JUDGMENT
Mr. Justice RIX:
This is an application under O. 12, r. 8 on the part of the defendants,
The H. M. L. Co. Ltd., to dismiss, stay or adjourn these proceedings in
favour of proceedings which have been commenced in Greece by them
against the plaintiffs in these proceedings, L.'s underwriters. The Greek
proceedings commenced with a Greek writ dated June 4, 1993 which
was served in translation on the special prosecutor in Athens on June
24, although service upon the various underwriters in England is still in
process and not yet completed. Indeed, the first of the underwriters to be
served in England was only so served on Aug. 11. The English writ was
issued and served on the defendants' London agents on Aug. 6.
A question has arisen for the purposes of arts. 21 and 22 of the Brussels
Convention as to which of the two Courts in Greece and in England was
the Court first seized. There has been evidence on Greek procedure on
affidavit by Mr. Sioufas on behalf of the defendants and by Mr. Nicolaidis
on behalf of the plaintiffs. Suffice it to say that there is a dispute as to
whether the Greek Court became seized for the purposes of the test
under the Convention on June, 24 when the Greek writ was served on
the special prosecutor or only as and when each of the defendants to the
Greek action is served. It is common ground between the parties that that
is a dispute which I cannot determine on affidavit.
The essential matter argued before me is as to art. 17 of the Brussels
Convention. Article 17, as amended upon the accession of Greece, Spain
and Portugal, provides as follows:
If the Parties, one or more of whom is domiciled in a Contracting State,
have agreed that a court or the courts of a Contracting 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 exclusive jurisdiction.
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 a 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.
The matter in issue between the parties, which I should have mentioned,
is this. The defendants took out insurance at L.'s against cancellations
on ferries which they operate between Greece and Italy, or within Greek
waters. A dispute has arisen under that insurance in the form of a claim
made by the defendants for approximately three quarters of a million
dollars, arising out of cancellations or alleged cancellations, and a defence
by the underwriters, inter alia, on the basis that they are entitled to
avoid the insurance on the ground of misrepresentation. In the Greek
proceedings the defendants claim under the insurance in respect of those
cancellations, and in these proceedings the underwriters, in the name of
Mr. D., claim a declaration that they are entitled to avoid the insurance
and that they are not liable.
Now, this insurance, in respect of which no policy has yet been issued, is
to be found in a contract contained in a slip dated Feb. 13, 1991 drawn up
by the defendants' insurance brokers in London, Hogg Insurance Brokers,
and stamped and initialled by each of the underwriting syndicates
involved for their respective shares. I need only refer to one provision
on the slip for present purposes, and that is that the contract form upon
which the insurance is made is the well known MAR form which, about
10 years ago, replaced the earlier SG form. The MAR form of L.'s marine
policy contains upon its first page a jurisdiction clause to this effect:
This insurance is subject to English jurisdiction.
The question has therefore arisen for the purpose of these proceedings
whether that is a jurisdiction clause which, under art. 17 of the
Convention, amounts to an agreement for exclusive jurisdiction in England
between the parties.
Mr. Jacobs for the plaintiffs says that that clause does amount to such
an exclusive jurisdiction agreement and that art. 17 takes precedence
over arts. 21 and 22 of the Convention. He prays in aid to support the
latter of those submissions the obiter dicta of Mr. Justice Saville in The
Filiatra Legacy (unreported) and in Rank Film Distributors Ltd. v. Lanterna
Editrice S.R.L. (also unreported), and also the reported judgment of Mr.
Justice Hirst in Kloeckner & Co. A.C. v. Gatoil Overseas Inc. [1990] 1
Lloyd's Rep. 177 at pp. 193-196.
Mrs. Green for the defendants, on the other hand, submits that arts. 21
and 22 are always paramount even in cases of exclusive jurisdiction,
relying upon the common ground that the purpose of arts. 21 and 22 is
to avoid duplicate litigation in two Convention countries. She also submits
that the evidence of an exclusive jurisdiction clause in this case is not
incontrovertible and that the proper procedure is that this Court should
adjourn these proceedings for a decision by the Greek Court on both the
question which Court is first seized, which will then be considered by the
proper Court for that purpose, and also, as parasitic to that, whether for
the purposes of art. 17 (and, she says, Greek procedural law) the parties
have agreed on exclusive jurisdiction in England.
