Dolphin Maritime & Aviation Services Ltd v Sveriges Angartygs Assurans Forening, Court of Appeal - Commercial Court, April 02, 2009, [2009] EWHC 716 (Comm)

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Dolphin Maritime & Aviation Services Ltd v Sveriges Angartygs Assurans Forening, Court of Appeal - Commercial Court, April 02, 2009, [2009] EWHC 716 (Comm)

Neutral Citation Number: [2009] EWHC 716 (Comm)

Case No: 2008 FOLIO 865

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 02/04/2009

Before:

MR JUSTICE CHRISTOPHER CLARKE

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Between:

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Robert Bright QC (instructed by Reed Smith LLP) for the Claimant

Robert Thomas (instructed by Hill Dickinson LLP) for the Defendant

Hearing date: 18th February 2009

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Judgment

2

MR JUSTICE CHRISTOPHER CLARKE :

1 This is an application by the defendants (i) to strike out the claim against them for procuring a breach of contract and unlawful means conspiracy on the ground that the Court has no jurisdiction to hear it; and (ii) for summary judgment in a claim in contract on the grounds that it has no realistic prospect of success.

2 The claimant, Dolphin Maritime and Aviation Services Limited (``Dolphin''), is an English company based in Stanmore, Middlesex. It carries on business as a cargo recovery agent and claims correspondent. The defendant, Sveriges Angfartygs Assurance Forening (``the Club''), is a Swedish corporation and a well established P & I Club.

3 In order to understand the nature of the dispute it is necessary to set out some of the history.

Facts

4 At some time after 31st July 2006 the Panamanian flagged vessel ``New Flame'', which was entered with the Club, left New York carrying a cargo of scrap steel of about 42,000 mts bound for Iskenderun, Turkey. The purchasers of the cargo- Nursan Metalurji Edustri AS - had insured it with two Turkish insurers: - Anadolu Sigorta (``Anadolu'') and Garanti Sigorta (``Garanti''). Garanti now operates under the name Eureko Sigorta (``Eureko''). I refer to them hereafter as ``the underwriters''.

5 On 12th August 2007 the ``New Flame'' collided with the m.v. ``Torm Gertrud'' off Gibraltar. The ``New Flame'' became semi-submerged and grounded on a reef in Gibraltar waters. There was an unsuccessful attempt to salve her under a Lloyd's Open Form. Eventually the Government of Gibraltar issued a wreck removal order requiring the removal of ``New Flame'' and her cargo. At some stage the underwriters paid the cargo owners and became subrogated to their rights. An action was instituted in New York by the owners of the cargo against the owners of both vessels. The underwriters instructed Dolphin to seek to recover compensation in respect of the cargo on their behalf and that of the owners of the cargo.

6 Recovery agents such as Dolphin are often paid by way of commission on the recoveries which they take by way of deduction from the monies recovered. They then pass on the balance to the principal on whose behalf they have acted. Dolphin's case is that it accepted instructions from cargo underwriters subject to its standard terms and conditions which make provision for their commission to be paid in that way.

Dolphin's terms

7 Dolphins standard terms provide, inter alia, as follows:

``1.1.

(c) ``The Services'' means the provision of or doing or taking of one some or all of (1) representation of the Client by the Company, including claims handling and settling;(2) actions by the Company on behalf of the Client to achieve a Recovery for the Client; (3) the giving of advice and opinions and consulting services to the Client; (4) the conduct of investigations for the benefit of and on behalf of t...

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