Starlight Shipping Company (Appellant/Claimant) v 1) Allianz Marine & Aviation Versicherungs AG and Others (Respondents/Defendants) Overseas Marine Enterprise Inc. (Third Party/Appellant)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Longmore,Lord Justice Rimer,Lord Toulson
Judgment Date18 July 2014
Neutral Citation[2014] EWCA Civ 1010
Docket NumberCase No: A3/2012/0368, A3/2012/0369, A3/2012/0370 & A3/2012/0801
Date18 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

[2011] EWHC 3381 (Comm)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

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

Between:
Starlight Shipping Company
Appellant/Claimant
and
1) Allianz Marine & Aviation Versicherungs AG
2) Royal & Sun Alliance Insurance
3) Assicurazioni Gererali Spa
4) Rembrandt Insurance Co Ltd
5) Brit UW Ltd (Sued on its own behalf and on behalf of all underwriting members of Lloyd's Syndicate 2987 for the 2006 Year of Account)
6) Nicholas Burkinshaw (Sued on his own behalf and on behalf of all underwriting members of Lloyd's Syndicate 2003 for the 2006 Year of Account)
7) Hiscox Dedicated Corporate Member Ltd (Sued on its own behalf and on behalf of all underwriting members of Lloyd's Syndicate 0033 for the 2006 Year of Account)
8) Hill Dickinson Llp
9) Hill Dickinson International
10) Michael Francis Mallin
11) Alexandra Julia Tytheridge
12) Maria Moisidou
13) Daniel McCarthy
14) Dave Vale
15) Mark Watters
16) Simon Langridge
17) William Graham Hensman
18) Keith Richard Potter
19) Stephen Bishop
20) Richard Chown
21) Simon Vincent Stonehouse
22) Marion Susan Fraser
23) Daniel Tony Dobisz
24) Ian James Henstridge
25) Brendan Allan Flood
26) Charles Taylor Adjusting Limited
27) Gordon Elliot
Respondents/Defendants

and

Overseas Marine Enterprise Inc
Third Party/Appellant
1) Brit UW Ltd (On its own behalf and on behalf of all underwriting members of Lloyd's Syndicate 2987 for the 2006 Year of Account
2) Nicholas Burkinshaw (On his own behalf of all underwriting members of Lloyd's Syndicate 2003 for the 2006 Year of Account)
3) Hiscox Dedicated Corporate Member Limited (On its own behalf of all underwriting members of Lloyd's Syndicate 0033 for the 2006 Year of Account
2011 Folio 702 Respondents/Claimants
and
1) Starlight Shipping Company
2) Overseas Marine Enterprises Inc
Appellants/Defendants
1) Brit UW Ltd (On its own behalf of all underwriting members of Lloyd's Syndicate 2987 for the 2006 Year of Account)
2) Nicholas Burkinshaw (On his own behalf and on behalf of all underwriting member of Lloyd's Syndicate 2003 for the 2006 Year of Account)
3) Hiscox Dedicated Corporate Member Limited (On its own behalf and on behalf of all underwriting members of Lloyd's Syndicate 0033 for the 2006 Year of Account)
2011 Folio 1043 Respondents/Claimants
and
1) Imperial Marine Co
2) Bristol Marine Co
3) Cyclone Maritime Co
4) Seagarden Shipping Inc
5) Wave Navigation Inc
"Alexandros T"
Appellants/Defendants

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

Lord Justice Longmore
1

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.

2

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".

3

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."

4

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."

5

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").

6

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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