Starlight Shipping Company (Claimant/ First Respondent) v Allianz Marine and Aviation Versicherungs AG and Others (Defendants/Applicants) Overseas Marine Enterprises Inc. (Third Party/Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Flaux,The Honourable Mr Justice Flaux |
| Judgment Date | 26 September 2014 |
| Neutral Citation | [2014] EWHC 3068 (Comm) |
| Docket Number | Case Nos: 2006 FOLIO 815, 2011 FOLIOS 702, 894, 897 AND 1043 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 26 September 2014 |
and
The Honourable Mr Justice Flaux
Case Nos: 2006 FOLIO 815, 2011 FOLIOS 702, 894, 897 AND 1043
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
The Rolls Building
Fetter Lane
London EC4A 1NL
Mark Howard QC and Tony Singla (instructed by Clyde & Co LLP) for the 1 st to 4 th and 13 th to 20 th Defendants in 2006 Folio 815, the Claimants and Intended Claimants in 2011 Folio 894 and the Claimant and 2 nd Intended Claimant in 2011 Folio 897
Steven Gee QC and Tom Whitehead (instructed by Norton Rose Fulbright LLP) for the 5 th to 7 th and 21 st to 25 th Defendants in 2006 Folio 815 and the Claimants in 2011 Folios 702 and 1043
David Bailey QC and Jocelin Gale (instructed by Mayer Brown International LLP) for the 8 th to 12 th Claimants in 2006 Folio 815 and the 3 rd to 7 th Intended Claimants in 2011 Folio 897
Stephen Cogley QC and Christopher Jay (instructed by Bentleys, Stokes & Lowless LLP) for the 26 th and 27 th Defendants in 2006 Folio 815 and the 8 th and 9 th Intended Claimants in 2011 Folio 897
The Claimant and Third Party in 2006 Folio 815 and Defendants in 2011 Folios 702, 894, 897 and 1043 were not represented
Hearing date: 10 September 2014
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.
Introduction and background
The vessel ALEXANDROS T ("the vessel") was owned by Starlight Shipping Company ("Starlight"). The vessel's managers were Overseas Marine Enterprises ("OME"). On 3 May 2006 she sank and was a total loss. 26 of the 33 crew died. Amongst the survivors was the bosun, Mr Aljess Miranda.
At the time of her loss, the vessel was insured under two policies of marine insurance, a vessel policy and a fleet policy. The vessels insured under the fleet policy included vessels owned by the five companies who are defendants in the actions 2011 Folio 894 and 1043 ("the co-assureds"). Those vessels were also managed by OME. Both policies expressly provided that they were subject to English law and the exclusive jurisdiction of the English courts. The insurers under the policies were both the companies market (the first to fourth defendants in 2006 Folio 815 or "the CMI") and the Lloyd's market (the fifth to seventh defendants in that action or "the LMI"). The vessel was also insured under a policy with Hellenic Hull Mutual Association PLC (the claimant in 2011 Folio 897 or "Hellenic"). That policy was also governed by English law but contained a London arbitration clause. Where it is not necessary to distinguish between the CMI, the LMI and the Hellenic, I will refer to them compendiously as "the insurers".
Following the loss, Starlight commenced proceedings in the Commercial Court (2006 Folio 815) against the CMI and the LMI claiming an indemnity under the vessel and fleet policies. An arbitration was also commenced by the Hellenic, seeking a declaration of non-liability under their policy. In both the proceedings and the arbitration, Starlight were represented by Ince & Co and all the insurers by Hill Taylor Dickinson (subsequently Hill Dickinson LLP). In the defence in the action, the CMI and the LMI made allegations that the vessel was unseaworthy, that Starlight and OME were privy to that unseaworthiness, which was causative of the loss and that Starlight and OME had in place an illegal practice, whereby they refused to notify Class and the vessel's flag state authority of defects in the vessel. The CMI and the LMI also sought to avoid the policies for material non-disclosure. Evidence in support of those allegations was obtained from a number of factual witnesses including Mr Miranda.
In inter-solicitor correspondence in July 2006, Ince & Co alleged that the insurers had been spreading "malicious scuttlebutt" about the assured and that there had been serious misconduct by one of the underwriters and, in correspondence in October 2006, Ince & Co alleged that the insurers were "behaving in a reckless and irresponsible fashion in making an allegation when they have no evidence to substantiate what they allege". It was alleged that a Mr Bernardo had offered bribes to survivors, including Mr Miranda, to give false evidence.
