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||Neutral Citation Number:  EWHC 2919 (Comm)
||Case No: 2004/474
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||15 December 2004
B e f o r e :
MR. JUSTICE COOKE
|| The Standard Steamship Owners' Protection and Indemnity Association (Bermuda) Limited
||- and -
||G. I. E Vision Bail and others
Robert Bright (instructed by Richards Butler) for the Claimant
Stephen Kenny (instructed by Clyde & Co.) for the Fifteenth Defendant, Silver Waves Shops Limited
Hearing dates: 3rd, 8th and 9th December 2004
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr. Justice Cooke:
- Between April 2002 and July 2003 the fifteenth Defendant (now known as Silver Waves Shops Limited, but then called Louis Duty Free Shops Limited: hereinafter "LDFS") held the duty free, logo and gift shop concessions on five cruise ships owned and/or operated by companies in the Festival Group (Festival). LDFS needed employers' liability cover in respect of its employees who would staff the shops on the ships and, as part of the negotiation of a Retail Concession Agreement with Festival, Festival ultimately agreed to obtain insurance cover for LDFS on Festival's P & I cover with the Claimant (the Club).
- The process for agreeing the inclusion of LDFS on the Club's cover was essentially left to Festival and its brokers P. L. Ferrari (Ferrari). The Club maintains that what was agreed between Ferrari and the Club's managers (Charles Taylor) on 8th/9th May 2002 was that LDFS would be insured as a "Joint Entrant" on the Festival covers with the Club. It is accepted for the purposes of the current application that there is a triable issue as to whether LDFS is bound by an Agreement concluded by Ferrari and Charles Taylor that it should be insured as a Joint Entrant, on the basis that there is a triable issue as to the actual authority of Festival and Ferrari to bind LDFS in respect of P & I cover.
- The Club's rules provide for English jurisdiction by rule 32.1 which reads as follows: -
"Disputes and differences
The Member hereby submits to the jurisdiction of the High Court of Justice of England in respect of any action brought by the Club to recover any sums which the Club may consider to be due to it from a Member. Without prejudice to the foregoing the Club shall be entitled to commence and maintain any action to recover any sums which the Club may consider to be due to it from a Member in any jurisdiction."
- The Club claims that LDFS is liable to it in respect of premiums and calls for the 2002/2003 and 2003/2004 Club years in respect of ships entered with the Club by Festival. Since LDFS is a Cypriot company, service of the claim form was effected on it in Cyprus. The claim form contained a certificate stating that the English Court had power under Council Regulation (EC) number 44/2001 of 22nd December 2000 ("the Jurisdiction Regulation"), because LDFS was a party to an agreement conferring jurisdiction to which Article 23 of that Regulation applied.
- Following service, LDFS issued an application seeking a declaration that the Court had no jurisdiction over it or alternatively that the Court should not exercise jurisdiction over it and that service of the claim form upon it should be set aside.
- A number of distinct arguments were raised by LDFS in support of its application and its primary position that it had not entered into an Agreement, let alone one enforceable under the Jurisdiction Regulation, that the English Court should have jurisdiction over it in relation to the disputes between it and the Club. The first of these arguments was an issue of construction of the Club Rules. The further matters for determination arise in the context of arguments as to the applicability and requirements of Articles 23 and 12- 14 of the Jurisdiction Regulation.
The Club Rules
- The relevant parts of the Rules read as follows: -
"Applicant means any person seeking to enter a ship on his own or another's behalf or on whose behalf an application is made.
Entered Ship means a ship which has been entered in the Club for any of the risks enumerated herein in the manner provided under these Rules.
Entered Tonnage means the tonnage on the basis of which a ship is entered for insurance in the Club; and Entered Ton refers to the unit of such tonnage.
Member means every owner or other person who becomes and is for the time being a Member of the Club and more particularly of the Protection and Indemnity Class of the Club as hereinafter provided and as provided in the Bye-Laws.
Owner includes an owner, owners in partnership, owners holding separate shares in severalty, a part owner, and a trustee, mortgagee, charterer, operator or manager, builder, insurer or reinsurer who enters a chip in the Club or who is a Principal Assured, Joint Entrant or a Co-assured.
2.1 These Rules, which are subject to the Act and the Bye-Laws, contain the terms upon which the Protection and Indemnity Class of the Club conducts its business. The Protection and Indemnity insurance given by the Club shall be in accordance with these Rules.
2.2 These Rules and any contract of insurance between the Club and a Member or any other person claiming under these Rules shall be governed by and construed in accordance with English Law. In particular they are subject to and incorporate the provisions of the Marine Insurance Act, 1906, of the United Kingdom and any statutory modifications thereof except insofar as such Act or modification may have been excluded by these Rules or by any term of such contract.
4.1 The Managers may in their discretion, and without giving any reason, refuse any application for the entry of a ship in the Club whether or not the applicant is already a Member of the Club.
4.2 Each person whose entry has been accepted under the Rules agrees with the Club for himself, his heirs, executors, administrators, assigns and successors that both he and they and each and all of them are bound by and will observe and perform the obligations under these Rules. Each such person shall furnish the Club with an address for the service of notices. In the case of a Member the address shall be deemed to be the address appearing in the Register of Members.
4.3 The Managers shall be at liberty to accept entries from those not already Members. If an application is accepted such person shall become a Member unless the Managers in their discretion decide that he is not to be a Member. Whenever the Managers accept an entry by way of reinsurance, they may in their discretion decide that the insurer reinsured by the Club or person insured by such an insurer or both shall become a Member or that neither of them shall become a Member and the Managers may accept the application on either such basis.
4.4 Where a person whose entry has been accepted under the Rules has not become a Member of the Club, he shall have the same rights and obligations under these Rules (but not under the Bye-Laws) as though he were a Member, and all such rights and obligations shall apply to him.
Application for entry
6.1 Every applicant shall apply for an entry in such manner and form as the Managers may from time to time require.
6.3 An applicant warrants on his own behalf and on behalf of any other person entitled under these Rules that he has furnished all material particulars and information and that all such particulars and information are, so far as he knew or could with reasonable diligence ascertain, true and complete, and will remain so throughout the period of insurance. The particulars and information so furnished shall, if the entry of the relevant ship be accepted, be deemed to form the basis of the contract of insurance between the Member or applicant and the Club.