Now, it seems to me that on the question whether art. 17 takes
precedence over arts. 21 and 22, I should be guided by not only the
obiter dicta of Mr. Justice Saville but also, as I understand it, the decision
by Mr. Justice Hirst in the Kloeckner case. In the course of a full review
of the relevant arguments upon that question in that case Mr. Justice
Hirst also took account of the fact that in his work, Civil Jurisdiction and
Enforcement of Judgments 1982, Mr. Peter Kaye at pp. 1221-1223 of
that work had concluded that, although art. 21 is subject to exclusive
jurisdiction under art. 16, it is not so subject to exclusive jurisdiction
under art. 17, the difference being that under art. 16 of the Convention
there are certain situations in which, as a matter of law, the Convention
gives exclusive jurisdiction to one particular jurisdiction, whereas under
art. 17 exclusive jurisdiction is a matter of contract between the parties.
Mrs. Green relies upon that conclusion in Mr. Kaye's work.
Nevertheless, it seems to me that Mr. Justice Hirst had the benefit of the
fullest possible argument on this question and he concluded that art.
17 takes precedence over arts. 21 and 22 in all situations, including a
situation where the question of there being exclusive jurisdiction under
art. 17 is itself in issue. I propose to follow the lead of those dicta and
that decision in this case, for what seem to me to be good reasons
expressed in them.
The final question then is whether in this case there is indeed a case of
exclusive jurisdiction under art. 17. Mr. Jacobs relies on sub-arts. (a) and
(c) for this purpose. It seems to me that there is in this case, without
doubt, an agreement conferring jurisdiction in England in writing or
evidenced in writing. The essential question for these purposes is whether
both parties have truly consented to that jurisdiction clause. One can see
that that is the test in a number of European Court of Justice decisions, in
particular Estatsis Salotti di Colzano Aimo E Gianmario Colzani v. RUWA
Polstereinaschinen G.M.B.H., [1976] E.C.R. 1831, and Partenreederei
MS Tilly Russ v. Haven & Vervoebedrijf Nova N.V., [1985] Q.B. 931. It
seems to me that where the defendants' own brokers put forward a slip
incorporating the well known MAR form and that slip is then signed by
the underwriters, there is clearly an agreement in writing or evidenced in
writing for such a jurisdiction clause. In any event, the MAR form is well
known in international trade or commerce in the insurance of maritime
and allied risks. The defendants are themselves shipowners and in their
writ in Greece they have themselves, or their lawyers on their behalf have
themselves, in referring to the slip in this case, described the position in
these terms:
... we sent a relevant fax to the [Greek] broker... and he on the turn
instructed the London insurance brokers "Hog Insurance Brokers Ltd." The
last according to their usual practice contacted L.s of London to whom
they presented in accordance with the well established practice, the well
known slip (a document which includes a summary of the terms of the
insurance cover) which is signed by every insurer who agrees with it...
I myself do not think that there is any real controversy or doubt about
the position under art. 17 but, even if there were, it seems to me that
following the Kloeckner v. Gatoil decision, I should hold that art. 17 takes
precedence over art. 21.
In this connection Mrs. Green also relied upon some evidence from
her clients' Greek lawyer, Mr. Sioufas, to the effect that under Greek
procedural law the position may be dif-ferent because of a rule under the
Greek Code of Civil Procedure that for an incorporation to be effective
in Greek law the incorporation must not only be clear, express and not
vague, but the document containing the relevant jurisdiction clause
must be attached to the contract. However, it has been decided by the
European Court of Justice that art. 17 is a self-contained code for deciding
whether the parties have or have not agreed upon a jurisdiction clause
for the purpose of that article:see Elefanten Schuh v. Jacqmain, [1981]
E.C.R. 1671, in particular the judgment of the Court at pp. 1687-1688.
Therefore it seems to me that Greek procedural law has no bearing upon
this question.
I would only add that in the most recent of the cases from the European
Court of Justice on art. 21, Overseas Union Insurance Ltd. v. New
Hampshire Insurance Co., [1992] 1 Lloyd's Rep. 204; [1992] Q.B. 434,
the question was considered and left open whether art. 21 was subject
to the exclusive jurisdiction provisions of the Convention found in arts.
16 and 17 (at p. 459C/D), and at p. 453 of the report one finds that
in the opinion of Mr. Advocate General van Gerven the suggestion is
made, at par. 13 of the opinion, which would be consistent with the views
expressed by Mr. Justice Saville and Mr. Justice Hirst in this jurisdiction,
that the question of whether there is exclusive jurisdiction provision under
art. 17 is different from a question that might arise under art. 21. For
instance, at p. 453E where the Advocate General says:
Where there is exclusive jurisdiction the second court examines solely the
question of its own (exclusive) jurisdiction.
For all those reasons, it seems to me that this application should fail. I
therefore hold that under art. 17 of the Convention, there is exclusive
jurisdiction in these Courts for the claim brought here by the plaintiffs on
behalf of the underwriters, and it is common ground between the parties
that the claim in these Courts is the same claim between the same parties
as arises in Greece.