EUPillar Delta Lloyd Schadeverzekering NV dn others v Erik Pauwels - 2012/AR/137

Summary

On 22 October 2010, Mr. Erik PAUWELS sued over 10 different insurance companies for damages in the amount of 59,060.50 EUR plus legal interest. The first group, of 9 insurers, insured the inland waterway vessel “Aviso” in 2008, the second group of 4 insurers took over in 2009, and the last group of 5 companies were the insurers at the time the damage occurred. On 15 February 2010, Mr. Pauwels noticed his ship was damaged. Since the exact time of the cause of the damage is in dispute, Mr. Pauwels sued all subsequent insurers. The first judge found he had jurisdiction to take cognizance of the dispute. The case was then adjourned and sent to the cause list until the case would be ready for trial. The third group of insurers then lodged an appeal against this judgment. The Court decides the appeal against an interim judgment limited to the question of international jurisdiction, is admissible. In principle, an insurer domiciled in a Member State may be sued in another Member State than where he is domiciled, in the case of actions brought by the insured, in the courts for the place where the plaintiff is domiciled (cf. Art. 9(1)(b) Brussels I). The appellants maintain, however, that that provision may be departed from by an agreement which relates to a contract of insurance insofar as it covers one or more “large risks” (see Art. 13(5) in conjunction with Art. 14(5) Brussels I). The Antwerp Court of Appeal agrees that it is undisputed that the insurance contract in question covers such a large risk. The appellants invoke Art. 19 of the “Nederlandse Beurs Casco Polis 2006” (“NBCP 2006”), this is a uniform insurance policy for inland waterway vessels. Art. 19 provides that its insurance is governed by Dutch law and that all disputes resulting from the policy are conferred to the jurisdiction of the courts of Rotterdam or Amsterdam. The appellants argue this choice of court clause is valid in accordance with the terms of Art. 23(1)(c) Brussels I Regulation. However, the Antwerp Court of Appeal considers it has not been established that Art. 19 is an agreement in a from which accords with an international trade usage of which the parties ought to have been aware, since the defendant entered into two other insurance policies with other insurers, also governed by the NBCP 2006, but which grant jurisdiction to the courts of Antwerp. Actually, the NBCP 2006 is not even applicable. The appellants alternatively rely on Art. 16(3) of the “SC 9908 Additional terms and conditions for inland navigation insurance” – these additional terms and conditions take precedence over the general terms and conditions of the NBCP 2006. Art. 16(3) confers exclusive jurisdiction on the courts of Rotterdam. The appellants are unable to show that the defendant was notified of and accepted these additional terms and conditions before the contract was made. The insurance policy was negotiated by the intermediary of an insurance broker. Therefore, the SC 9908 Additional terms and conditions, including the choice of court clause, do not satisfy the requirements of Art. 23 Brussels I Regulation. The Court then applies the general rules of the Brussels I Regulation, in particular 6(1), which provides for an additional forum in the case of co-defendants. By virtue of Art. 9(1)(c), this provision is also applicable to a number of co-insurers. The Antwerp Court of Appeal considers that the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Therefore, the Court has jurisdiction.