6.4 Before any application for entry is accepted by the Managers, the Managers shall agree in writing the terms and conditions that will apply to the entry if the application is accepted, including (without prejudice to the generality of the foregoing) the contribution to be paid to the Club, the commencement of cover, and the terms and conditions on which the ship is to be accepted.
Certificates of entry
7.1 As soon as reasonably practicable after the acceptance of an application for entry of a ship for insurance in the Club, the Managers shall issue to the Member in respect of such a ship a Certificate of Entry in such form as they may from time to time determine but so that such Certificate of Entry shall state the date of the commencement of the period of insurance and the terms and conditions (other than the sums payable to the Club) on which the vessel has been accepted for insurance.
8.1.1 The Managers may accept an application from a Member for another person or persons to become a Joint Entrant in respect of that Member's entry. In such a case, the Managers may agree that none, one or more such persons may become Members of the Club. Each Joint Entrant shall have an independent right of recovery from the Club in respect of any liabilities, costs or expenses arising out of a particular casualty or event.
8.1.2 In the event that the application is accepted by the Managers, the Member who has made the application shall be designated the Principal Assured and shall be the person who is deemed irrevocably to have full power and authority to act in the name of and/or on behalf of all the Joint Entrants, and neither the Club nor the Managers, their servants or agents, shall be liable in any other manner whatsoever to any Joint Entrant in the event that the Member did not, in fact, have such power and authority.
8.1.3 Unless otherwise agreed in writing with the Managers, the Member and all Joint Entrants shall be jointly and severally liable to pay all amounts due to the Club in respect of such entry.
8.1.5 In relation to any such application from a Member for any person or persons to become a Joint Entrant the Member and each Joint Entrant warrants that the Joint Entrant is, in relation to the entered ship, either: -
(i) interested in the operation, management or manning of an insured ship; or
(ii) the holding company or the beneficial owner of the person identified in the Certificate of Entry as the Principal Assured or of any person interested in the operation, management or manning of the entered ship; or
(iii) a mortgagee of the entered ship: or
(iv) the charterer of the entered ship.
PROVIDED ALWAYS THAT in relation to Rules 8.1 and/or 8.2:
(i) The receipt by the Member or any one Joint Entrant or Co-assured of any sums paid by the Club in respect of such an entry shall be sufficient discharge by the Club for the same;
8.3.1 The managers may accept any entry on the basis that the ship is part of a Group Rating Agreement and assess contributions accordingly.
8.3.2 One person shall be designated Group Principal and any communication from or on behalf of the Club to the Group Principal shall be deemed to be within the knowledge of all members, Joint Entrants and Co-assureds in the Group, and any communication from and action taken by the Group Principal shall be deemed conclusively to be made with the full approval of any and all Members, Joint Entrants and Co-assureds within that Group.
16.2.2 Any limits on the cover provided by the Club and set out in a Member's Certificate of Entry or these Rules shall apply in the aggregate to the Member, and all Joint Entrants, Co-assureds, affiliated or associated companies or other persons, as if the ship had been entered by the Member only."
Principles of construction
- I was referred to the decision of Rix LJ in Ocarini Marine Limited v Marcard Stein  2 Lloyd's Rep. 524 and in particular to the passage at page 529 where he said this in relation to a contract governed by English Law as the Club Rules are in the present case: -
"I approach the construction of these clauses applying English canons of construction, as I am required to do. ……. In applying canons of English construction to the relevant clauses, I think I am entitled to bear in mind, and I do, that the formal requirements of art. 17 of the Convention have been interpreted to mean that consent has to be clearly and precisely shown, and that any jurisdiction agreed for the purpose of art. 17 may be a derogation from the general rule contained in art. 2. In the case of genuine ambiguity or uncertainty as to the correct construction of such a jurisdiction clause I therefore consider that the English Court should resolve such ambiguity or uncertainty in favour of a construction which leaves the underlying jurisdiction required by art. 2 untouched."
- This is the approach which I adopt in relation to the Club Rules, looking in particular at Rule 32 in the context of the other Rules.
Construction of the Rules
- In essence, LDFS maintained that Rule 32.1 could only be construed as a jurisdiction agreement to which the Member agreed and that this had no application to a Joint Entrant. The first sentence of Rule 32.1 expressly referred to the Member as the person submitting to the jurisdiction of the English Court whilst the second sentence had to be read in the light of the first. The first sentence provided for the submission to the jurisdiction of the English Court by the Member whist the second sentence gave the Club a liberty to pursue claims against the Member in other jurisdictions. That second sentence referred to "any action to recover any sums which the Club may consider to be due to it from a Member" which must, in the context, refer to claims against the Member in respect of sums due from it as opposed to claims against anyone else in respect of sums due from a Member (whether or not due also from that other person). Mr. Stephen Kenny went on to argue for LDFS that Joint Entrants were not Members of the Club and that the Club Rules constantly drew a distinction between Members on the one hand and Joint Entrants on the other. A third category was that of Co-assured to which the Rules also referred. Against this background therefore, Rule 32 had no application whatsoever to anyone other than Members. Thus, if LDFS was, as alleged, a Joint Entrant, there was no jurisdiction agreement within the meaning of Article 23 of the Jurisdiction Regulation, simply as a matter of construction of the Club Rules.
- The Club maintained that a Joint Entrant did become a Member, as a person whose application for entry was accepted under Rules 4.2 and 4.3. Alternatively, even if a Joint Entrant did not become a Member, by the terms of Rule 4.4, as "a person whose entry has been accepted under the Rules" the Joint Entrant was liable as if he were a Member with all the obligations set out in the Rules applying. On either basis the terms of Rule 32 were directly applicable to a Joint Entrant.
- Rule 4 is a general Rule dealing with entries whereas Rule 8 specifically deals with Joint Entrants as their subject matters shows, though the headings are not to be used in interpreting the Rules. Nonetheless the two Rules are related and the two have to be read in the light of one another and the rest of the Rules.
