presented it to the insurers in October 2001. In June 2002 the insurers brought proceedings in Italy for declarations of non-liability relying on art. 16 of the general conditions to establish jurisdiction. Evialis challenged the jurisdiction of the Italian court. Evialis also commenced English proceedings seeking an indemnity under the insurance and claiming that the English and not the Italian court had jurisdiction because the contract of insurance contained an English jurisdiction clause, namely the service clause in the certificate. The insurers argued that the contract of insurance was governed by Italian law. Under s. 3 of Council Regulation 44/2001 (“the Brussels Regulation”), subject to any effective jurisdiction agreement, Evialis' claim for an indemnity under the contract of insurance could have been brought either in Italy (being the member state in which the insurers were domiciled) or in France (being the member state in which Evialis was domiciled): art. 9(1); and a claim by the underwriters against Evialis could have been brought only in France: art. 12(1). In the French proceedings Evialis recovered damages in the sum of E407,508.32 against the owners of the Irene. The proceedings in England and in Italy were about the costs of the proceedings and some costs in the French proceedings, amounting to some E45,000. The issue was what (if any) jurisdiction clauses were incorporated into the insurance contract.
Held, dismissing Evialis' application and staying the proceedings:
1. Given that Ametra and the insurers were parties to both the open cover and the certificate, the proper approach to identifying the contract of insurance was to consider both documents as potentially expressing the parties' intention as to the terms upon which the insurance was effected. In the absence of express words so providing, it was not proper to approach the question on the basis that the certificate was the only contractual document determining the terms of the insurance and to have regard to the terms of the open cover only to the extent that they had been incorporated into the certificate. In determining the terms of the insurance contract by interpreting the two documents, it was likely that the certificate would be given more weight, since, being directed to the specific risk, it was likely to prevail over more general terms.
2. The reference in the certificate to Institute Clauses did not express a choice by the parties that the contract of insurance should be governed by English law. The open cover itself was governed by Italian law, and so the choice of English law as the governing law of one particular cover declared under it and recorded in the certificate would, on the face of it, be rather surprising, particularly as the certificate was issued by Italian insurers through an Italian broker to an Italian assured. The law and practice provisions were not specifically referred to in the certificate. It might be that the effect of the provisions was that the interpretation of the Institute Clauses themselves was governed by English law and practice. It was unnecessary to decide that issue. In any event the reference to the Institute Clauses in the certificate did not evince the parties' intention to choose an English governing law for the contract of insurance as a whole, still less did it express or demonstrate a choice “with reasonable certainty”. The contract of insurance was governed by Italian law, and Evialis had not shown a good arguable case that it was not.
3. Evialis had a good arguable case that by the service clause in the certificate the parties agreed that the assured or holder of the certificate might sue the insurers in England. But the clause did not confer exclusive jurisdiction on the English courts and did not prevent the insurers seeking declarations of nonliability in Italy or France.
4. The issue in both the English and Italian proceedings was the insurers' liability in respect of the cargo damage and the proceedings involved the same cause of action under...
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