EUPillar Mora Shipping Inc of Monrovia v Axa Corporate Solutions [2005] EWHC 315 (Comm)

Summary

The claim was brought against the defendants - insurers. The claimant sought a recovery from the insurers. The dispute was whether the insurers were liable. The claimant was a company which was domiciled in Liberia and/or Norway. The defendants were domiciled in France, Belgium, the Netherlands and Switzerland, respectively. The defendants challenged the jurisdiction of the English courts. There was no jurisdiction under Article 2 because none of the defendants was domiciled in England. The claimant wanted to rely on Art 5(1)(a), submitting that England was the place of performance of the obligation for the defendants to pay contribution. The law governing the contract was important with a view to determining the place of performance of the obligation in question. The court noted that the English law must apply with a view to determining jurisdiction. It was held that the English court had no jurisdiction because there was nothing in the guarantee, requiring the defendants to pay to the claimant in London. In this context, Mr Justice Langley held: “15. It is agreed that the place of performance of the payment obligation is to be determined by the law governing the contract identified by the conflict of laws rules of this court and that, for the purposes of this application, the law governing the contract is or is to be treated as the same as English law. It is also agreed that if the obligation was required to be performed in more than one jurisdiction or could be performed in more than one jurisdiction then no single jurisdiction would be established on this basis: Case C-256/00 Besix v Kretzschmar [2002] ECR 1-1699 (ECJ) at 1724–7; Hanbridge Services Ltd v Aerospace Communications Ltd. [1993] I.L. Pr. 778 (Irish Supreme Court) at 784–5. […] 17. I do not find the contextual evidence of any real assistance in construing the Average Guarantee. In law an adjustment is not conclusive nor binding: Sameon Co S.A. v NV Petrofina, CA (unreported), 30 April 1997 . Whilst the guarantee plainly contemplates in the wording commencing: “We further agree”, that there will be an adjustment the obligation of insurers is to pay general average which is “legally due”. That obligation is to pay the shipowners “or” RHL. Those words are unqualified and, I think, unequivocal. I see no need to read into them any qualifications about election between one or other payee. It is for the claimant to establish, if there is to be jurisdiction in this court, that the obligation of insurers is to make payment to RHL in this jurisdiction. It is not, as expressed, and in my judgment that is conclusive against the claimants submission.” [15-17] The High Court judgment was confirmed by the Court of Appeal.