- Ships are entered in the Club by "applicants" who may or may not be "Members" and who may or may not become Members as Rules 4.1 and 4.3 reveal. When dealing with entries generally, the norm is that an applicant becomes a Member under Rule 4.3 unless the Managers decide otherwise.
- "Applicants" as defined, include not only the person making the application but those on whose behalf the application is made. Applications are made in such manner and form as the Club's Managers from time to time require (Rule 6.1). Information supplied in the application is warranted to be true and is the basis of the contract of insurance.
- Joint entries are possible on the application of a Member under Rule 8.1. Such an application is expressly made "for" the potential Joint Entrant to become a Joint Entrant (Rule 8.1.1, rule 8.1.5) and if successful, the Member becomes the Principal Assured who acts on behalf of all Joint Entrants (Rule 8.1.2). The application constitutes a warranty by the Member and the potential Joint Entrant that, in relation to the entered ship, the Joint Entrant is interested in the operation, management or manning of that ship or has some other relationship falling within Rule 8.1.5.
- There is in my judgment no doubt that it is not only the owner of a ship who can be an applicant for entry of a ship in the Club and who may thereupon become a Member under Rule 4.3, but also those on whose behalf such an application is made, as the definition of "applicant" shows. Moreover "owners", as defined, includes not only actual owners, charterers operators or managers who enter the ship, but also those who are Principal Assureds, Joint Entrants or Co-assureds. Since the warranty is given as to the interest of the Joint Entrant in the operation, management or running of the entered ship, any Joint Entrant is warranted to fall into this category.
- Whilst it is correct that the Rules draw a clear distinction between "Members", "Joint Entrants" and "Co-assureds" as sub paragraphs i – vi of the proviso to Rules 8.1 and 8.2 makes clear (as do other provisions), Rule 16.2.2 shows that the cover limits apply in the aggregate to these categories together (with associated companies etc) "as if the ship had been entered by the Member only". The inference is that a ship can be entered for others as well as Members, but the words used elsewhere in the Rules in relation to Joint Entrants and Group Entries show that it is these categories to which these words in Rule 16 refer, as opposed to Co-assureds, affiliated companies and others.
- The words "Joint Entrants" and the terms of Rules 16.2.2 and 8.1.2 cast light upon the wording of Rule 8.1.1. That Rule refers to an "application from a Member for another person to become a Joint Entrant in respect of that Member's entry" and provides that none, one or more of such persons can become Members. In my judgment it is plain that a Joint Entrant, just as much as a Member, is someone whose "entry of a ship" in the Club can be accepted under Rule 4.2 and 4.3, notwithstanding the reference to "that Members entry" in Rule 8.1.1. The Member may have already entered the ship as his entry, but the "Joint Entrant" is so described because he becomes an additional insured in respect of an entered ship so that it is entered for him as well as the Member. Thus he also is, under the terms of Rule 8.1.3, to be liable for that entry. The Member makes the application for the potential Joint Entrant who then becomes a Joint Entrant, if accepted, with that Member, in respect of the entry of that ship. It is truly a joint entry. The very words "Joint Entrants" import the entering of a ship by that person as well as the Member. The Joint Entrant can then either become a Member or not under the terms of Rule 8.1.1 which are directly applicable. If there is a variation in the terms of entry as a result of a Member's application for another to be a Joint Entrant, an endorsement is to be issued which shows the terms of such variation and the date from which it is to be effective. A Joint Entrant who is included in cover in this way, then becomes someone who has entered the ship jointly with the Member from that point onwards and is "a person whose entry has been accepted under the Rules".
- Rule 4.3 is a general Rule applicable to entries which provides that an entrant becomes a Member unless the Managers in their discretion otherwise decide but Rule 8.1.1 is the specific Rule dealing with joint entries and requires a decision by the Managers as to whether or not the Joint Entrant is to be a Member. The Rule distinguishes between Joint Entrants on the one hand and Co Assureds on the other and makes provision for Group Rating Agreements, where the entry is specifically accepted on that basis. Whereas Co-assureds do not join in the entry, Joint Entrants do.
- Here it is plain that the decision was made by the Club that LDFS should not be a Member but should remain in the category of Joint Entrant. The terms of the Certificates show that the Club registered Festival as the only "Member" and registered LDFS as a "Joint Entrant". The Certificates also show that Festival were the Principal Assured and the Group Principal under the Group Rating Agreement with whom all communications could be made on behalf of the Joint Entrants (Rule 8.3.2). The Certificates were then sent to Festival in accordance with Rules 7.1, 7.2 and 8.1.2.
- In such circumstances, if LDFS is a Joint Entrant accepted as such, but not as a Member, it is nonetheless bound by the Rules in accordance with Rule 4.2 and/or Rule 4.4, as "a person whose entry has been accepted under the Rules". It therefore matters not that LDFS as a Joint Entrant is not a Member and is not treated as such. The Joint Entrant is not only liable under Rule 8.1.3 but, being bound by the Rules by virtue of Rules 4.2 and/or 4.4, it is equally bound by the terms of Rule 32 just as if it was a Member.
- It follows therefore that although Rule 32.1 refers to the Member submitting to the jurisdiction of the English Court in respect of any action brought by the Club to recover any sums which the Club may consider to be due to it from a Member, the terms of that Rule apply with equal force to LDFS as a person whose entry has been accepted under the Rules as a "Joint Entrant", as though it were a Member. Rule 4.4 therefore concludes the matter against LDFS as a matter of construction of the Rules which is an unsurprising result given that the underlying intention of the jurisdiction clause must have been to provide for a common jurisdiction in respect of claims against all of those who might be responsible to the Club for premium.
Article 23 of the Jurisdiction Regulation
- "Article 23
1. If the parties, one or more of who is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to "writing"."
- The Club contends that it can rely upon Article 23.1(a), (b) and (c). It contends that the agreement to jurisdiction is evidenced in writing by exchanges between Ferrari, acting as agents for Festival and LDFS on the one hand, and Charles Taylor, acting as agents for the Club on the other, where it is accepted that there are triable issues on the question of actual authority. Those exchanges referred to endorsements and Certificates of Entry which in turn referred to the Club Rules which contained Rule 32. The Club also says that the jurisdiction agreement was in a form which accorded with the practice established between Charles Taylor and Ferrari and in a form which accords with a usage in international trade or commerce of which Ferrari and Festival were aware and, if necessary, it contends that this was a practice of which LDFS were or ought to have been aware. The practice of a mutual ship owner's insurance company issuing Certificates, Endorsements and Rules which govern the terms of cover and include a jurisdiction clause is, in the Club's submission, widely known and regularly observed and it is well-known that all the major Clubs have English jurisdiction clauses in relation to the cover they provide.
