The London Steam-Ship Owners' Mutual Insurance Association Ltd v Trico Maritime (Pvt) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bright |
| Judgment Date | 23 April 2024 |
| Neutral Citation | [2024] EWHC 884 (Comm) |
| Court | King's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2023-000873 |
[2024] EWHC 884 (Comm)
Mr Justice Bright
Case No: CL-2023-000873
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, WC4A 1NL
Simon Rainey KC, Natalie Moore, Joseph Gourgey (instructed by Campbell Johnston Clark) for the Claimants
The Defendants did not appear and were not represented
Hearing dates: 12 April 2024
Approved Judgment
This judgment was handed down remotely at 10:00am on 23/04/2024 by circulation to the parties' representatives by e-mail and by release to the National Archives.
Introduction
This judgment follows the trial of this action, which was held on 12 April 2024. The Claimant (“the Club”) was represented by Mr Simon Rainey KC, Ms Natalie Moore and Mr Joseph Gourgey, instructed by Campbell Johnston Clark.
The proceedings arise out of the sinking of the container ship the X-Press Pearl (“the Vessel”) off Sri Lanka on 2 June 2021.
The Club is a London-based insurance company. It insured the Vessel and its owners (and various others) against Protection and Indemnity (“P&I”) risks, pursuant to a contract of indemnity insurance (“the Insurance Contract”).
The First Defendant is a Sri Lankan company. The Second to Fifth Defendants are Sri Lankan citizens. The Defendants are all parties who assert an interest in some of the cargo that was lost when the Vessel sank (collectively, “the Cargo Claimants”; individually, (1) “Trico”, (2) “Ms Senanayake”, (3) “Mr Prasanna”, (4) “Mr Tennakoon” and (5) “Ms Aluthwaththa”).
More directly, the proceedings arise out of legal proceedings commenced by each of the Cargo Claimants in Sri Lanka, in connection with their respective cargo claims. In the Sri Lankan proceedings, the First Defendant is represented by KP Law Associates, and the other Cargo Claimants are represented by Nirupama Rajapaksha.
In response, the Club commenced an arbitration claim in this jurisdiction, seeking a final antisuit injunction and declaratory relief from this court, in support (it was said) of its right to be sued only by a claim referred to arbitration in London, subject to the terms of the Insurance Contract.
The Cargo Claimants' decision not to engage with or take part in this action
The Defendants (“the Cargo Claimants”) did not appear and were not represented. This cannot be because they were not aware of (a) these proceedings or (b) the fact that the trial had been listed to take place on 12 April 2024.
(1) The Club's claim form in the proceedings before me, and its application notice seeking interim relief, were issued on 15 December 2023.
(2) KP Law Associates wrote to the Club's English solicitors on 9 January 2024 (confirmed by an email of 10 January 2024), in connection with limitation proceedings taking place in this jurisdiction. Nirupama Rajapaksha sent a similar email to the Club's English solicitors on 11 January 2024. In each case, the letters attached referred to instructions from the Cargo Claimants. These letters and emails therefore confirmed that KP Law Associates and Nirupama Rajapaksha were acting for the Cargo Claimants and were in communication with them.
(3) On 12 January 2024, the Club's English solicitors sent emails to KP Law Associates and to Nirupama Rajapaksha, informing them that a hearing was due to take place in this jurisdiction on 15 January 2024, seeking an interim antisuit injunction and permission to serve proceedings on the Cargo Claimants in Sri Lanka, via their Sri Lankan legal representatives.
(4) I made an order on 16 January 2024 permitting service out of the jurisdiction by courier and/or by email on the Defendant's Sri Lankan legal representatives. I did so in the light of the evidence that this would be effective at ensuring that the existence of the proceedings was brought to the Cargo Claimants' attention. I also granted the interim antisuit injunction sought by the Club, on terms that there should be a continuation hearing on 30 January 2024.
(5) Service in accordance with my order of 16 January 2024 was performed on that date, by emails sent to KP Law Associates and to Nirupama Rajapaksha, and a certificate of service was filed. The relevant documents were also sent by courier.
(6) The Club's continuation application, to be determined at the continuation hearing on 17 January 2024, was sent to KP Law Associates and to Nirupama Rajapaksha by email and sent by courier on 17 January 2024, and a certificate of service was filed.