At a pre-trial review before Tomlinson J (as he then was) on 14 December 2007, Starlight sought permission to amend the Particulars of Claim to claim damages for late payment of the indemnity quantified by reference to alleged loss of profits which it was said would have been earned had the indemnity been paid and an alternative vessel purchased. Further information and specific disclosure were also sought by Starlight relating, inter alia, to payments made by the insurers to witnesses including Mr Miranda.
The application for permission to amend was refused by Tomlinson J, principally on the ground that the proposed amendment was bound to fail as a matter of English law because of the decision of the Court of Appeal in Sprung v Royal Insurance (UK) Ltd [1999] Lloyd's Rep I.R. 111. The applications for specific disclosure and further information were adjourned to the trial, which was listed to be heard in January 2008.
By a settlement agreement dated 13 December 2007, scheduled to a Tomlin Order dated 20 December 2007, Starlight and OME's claims against the LMI were settled on these terms:
"SETTLEMENT AGREEMENT
BETWEEN
THE ASSURED
OVERSEAS MARINE ENTERPRISES INC and STARLIGHT SHIPPING COMPANY as Managers and/or Owners and/or Associated and/or Affiliated Companies for their respective right and interest in the ship "Alexandros T"
AND
INTERESTED UNDERWRITERS
AT LLOYDS (the Underwriters)
LLOYDS HULL & MACHINERY UNDERWRITERS subscribing to [the] Policy…
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 [the] Policy… against the Underwriters signing below in relation to the loss of "Alexandros T", including all claims for interest and costs (including in respect of all cost orders made to date in the proceedings) but without effect to any other insurance policy in which each Underwriter may be involved.
4. The Assured and Claimant agree to indemnify the Underwriters signing below...
To continue reading
Request your trial
-
Maxter Catheters Sas and Another v Medicina Ltd
...at the time of the hearing for the application for the stay and, if they are, ask which court was first seised; see Starlight Shipping v Allianz Marine & Aviation [2014] Bus L R 873 at paragraphs 75–76 per Lord 27 As at the time of the hearing of the Defendant's application for a stay t......
-
Argos Pereira España SL and another v Athenian Marine Ltd (THE “FRIO DOLPHIN”)
...Ltd [2006] EWCA Civ 658; [2007] Ch 71. Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG (The Alexandros T) [2014] EWHC 3068 (Comm); [2014] 2 CLC 503. Swynson Ltd v Lowick Rose LLP [2017] UKSC 32; [2017] 1 CLC 764; [2018] AC 313. Team Y&R Holdings Hong Kong Ltd v Gh......
-
London Steam-Ship Owners' Mutual Insurance Association Ltd v Kingdom of Spain (THE “PRESTIGE”) (NO 3)
...position under the Brussels I Regulation. In Starlight Shipping Co. v. Allianz Marine and Aviation Versicherungs (The “Alexandros T”)[2014] EWHC 3068 (Comm), Flaux J had to consider proceedings brought in another EU Member State (Greece) in breach of a settlement agreement. He considered ob......
-
Chudley & Others v Clydesdale Bank Plc (Trading as Yorkshire Bank)
...in The Laemthong Glory (No. 2) [2005] EWCA Civ 519; [2005] 1 Lloyd's Rep 688 and my decision at first instance in The Alexandros T [2014] EWHC 3068 (Comm); [2014] 2 Lloyd's Rep 579, on which the appellants relied. The judge said at [180] that in the light of those authorities two questions ......
-
Complex Commercial Litigation Law Review – England and Wales
...heralded no doubt by a very clear judgment.75 Beswick v. Beswick [1968] AC 58.76 Starlight Shipping Co v. Allianz Marine and others [2014] EWHC 3068 (Comm).© 2020 Law Business Research Ltd335Appendix 1ABOUT THE AUTHORSOLIVER BROWNELatham & WatkinsOliver Browne is a partner in the London off......
-
Complex Commercial Litigation Law Review - Fifth Edition - England & Wales
...heralded no doubt by a very clear judgment.79 Beswick v. Beswick [1968] AC 58.80 Starlight Shipping Co v. Allianz Marine and others [2014] EWHC 3068 (Comm).© 2022 Law Business Research 195OLIVER BROWNELatham & WatkinsOliver Browne is a partner in the London oce of Latham & Watkins. He is c......