- LDFS draws attention to the decision in Prifti v Musini  Lloyd's Rep. IR 528 at 533 (paragraph 14) as showing that the staring point for Article 23 is not the "formal requirements" set out in subparagraphs (a), (b) and (c) but: -
"The decision of the European Court in Salotti v RUWA Polstereimaschinen GmbH  ECR 1831 in which it was said that "Article 17 [of the Brussels Convention] imposes on the Court before which the matter is brought the duty of examining, first, whether the clause was conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated."
- The formal requirements identified in subparagraphs (a), (b) and (c) are designed to ensure and to help the Court to be satisfied that consensus between the parties is in fact established but it is said that consensus, rather than compliance with those requirements remains the touchstone. Compliance with one of the formal requirements is a necessary but, in LDFS' submission, not a sufficient condition for a jurisdiction agreement to be effective for the purposes of Article 23. There must be evidence of a "meeting of the minds" or actual genuine consensus where consensus is a reality and not something which is deemed. Because Article 23 involves derogation from the ordinary principles of jurisdiction set out in Articles 2, 5 and 6 of the Jurisdiction Regulation, the formal requirements will be strictly construed and, as established in a series of European Court authorities, the fact of consensus must be clearly and precisely shown.
- For the purpose of the decision which I have to make, LDFS again referred to the decision of Andrew Smith J in Prifti v Musini and what he there described as "the flexible test of good arguable case". For the purposes of the determination I have to make, I am prepared to accept, without deciding, that where there are issues of fact between the parties, which will not be the subject of determination at trial, but fall for decision now in the Court's decision whether or not to exercise jurisdiction, it is for the Club to show that it is highly likely to succeed on the balance of probabilities in establishing a jurisdiction agreement which complies with the requirements of Article 23. (See Evialis v SIAT  EWHC 863,  Lloyd's Rep. 377 at paragraphs 70-71 and the decision in Glencore International AG v Metro Trading International Inc.  2 Lloyd's Rep. 632 at page 642).
The exchanges between the parties
- As part of the arrangements under negotiation between Festival and LDFS, the latter required insurance cover in respect of its employees on board Festival's ships. Independent employers' liability cover for LDFS appeared uneconomic so Festival approached Ferrari with a view to adding LDFS to Festivals' cover with the Club. Charles Taylor had previously, on 20th March 2002 sent Ferrari Certificates of Entry in respect of Festival's entries from 20th February 2002 of various vessels including the Bolero, Azur, Flamenco, Mistral and European Vision. Those Certificates made reference to the Club Bye-laws and Rules as governing the terms of the covers.
- A draft of the Retail Concession Agreement was sent by Festival to Ferrari on 17th April 2002. The insurance and security clause was essentially deleted and wording appeared which said: "draft text pending decision from Club and Hull U/W". One of the extant paragraphs stated that it was vital for the successful conclusion of the agreement that Festival arranged for LDFS to be named as co-assured on its P & I cover without LDFS being liable to pay premiums and requested that the clause be adjusted to reflect that.
- On 17th April also, Ferrari e-mailed Festival with the terms upon which it was prepared to add LDFS as a Co-Assured to Festival's cover, including payment of premium at US$2,000 per person per annum or pro rata. Notes on Ferrari's copy of that e-mail indicate that a Ferrari representative held telephone conversations with Charles Taylor on 18th April and with Festival thereafter in which two options were spelt out, namely insurance for LDFS on a co-assured basis with payment of premium or alternatively cover for LDFS as a Joint Assured without additional premium but with no waiver of liability for premiums as a Joint Assured. By an e-mail of 19th April, Ferrari confirmed with Charles Taylor, following their telephone conversation that they had advised Festival of the two options and were awaiting Festival's response as to the course that they wished to adopt.
- It is common ground that a telephone conversation took place on 19th April between Mr. Burdett of Ferrari and Ms. Christou of LDFS in the absence of M. Bakas of Festival, who was out of the office. There was a dispute as to the terms of this conversation but the background material lends some credence to the Club's case that Mr. Burdett informed Ms. Christou of the options and that she told him that LDFS had decided to chose the second option, namely that it be named as Joint Assured without additional premium but with joint responsibility with Festival for the premium payable in accordance with the Club Rules. The Club's case is reinforced by an e-mail of 19th April from Ms. Christou to Mr. Burdett in which she referred to that telephone conversation and "your verbal confirmation that the Club has accepted LDFS as Joint Assured on the Festival cover". The e-mail then gave details of the nationalities of the employees on the "European Stars" and indicated that information would be given about the crew on the other five vessels as soon as they were known. Ms. Christou signed herself off as a member of the Chartering, Insurance & Legal Department. There are 2 sets of manuscript notes on Ferrari's copy of that email, apparently made by Mr Burdett, which appear to record the fact that Ms Christou also had a telephone conversation with Ms Bakas on an unspecified date – a conversation to which the Club's solicitor makes reference as one in which the two options were explained to Ms Christou- with wording which states " she has already advised that can be done".
- Also on 19th April, however, Ms. Christou's superior sent a fax from Louis Cruise Lines Chartering Insurance & Legal Department to Festival with "our final proposal for the insurance arrangements for the duty free concessions on board Festival vessels". This referred to an agreement already reached with Festival's P & I Brokers that LDFS were to be added as Joint Assured on the P&I cover of Festival, "without being liable for any premiums (to be arranged commercially between Festival Cruises and LDFS and noted by the P & I Club)". LDFS contends that this is inconsistent with any agreement of the kind suggested by the Club, since if there had been such agreement, there would have been no further negotiation and none requiring the Club to note that LDFS were not to be liable for premium.