(7) On 19 January 2024, a letter informing the Cargo Claimants as to the details of the continuation hearing and time by which skeleton arguments were to be filed was sent by email to KP Law Associates and to Nirupama Rajapaksha.
(8) On 23 January 2024, transcripts from the hearing on 15 and 16 January 2024 were sent to KP Law Associates and to Nirupama Rajapaksha by email and by courier.
(9) The Cargo Claimants did not appear at the continuation hearing on 30 January 2024. At that hearing, Henshaw, J made a continuation order providing (among other things) that the Cargo Claimants should not, until trial or further order take any steps against the Club in Sri Lanka.
(10) The Cargo Claimants did not acknowledge service within the time required by my order of 16 January 2024, as continued by Henshaw J on 30 January 2024.
(11) The Club applied for the trial of its claim for a final antisuit injunction, and for declaratory relief, to be expedited. Notice of the application was served by emails sent to KP Law Associates and to Nirupama Rajapaksha on 8 March 2024. None of the Cargo Claimants responded to the application. On 2 April 2024, Foxton J made an order that the trial take place on the first available date 7 days after the date of the order.
(12) On 2 April 2004, the Senior Listing Officer of the Commercial Court, Mr Michael Tame, sent an email to the parties, i.e. to the Club's English solicitor and to KP Law Associates and to Nirupama Rajapaksha, stating that the trial was to take place on 12 April 2024.
I can only conclude that the Cargo Claimants made a deliberate decision not to engage with these proceedings or take part in the trial.
The Cargo Claimants' proceedings in Sri Lanka
The Cargo Claimants have commenced proceedings in Sri Lanka against the Club and various other parties, seeking compensation for the loss of cargo as a result of the sinking of the Vessel.
The proceedings in question comprise: (1) Action in Personam No. CHC 01/2023 brought by the First Defendant; (2) Action in Personam No. 04/2023 brought by the Second Defendant; (3) Action in Personam No. 05/2023 brought by the Third Defendant; (4) Action in Personam No. 06/2023 brought by the Fourth Defendant; (5) Action in Personam No. 07/2023 brought by the Fifth Defendant.
Writs of Summons in Personam in the exercise of the Sri Lankan Court's admiralty jurisdiction were issued in respect of these five actions in May and June 2023.
In the Writs of Summons, the Defendants allege (among other things) that the Vessel breached “ the warranty of seaworthiness among other things and therefore is liable for the loss and damage to the cargo as bailees and/or carriers to the owners of the said cargo”. The Club and various other parties who are named as defendants in Sri Lanka (including the Vessel's registered owners and time charterer/operator) are said to be the relevant persons who are jointly and severally liable on the claim in an Action in Personam. The Club is said to be liable “ as the insurer”.
The basis on which the Cargo Claimants claim against the Club
In the trial before me, the Club called evidence from a Sri Lankan lawyer, Mr Goonetilleke, which can be summarised as follows:
(1) The actions which the Club seeks to restrain in Sri Lanka are claims for loss of or damage to goods carried in a ship which constitute maritime claims under Section 2(1)(g) of the (Sri Lankan) Admiralty Jurisdiction Act No.40 of 1983.
(2) The Cargo Claimants contend in their proceedings in Sri Lanka that all of the named defendants to those proceedings are jointly and severally liable and that the Club is liable as insurer.
(3) Sri Lankan law does not specifically provide for an independent or direct right of recovery against the insurers in respect of claims arising out of the incident involving the Vessel.
(4) The only specific right of direct action against an insurer is found in Section 106 of the Motor Traffic Act, but that is confined to motor accident claims and does not cover the claims that have been brought in Sri Lanka.
(5) In the absence of a specifically applicable local statute or common law on the matter, Mr Goonetilleke said that that “in determining whether the Club has any liability to the [Cargo Claimants] … the Sri Lankan court would look to the terms of the insurance policy between the Club and its assured” and that the Sri Lankan court “would have to apply English Law which would be the law governing and construing the application of the Club's Rules in covering the liability of the Club where the Court would necessarily have to take cognizance of the ‘pay to be paid’ clause in Rule 3.1. of the Club's Rules.”.
Thus, Mr Goonetilleke's evidence is that the Cargo Claimants' proceedings in Sri Lanka are, as regards the Club, not based on an independent or direct right of recovery against the Club under Sri Lankan law. They are based solely on the fact that the Club is the insurer, hence the assertion that the Club is liable “ as the insurer”.
The words “ as the insurer” are...
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