Starlight Shipping Company (Appellant/Claimant) v 1) Allianz Marine & Aviation Versicherungs AG and Others (Respondents/Defendants) Overseas Marine Enterprise Inc. (Third Party/Appellant)
Jurisdiction | England & Wales |
Judge | Lord Justice Longmore,Lord Justice Rimer,Lord Toulson |
Judgment Date | 18 July 2014 |
Neutral Citation | [2014] EWCA Civ 1010 |
Docket Number | Case No: A3/2012/0368, A3/2012/0369, A3/2012/0370 & A3/2012/0801 |
Court | Court of Appeal (Civil Division) |
Date | 18 July 2014 |
[2014] EWCA Civ 1010
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
THE HONOURABLE MR JUSTICE BURTON
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Rimer
and
The Right Honourable Lord Toulson
Case No: A3/2012/0368, A3/2012/0369, A3/2012/0370 & A3/2012/0801
and
The Appellants did not attend the hearing
Mr Mark Howard QC & Mr Tony Singla (instructed by Clyde & Co LLP) for the 1 st– 4 th Respondents
Mr Steven Gee QC & Mr Tom Whitehead (instructed by Norton Rose Fulbright LLP) for the 5 th– 7 th Respondents
Mr David Bailey QC & Mr Jocelin Gale (instructed by Mayer Brown International LLP) for the 8 th– 12 th Defendants
Hearing date: 1 st July 2014
This is the resumption of the appeal from Burton J in the Alexandros T [2012] 2 All ER (Comm) 608 granting summary judgment to the Company Market Insurers ("CMI") and the Lloyd's Market Insurers ("LMI") against the shipowners and associated companies (to whom I shall refer compendiously as "the owners") for declarations, damages and indemnities in respect of the owners' proceedings in Greece seeking damages from the insurers, despite proceedings for sums due under the relevant insurance policies being settled as long ago as December 2007 and January 2008. The owners' application to stay the proceedings failed before Burton J but, on appeal, this court stayed the English proceedings pursuant to Article 27 of Council Regulation 44/2001 (EC) and expressed no view about the correctness or otherwise of Burton J's decision to grant summary judgment. The Supreme Court lifted that stay and we accordingly proceed to decide the rest of the owners' appeal.
The underlying facts (including the nature of the Greek proceedings) are set out in paras 1–16 of my judgment reported at [2013] 1 All ER (Comm) 1297 supplemented, as necessary, by paras 1–20 of the judgment of Lord Clarke of Stone-Cum-Ebony JSC reported at [2014] 1 All ER (Comm) 337 and need not be repeated. But for ease of comprehension I will repeat the terms of the respective settlement agreements. In each of the agreements "the Assured" were defined as being "[OME] and Starlight … as Managers and/or Owners and/or Associated and/or Affiliated Companies for their respective rights and interests in the ship Alexandros T".
The CMI settlement agreement then provided:-
"1. Each Underwriter agrees to pay on or before 18 th January 2008 … their due proportions of the sum of US$16m … being 100% of their due proportions of the sum insured being 50% of the US$32m … without interest or costs.
2. The Assured and claimant agree to accept the EURO equivalent of each Underwriter's due proportion of US$16m … in full and final settlement of all and any claims it may have under Policy No 302/CF000220Z against the Underwriters in relation to the loss of "Alexandros T", including all claims for interest and costs (including in respect of all costs orders made to date in the proceedings) but without effect to any other insurance policy in which each Underwriter may be involved.
3. The Assured and claimant agree to Indemnify each Underwriter against any claim that might be brought against it by any of the Assured's or the claimant's associated companies or organisations or by any mortgagee in relation to the loss of "Alexandros T" or under Policy No 302/CF000220Z. …
4. Following the signing of this agreement, and in consideration of the promises herein, the claimant and the Underwriters will apply to stay the proceedings as against the Underwriters, the proceedings to be stayed for all purposes save for the purposes [of] carrying the terms agreed herein into effect, such stay to have effect from the first obtainable date after 27 th December 2007.
5. Following the due and proper payment by the Underwriters of the amount specified in paragraph 1 above, the Assured and claimant and the Underwriters agree to file a consent order dismissing the proceedings, with no order as to costs.
6. This agreement is subject to English law and to the exclusive jurisdiction of the High Court in London."
The LMI settlement agreement provided in similar but not identical terms:-
"2. The underwriters … agree to pay on or before 24 th December 2007 … the sum of US$8m … being 100% of their due proportions of the sum insured being 25% of US$32m … without interest or costs …
3. The Assured and claimant agree to accept the EURO equivalent of US$8m … in full and final settlement of all and any claims it may have under Policy No … against the Underwriters signing below in relation to the loss of "Alexandros T"…
4. The Assured and claimant agree to indemnify the underwriters signing below against any claim that might be brought against them by any of the Assured's or the claimant's associated companies or organisations or by any mortgagee in relation to the loss of "Alexandros T" or under Policy No …
5. This agreement is subject to English law and the jurisdiction of the High Court of London."
The current position is that some submissions were made on the matters that remain in issue when the appeal was last before us. The owners have elected not to appear on the present occasion but to rely on their previous submissions together with certain matters raised in correspondence. CMI and LMI have both appeared by counsel and made oral submissions as have the 8 th–12 th defendants (to whom I refer as "the HD defendants").
As it seems to me, the following issues remain for determination:-
1) Whether the claims in the Greek proceedings fall within the settlement and the indemnity provisions of the Settlement Agreements;
2) Whether the claims in the Greek proceedings fall within Clause 6 (the exclusive...
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