- LDFS accepts that there was a conversation between Ms. Christou and Mr. Burdett on 19th April but it is said that she did not have authority herself to agree to the insurance of LDFS as a Joint Entrant and would not have understood the distinction between Joint Entrants and Co-Assured under the Rules even if the terms had been mentioned to her, which they were not.
- Once Ms. Bakas of Festival was back in the office on 22nd April, she requested that all communications concerning insurance be directed to her and that there be no direct contact between Ferrari and LDFS. Thereafter on 1st May Festival e-mailed Ferrari stating that Festival had agreed to name LDFS as Joint Assured on their P&I policy for the Azur, Flamenco, Mistral, European Vision and European Stars. The e-mail continued: -
"Louis understands that the Club will not waive their responsibility for the premiums, despite any commercial arrangements which may have been agreed between Festival and Louis" (with regard to responsibility for those premiums).
Ferrari then forwarded that e-mail to Charles Taylor on May 2nd as Festival's instructions but adding the words: -
"We need to name Louis Duty Free as Joint in all the Festival entries which please confirm you are doing."
- Details were then provided by LDFS to Festival and by Festival to Ferrari of the nationalities of the employees on board European Vision, Flamenco and Azur with the comments that details for the European Stars had already been provided, whilst a breakdown would be sent for a further two vessels shortly thereafter. Also on 8th May Ferrari sent that message on to Charles Taylor and asked the latter to "kindly confirm cover for the relevant personnel by adding Louis Duty Free as Joint Assured in all Festival vessels entries".
- On 9th May Charles Taylor then sent an e-mail to Ferrari in the following terms: -
"Louis Duty Free Concessions – A/C Festival
Further to previous correspondence we can confirm we are amending the Certificates of Entry for the Festival Fleet (ex Bolero) to name Louis as a Joint Entrant as requested.
Endorsements to be issued in due course and we thank you for your kind assistance".
- At that date, there were in existence Certificates of Entry in respect of the vessels referred to in paragraph 28 of this judgment which referred expressly to cover "in accordance with the Bye-Laws and the Rules from time to time in force". Although there were delays and inaccuracies in draft endorsements and Certificates of Entry issued thereafter, each of the Certificates referred to Entry on the terms and conditions of the Certificate and in accordance with the Rules of the Club.
- On 9th May 2002 Ferrari confirmed to Festival that the Club had confirmed that they would by endorsement name LDFS as Joint Assureds, as requested, on the Festival Fleet vessels and cover their staff for death, injury and illness as if they were Festival's crew and as per the Club's Rules and subject to the vessels' terms of entry. The letter stated that Ferrari awaited the usual Joint Assured letter duly signed by LDFS. Notwithstanding that reference it is clear that the acceptance of cover of LDFS as a joint assured was unconditional and did not depend upon completion of a Joint Entrant letter.
- Much later, on 3rd February 2003, Ms. Bakas of Festival e-mailed Ferrari to say that she had been asked by LDFS to produce confirmation of the existence of LDFS cover by the Club as Joint Assureds on the P & I policy. She pointed out that on some Certificates LDFS were only named as Co-assureds and not on all the vessels. She asked for some documentation to confirm the position. Ferrari stated in reply that LDFS was named as Joint Assured in the Certificates of Entry for the European Stars and the European Vision and that it had asked the Club to issue endorsements for the remaining vessels, whilst asking for the usual Joint Entrant letter. By a fax of 11th February, Ferrari sent endorsements noting the addition of LDFS into the Joint Entrant clause of the P & I Certificates of Entry for the vessels Flamenco, Azur and European Stars as from April 18th 2002 but referring to those endorsements as being "in draft format" with official endorsements to be sent out upon receipt of the relevant Joint-entrant letter. As a p.s. to the fax, the author stated her assumption that the joint assurance was requested only for P & I and asked for confirmation. No reply appears in the documents before the Court.
- The Certificates in their final form were issued by the Club on various dates between May 2002 and June 2003, as set out on a schedule produced by Mr. Bright for the Club which is attached to this judgment. Separate Certificates were produced in relation to P & I cover and Defence cover, the contracts being separate and governed by different Rules, both of which included a jurisdiction clause in similar form. The European Star's Certificates for 2002/2003 referred to LDFS as Co-assured whilst the other Certificates in respect of other vessels referred to them as Joint Entrants. All those Certificates certified that the named ship was entered in the Club on the terms and conditions contained in the Certificate and in accordance with the Bye-Laws and the Rules of the Club, naming the Member and the Joint Entrants and the Co-assureds in their distinct categories. All those Certificates were sent by Charles Taylor to Ferrari but only one of those Certificates, the P & I Certificate of Entry for the European Vision dated 1st August 2002 was passed to LDFS. This occurred on 4th February 2003, when Festival referred to the Certificates for other vessels which had "unfortunately" been issued without naming Louis as a Joint Assured although it was said that the Club had confirmed that Louis was in fact so entered. A promise was made that endorsements would be forwarded as soon as possible.
- It is clear beyond any shadow of doubt that, whatever the exact formulation of the test, the Club has a "good arguable case" that Ferrari agreed that LDFS should be added as a Joint Entrant to the Festival P & I cover on the terms of the Club Rules. The request for confirmation of cover on 8th May and the response on 9th May from Charles Taylor which confirmed that Certificates of Entry were to be amended as appropriate and endorsements were to be issued, against the background of the Ferrari e-mail to Charles Taylor of 2nd May, constitutes an agreement in writing to this effect. By referring to the Certificates of Entry which themselves refer to the Club Rules in circumstances where there were existing Certificates and the contents of the Club Rules were well known to Ferrari, including the jurisdiction clause, the agreement to the jurisdiction clause was made in writing or at least was evidenced in writing for the purposes of Article 23. The actual consensus between Charles Taylor and Ferrari cannot be doubted, both being well aware of the Club Rules and jurisdiction clause so that not only is Article 23.1(a) satisfied but also consensus has been clearly and precisely demonstrated, if the position of Charles Taylor and Ferrari (both of whom were agents) is relevant.
