Lloyd's Maritime and Commercial Law Quarterly


The Front Comor

The unscheduled voyage of The Front Comor 1 from Syracuse to Luxembourg is at an end, amply justifying the advice that it is better to travel hopefully than to arrive. West Tankers Inc2 was the owner of the offending vessel, which was chartered to Erg SpA, on terms which provided for English law and London arbitration. While negotiating the port of Syracuse, Sicily, the vessel collided with a jetty owned by Erg, doing massive damage. Erg claimed on its insurance with RAS;3 but, in order to recover its uninsured losses, it also commenced an arbitration against West Tankers, in London: so far, so good. In the meantime, RAS had been subrogated to the rights of its insured against the tortfeasor. It therefore summoned West Tankers before the court in Syracuse, the court for the place of the harmful event and which would have jurisdiction under Art 5(3) of the Brussels I Regulation.4 Several months later5 West Tankers, taking the view that the right to which RAS had been subrogated was available to be pursued only by arbitration in London, brought proceedings before the English courts for an injunction to enforce the contractual duty, now laid upon RAS, to arbitrate. This was granted by Colman J6 and the appeal of RAS was leapfrogged to the House of Lords.7 On making its reference to the European Court of Justice, the House of Lords did two useful things: it set out why, upon its

1. This is a Comment on the decision of the European Court of Justice in Allianz srl v. West Tankers Inc (The Front Comor) (Case C-185/07) [2009] I ECR 0000 (Judgment of 10 February 2009); [2009] 1 Lloyd’s Rep 413. The earlier stages of the litigation before the English courts are reported as West Tankers Inc v. Riunione Adriatica di Sicurtà. The reference to the ECJ from the House of Lords is reported at [2007] UKHL 4; [2007] 1 Lloyd’s Rep 391. It was after this that RAS was taken over by Allianz srl.
2. It does not appear from the judgment where West Tankers Inc was domiciled; but, on the footing that the Sicilian court had jurisdiction under Art 5(3), it must have had a domicile in an EU Member State other than Italy. On the other hand, its registered office appears to have been in Liberia: see infra, fn 5. It may still have had a domicile in a Member State: see Brussels I Regulation, Art 60.
3. For the change in identity of insurer, see supra, fn 1.
4. Regulation (EC) 44/2001. In this Comment, the material provisions of the Brussels Convention and the Brussels I Regulation are identical, and references to the one may be taken as references to the other.
5. Apparently the Sicilian process was served on West Tankers Inc in Liberia, where it languished unnoticed for months. There is no suggestion that West Tankers failed to move with speed once they were aware of the objectionable Sicilian proceedings.
6. [2005] EWHC 454 (Comm); [2005] 2 Lloyd’s Rep 257.
7. Under the Administration of Justice Act 1969, s 12. Colman J applied, and the Court of Appeal would have been bound by, the decision in Through Transport Mutual Insurance Association (Eurasia) Ltd v. New India Assurance Co Ltd (The Hari Bhum) [2004] EWCA Civ 1598; [2005] 1 Lloyd’s Rep 67. It is to be noted that in that case, as in the case under consideration, the respondent to the application for an injunction was not the original contracting party, but an insurer subrogated to the insured’s rights. There was therefore a sense, but only a sense, in which it was not as directly party to an agreement on jurisdiction or arbitration as it might otherwise have been; the issue was debated at length before Colman J, whose judgment on the issue is an admirable clarification of the law.



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