- The decision of the European Court in Salotti (ibid) by reference to the second question set out at paragraphs 11 and 12 of the judgment shows that it is sufficient if the parties expressly refer in the contract to a prior document in writing in which reference is made to general conditions which include a clause conferring jurisdiction. That amounts to an express reference and not an "indirect" or "implied" reference to an earlier document and there is no question of any uncertainty which would vitiate reliance upon the jurisdiction clause. In paragraph 12 of the judgment the Court held that the jurisdiction clause would be valid in such circumstances if the express reference could be checked by a party exercising reasonable care and if the general conditions including the clause conferring jurisdiction were in fact communicated to the other contracting party. In the present case none of this can be doubted so far as Ferrari is concerned.
- So far as Article 23.1(b) and (c) are concerned, if insurance is considered a matter of international trade or commerce, the issuing by a Mutual Insurance Company of endorsements to Certificates and of Certificates of insurance which refer in terms to the Club Rules (which themselves contain the relevant jurisdiction clause) constitutes an agreement in a form which accords with a usage of which Ferrari were well aware and which is widely known and regularly observed by parties to contracts of mutual insurance with a Club. Although it was suggested in argument that liability cover was not a matter of international trade or commerce, it was accepted that shipping and other forms of insurance fell into this category so that bills of lading and other insurances might be covered by this subparagraph. (Article 23.1(c) developed out of the decision regarding bills of lading in the Tilly Russ  ECR 2417).
- In my judgment, insurance, including liability insurance in respect of maritime matters is a matter of international trade or commerce. It is so closely allied to the trading and shipping of goods that it is part and parcel of international trade and the price of goods is regularly expressed by reference to it – in terms such as "C & F" or "CIF". P & I insurance is so intimately connected with the carriage of goods and commerce that it forms part of it for the purposes of Article 23, whether or not there is urgency in concluding contracts, which LDFS suggested was the rationale for the subparagraph. Since the cover here is akin to crew cover and involved the joint entry of LDFS on a much wider form of cover for Festival, the usage in question is one which relates to Club covers as a whole and, in my judgment is undoubtedly one which is well recognised in international trade or commerce and is certainly one of which, on the evidence, Ferrari was well aware. Whilst there is no direct evidence of LDFS' actual knowledge, the Legal Insurance and Chartering Department of a Cruise Line operator must also be expected to be aware of such a practice.
- The agreement to the jurisdiction, as between Ferrari and Charles Taylor, falls within Article 23.1(b) inasmuch as the form of the agreement was constituted by the written exchanges between the parties including the e-mail and fax of the 8th and 9th May by reference to the endorsements and Certificates of Entry, and thereby to the Club Rules. There was little direct evidence on this, but I have no doubt that Ferrari and Charles Taylor deal with each other so regularly by way of correspondence in relation to Club entries, by reference to certificates which refer to the Club Rules, that this must be the case. To agree jurisdiction in this way on behalf of principals must, for Ferrari, be commonplace.
- Likewise the conclusion of the Agreement on jurisdiction in correspondence by reference to endorsements, Certificates and Club Rules is a format for reaching agreement in the context of P & I Insurance which is widely recognised and must have been known not only to Ferrari but to the senior personnel in the Louis Cruise Lines Insurance Department, even if not known to Ms. Christou, about whose knowledge on this point there is no direct evidence. I consider therefore that Article 23.1 (c) is satisfied inasmuch as Ferrari, Festival and LDFS itself were or ought to have been aware of the usage that jurisdiction agreements are to be found in Club Rules which govern Club P & I cover granted in correspondence by reference to Certificates or endorsements.
- LDFS maintained that the question of consensus had to be considered as between LDFS itself and the Club and not by reference to any dealings through its agents, although for these purposes it conceded that Ferrari and Festival were arguably its agents.
- LDFS' argument on this aspect of the dispute was based upon the many statements which appear in the European authorities to the effect that there must be precision and clarity in relation to the issue of consensus. The consensus must be real as the decisions demonstrate. It was said that the requirements of Article 23 must be strictly construed since the purpose of the Article is to ensure that the parties have "actually consented" to such a clause and where the authorities have referred to prior courses of dealing, they have done so by reference to the course of dealing between the parties concerned, not their agents. Equally, in the context of Article 23.1(c) the decision in Mains Schiffahrts-Genossenschaft v Les Gravieres Rhenanes  ECR 1-911 refers at paragraphs 16 and 24 to practices in the trade or commerce in question, of which the parties are or ought to have been aware, as well as to commercial or trade relations between themselves, without any reference to knowledge or dealings of agents. Stress was once again put upon the need for real consent and the presumption of consensus under Article 23.1(c) where the parties had the necessary knowledge or constructive knowledge.
- In I P Metal v Ruote  2 Lloyd's Rep. 560 at 566, Saville LJ stated that "the question of consensus is simply a question as to whether or not the parties concerned truly consented or agreed to a special jurisdiction clause to govern any disputes between them".
- I was referred also to the decision of the European Court in Trasporti Castelletti v Hugo Trumpy SpA  ECR 1-1597 and in particular to paragraphs 49-51 of the judgment where the Court held that the validity of a jurisdiction clause could be assessed only in the light of considerations connected with the requirements laid down by the relevant Article. Any further review of the validity of the Clause and of the intention of the party which inserted it had to be excluded and substantive rules of liability applicable in the chosen Court were not to affect the validity of the clause. From this, it was initially argued that there could be no enquiry into the scope of an agent's authority under local law in deciding whether or not there had been any agreement or consensus on the part of the principal, through the agent to the jurisdiction clause.
- On this basis LDFS said that, for Article 23 purposes, a claimant would have to show consensus on the part of the defendant himself to the jurisdiction clause and not on the part of any agent whom he had instructed. The whole point of Article 23 was to impose formal requirements that only made sense as "guarantees" of consensus if the relevant consensus was that of the parties themselves.
- None of the authorities cited to me contain any discussion of the position of agents in this context. Agency or its equivalent is a concept known in many jurisdictions although the national rules in relation to it vary. Where parties deal regularly through agents, it is hard to see how the agency can simply be ignored. LDFS was disposed to accept that if a principal specifically authorised its agent to agree to English jurisdiction or to agree to any jurisdiction the agent wished, this would be effective to show consensus on the part of the principal. It would not however be sufficient in LDFS' submission, for the principal simply to give the agent general authority to enter into a contract without making specific reference to jurisdiction and in such circumstances any jurisdiction clause to which the agent agreed would not bind the principal.
- The effect of LDFS' argument is to negate the concept of agency, at least in a large number of situations and thus to override principles of national law in relation to it. The whole basis of agency in English law and elsewhere is that, if the agent has actual or ostensible authority to conclude a contract on behalf of the principal, then the principal is bound. As a matter of principle and logic, if the agent specially agrees a jurisdiction clause, and it is within his actual or ostensible authority to do so, that ought to bind the principal. The agent stands in the shoes of the principal. If this was not recognised, a person dealing with a fully authorised agent would still have to enquire behind the agency, to ensure that there was a specific agreement by the principal to the jurisdiction clause. I consider that this cannot be right.
- Moreover, I do not consider that paragraphs 49 – 51 of the Trasporti decision requires a different result. Those paragraphs are not aimed at questions of agency but at the application of substantive rules of liability relating to agreement by an individual to a jurisdiction clause, which are not to be taken into account, as compared with the requirements of the Convention or the Jurisdiction Regulation, as it now is. These paragraphs were not, in my judgment, in any way intended to derogate from the application of principles of agency in establishing consensus, where the agent could bind the principal as a matter of national law. In such circumstances it must be the agent's consensus that is relevant. In The Tilly Russ, the Main Schiffahrts decision and some of the insurance authorities cited to me, the business was plainly transacted between one or more agent for the parties. At no point however does this seem to have given rise to argument, although on the facts it may not have made any difference. Insurance and reinsurance and shipping almost invariably involve the use of agents in agreeing to contracts in standard form which regularly include jurisdiction clauses. If the agent has appropriate authority to bind the principal, the principal has put the agent in the position where the agent's consensus is that of the principal and no further enquiry beyond the agent's consensus is therefore required.
- Provided therefore that there is actual authority or ostensible authority on the part of the agent, the issue is whether or not the requirements of Article 23 are satisfied, as between the agent and the third party. For the reasons already given, I am satisfied that they are, as between Charles Taylor (acting for the Club) and Ferrari (acting for Festival and LDFS).
- There is evidence as set out earlier in this judgment that Ms. Christou on 19th April 2002 agreed with Mr. Burdett of Ferrari that LDFS should become a Joint Assured, jointly liable for premium with Festival, rather than becoming a Co-assured for which no additional premium was required. Whilst a finding as to what was said will depend upon oral evidence as to the conversation, there is documentation which supports the Club's case as to the terms of the conversation. It is in my judgment highly likely that the Club will succeed in showing that direct authority was given to Ferrari by LDFS to conclude insurance with the Club on the basis that LDFS was to be a Joint Entrant. It is also highly likely that a factual inquiry will show that Festival was given full authority on the part of LDFS to conclude insurances through Ferrari with the Club on that basis and otherwise on such terms as Festival considered appropriate since, as between Festival and LDFS, it was Festival who would pay the premium under what was to become the Retail Concession Agreement.
- With the high likelihood of a finding of actual agency, on the part of Festival and Ferrari for LDFS, it is also highly likely that, on any factual inquiry, a court would conclude on the balance of probabilities that the requirements of Article 23.1 were satisfied. On any view of the criterion therefore, in my judgment, the Club have established a good arguable case as to the applicability of Article 23 in respect of the insurances concluded by Ferrari with Charles Taylor where LDFS was named as Joint Entrant.
Articles 12 – 14 of the Jurisdiction Regulation
- Article 12
1. Without prejudice to Article 11(3), an insurer may bring proceedings only in the courts of the Member State in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary.
The provisions of this Section may be departed from only by an agreement:
2. which allows the policyholder, the insured or a beneficiary to bring proceedings in courts other than those indicated in this section, or
5. which relates to a contract of insurance insofar as it covers one or more of the risks set out in Article 14.
The following are the risks referred to in Article 13(5):
1. any loss of or damage to:
(a) seagoing ships, installations situated offshore or on the high seas, or aircraft, arising from perils which relate to their use for commercial purposes;
(b) goods in transit other than passengers' baggage where the transit consists of or includes carriage by such ships or aircraft;
2. any liability, other than for bodily injury to passengers or loss of or damage to their baggage:
(a) arising out of the use or operation of ships, installations or aircraft as referred to in point 1(a) insofar as, in respect of the latter, the law of the Member State in which such aircraft are registered does not prohibit agreements on jurisdiction regarding insurance of such risks;
(b) for loss or damage caused by goods in transit as described in point 1(b);
3. any financial loss connected with the use or operation of ships, installations or aircraft as referred to in point 1(a), in particular loss of freight or charter-hire;
4. any risk or interest connected with any of those referred to in points 1 to 3."
- Under the Jurisdiction Regulation, an insurer is obliged to bring proceedings in the insured's state of domicile unless an effective agreement conferring jurisdiction on the Courts of another Member State, of a type permitted by Article 13 has been concluded. The only type of jurisdiction agreement permitted by Article 13 which is potentially applicable here is that set out in Article 13.5 namely an agreement "which relates to a contract to insurance insofar as it covers one or more of the risks set out in Article 14". There is no doubt that the cover taken out by Festival was cover for types of risks which fall within Article 14 but it is said that, in the case of LDFS, its insurance cover was protection in respect of its potential liabilities arising from employment of staff to man its duty free and gift shops, as the Club well knew. These are said to be ordinary employers' liability risks and therefore not to fall within Article 14 at all.
- It follows from my earlier finding that LDFS were Joint Entrants and from the terms of the Certificates and the Club Rules, that LDFS was insured on the same terms as Festival. Although it may not have required cover in respect of other risks, the insurance was a joint insurance in respect of a multiplicity of risks, the vast majority of which fell within Article 14. Where, as in Charman v WOC  2 Lloyd's Rep. 551, the insured is someone of sufficient economic power to be in the class of people who obtain cover which falls within Article 14, it does not matter if there are some elements of the cover which do not fall exactly within the terms of that Article but which are in some way connected with the subject matter of Marine Insurance. In this case it is said that LDFS is not in the same class of persons as Festival and because the underlying policy of the Article is one of social protection, the wording of the Article should not be construed widely.
- LDFS is a Cypriot company but it is part of the Louis Cruise Line Group which, on the material available to the Court, both owns and manages ships. At the current date it appears to own and/or manage ten such ships. In April 2002, whilst not owning as many ships as this, it was undoubtedly in business as an owner or manager of cruise ships, owning some five ships and managing two others. It was the chartering, insurance and legal department of Louis Cruise Lines that appears to have dealt with the insurance issue for LDFS. Whilst therefore LDFS is not a ship owner, it is not right to see it as a vulnerable company without negotiating leverage which requires extensive protection by the Courts in the context of acceptance of a jurisdiction agreement.
- The cover actually obtained by LDFS, which it required in respect of its shop personnel is that given under Rule 20.1.1 and/or 20.2, 20.4, 20.5, 20.6, 20.7 and 20.8. For this purpose the shop personnel must fall to be treated as seamen which, as defined in the Club Rules includes any person engaged or employed in any capacity in connection with the business of any entered ship as part of the ship's complement, including supernumeraries. The risks covered included liability for death, injury or illness of such persons under Rule 20.1.1 or 20.2, liability for such matters arising from collision or arising out of the carriage of cargo, repatriation, crew substitute expenses, loss of effects and shipwreck unemployment indemnity. In my judgment the liability cover is in respect of liability arising out of the use or operation of ships or risks of financial loss connected with such use or operation, even though LDFS did not itself operate the ship. The types of risks covered were specifically maritime risks and it was for this purpose that LDFS required the cover, as opposed to its ordinary land based risks. Risk of financial loss arising in these matters is connected with the use and operation of ships and therefore falls within Article 14.3 or Article 14.4.
- Moreover, the covers sought and obtained were joint covers for Festival and LDFS (amongst many others). The cover given to LDFS cannot be seen in isolation – it was a combined cover where the totality of risks covered were plainly those which fell within Article 14. The fact that one or more of the Joint Entrants only actually needed a small part of the cover cannot affect the nature of the jurisdiction agreement in respect of the entirety of the risks for which indemnity was given to many parties.
- In my judgment therefore, the liabilities for which LDFS specifically sought cover, quite apart from the wide risks covered by the Joint Entry with Festival, were liabilities arising out of the use or operation of ships or related to financial loss connected with the use or operation of ships or constituted risks or interests connected with these two classes of risk. In these circumstances a jurisdiction agreement in respect of LDFS' cover was one which was permissible under Articles 12 – 14, provided that the requirements of Article 23 were also satisfied, as I have found they were.
- LDFS contends that there is no triable issue in relation to the claim against it for Defence cover. Whatever may be the position with regard to P & I cover, the terms of the written exchanges between the parties show, in LDFS' submission that there never was any request for Defence cover. In the e-mail of 1st May 2002 from Festival to Ferrari referred to in paragraph 34 of this judgment, Festival expressly referred to the naming of LDFS on its P & I policy for the five ships there referred to. That e-mail was then forwarded by Festival by Charles Taylor on 2nd May with the superscription: -
"Here follows the self explanatory message from Festival with their instructions in respect of the above. ……. We need to name Louis Duty Free as Joint in all the Festival entries would you please confirm you are doing."
- The reference to "all the Festival entries" in the e-mail of May 2nd could not have conveyed a need for Defence cover since the instructions to which reference was made expressly referred to P&I cover. Nor could the exchanges on 8th and 9th May 2002 upon which the Club rely as constituting the contract change that position. A reference to "all Festival's vessels entries" in the e-mail of 8th May from Ferrari to Charles Taylor could objectively only be read in the light of the previous exchanges which refer specifically to the P&I policy. The confirmation from Charles Taylor that they were amending the Certificates of Entry "to name Louis as a Joint Entrant as requested" is not therefore capable of constituting an acceptance by the Club of LDFS for Defence cover. No request had been made for it so that no acceptance could be given.
- The Club also rely upon application forms completed by Festival or Ferrari which later sought P&I and Defence cover together and listed LDFS as a Joint Entrant. Such forms appear in the bundle in respect of the Caribe, the European Stars, and the European Vision. Of course, Festival needed such cover for itself and perhaps for other Joint Entrants listed, but such forms were not signed by LDFS and copies of the Certificates issued were never forwarded to them. Moreover, the application form itself at note five referred to the need for any Joint Entrant to confirm the requirement for cover by signing the application form where indicated. Whereas, in the context of P&I cover, there is material to support the Club's position that Festival and Ferrari were expressly authorised to obtain such cover, there is no suggestion on the evidence anywhere of any such authority in relation to Defence cover. In circumstance where there is no evidence of LDFS holding out Festival or Ferrari to Charles Taylor as its agent with authority to conclude Defence cover on its behalf, there is no basis for an argument of ostensible authority in relation to the application forms.
- It is noteworthy also that a fax of 11th February 2003 from Ferrari to Festival which enclosed draft endorsements showing the addition of LDFS into the Joint Entrant clause of the P & I Certificates referred to Ferrari's assumption that cover was only requested for P & I. In these circumstances, there is no basis for any allegation of ostensible or actual authority on the part of Festival or Ferrari to agree insurance for Defence risks: nor is there any evidence of agreement between Ferrari and Charles Taylor to the inclusion of LDFS for such risks in the exchanges up to 9th May 2002: nor do the application forms and Certificates change that position. There is therefore no case against LDFS in respect of Defence cover on the terms of the Club Rules, which include a jurisdiction clause in the same terms as that to be found in Rule 32 of the P & I Rules.
- LDFS' applications therefore fail, save in respect of the Defence cover issue and the 2001/2002 entries, the latter of which was conceded before the hearing. Issues relating to costs may arise however by virtue of the late evidence from the Club and this limited success and although my preliminary view is that the Club should have an order for costs in its favour on the standard basis, I await the submissions of the parties before making any decision on this or as to the proportion recoverable.
10 December 2004.
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