Harms Bergung Transport and Heavylift GmbH & Co KG v Harms Offshore AHT 'Uranus' GmbH & Co KG & Ors, Court of Appeal - Admiralty Division, May 07, 2015, [2015] EWHC 1269 (Admlty)

Resolution Date:May 07, 2015
Issuing Organization:Admiralty Division
Actores:Harms Bergung Transport and Heavylift GmbH & Co KG v Harms Offshore AHT 'Uranus' GmbH & Co KG & Ors
 
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Claim Nos: 2014 Folio 1343-1348

Neutral Citation Number: [2015] EWHC 1269 (Admlty)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMIRALTY COURT

Royal Courts of Justice

Rolls Building, EC4A 1NL

Date: 07/05/2015

Before:

the Hon Mr Justice Simon

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Between:

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Mr John Kimbell QC (instructed by Keates Ferris) for the Defendants/Applicants

Mr Chris Smith (instructed by Fleet Hamburg LLP) for the Claimant/Respondent

Hearing date: 15 April 2015

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JudgmentMr Justice Simon:

Introduction

  1. This is the hearing of the Defendants' applications dated 23 December 2014 seeking declarations that the Court has no jurisdiction in respect of the Claimant's claims, or alternatively that any in personam claims be stayed under s.9 of the Arbitration Act 1996.

  2. On 4 November 2014 the Claimant (a German ship management company) issued six in rem claims against the owners and/or demise charterers of six anchor-handling tugs registered in Germany: `Uranus', `Magnus', `Ursus', `Taurus', `Orcus' and `Janus' (`the Vessels').

  3. The Claim Forms identified brief details of the claim. The details of the first claim are reasonably clear, with some additional punctuation:

    Pursuant to the technical and commercial management agreement date 26 May 2009, as amended from time to time (`the Contract') between the Claimant as technical and commercial managers and the owners ... and on the basis of acts of owners in way of tort or delict, the Claimant claims damages for wrongful termination of the Contract by owners by way of selling the Vessel without due notice or at all, causing loss and damage to the Claimants.

  4. It is common ground between the parties that this is a claim for damages for the unlawful termination of ship management agreements by the Defendant; and that it is a claim falling within the Admiralty Jurisdiction of the High Court, by reason of s.20(1)(a) and s.20(2)(h) of the Senior Courts Act 1981, as amended: being a claim arising out of an agreement relating to the use of a ship. Although the parties have used different descriptions for these claims, I shall refer to them as the `the ship management claims' and the contracts as `the ship management agreements.'

  5. The second claim is less clearly articulated:

    Further, under the articles of association of the corporate entity of the Owners, the Claimant was a co-owner of the Vessel by way of owning a share in the corporate entity of the Owners. Owners breached the terms of the articles of association by agreeing to sell the Vessel without due notice or at all. The Claimant seeks damages for the wrongful termination of the Contract and for selling the Vessel constituting a breach of the Contract and a breach of the articles of association, tort, and statutory duty in respect of all losses suffered as a result.

  6. This claim is expressed as a co-ownership claim by reference to the Owners' articles of association. It is convenient to refer to these claims as the articles of association claims. In summary, it relates to what is said to be the wrongful resolution by the Defendants to sell the Vessels without giving appropriate notice. The Claimant seeks orders that the resolutions be annulled. There is an issue between the parties as to whether this claim falls within the Admiralty Jurisdiction of the High Court, which turns on the proper interpretation of s.20(2)(a) and (b) of the Senior Courts Act 1981, as amended.

  7. The Claimant's purpose in issuing the Claim Forms was to obtain security for its claims. The ship management claims give rise to disputes which are subject to German arbitration under the terms of clause 15 of the ship management agreements; and the articles of association claims are linked to proceedings before the German Courts which have exclusive jurisdiction under Art. 22.2 of Council Regulation (EC) No.44/2001 of December 2000 (`the Brussels 1 Regulation') since the proceedings have as their object the validity of decisions of companies whose seat is in Germany.

  8. The in rem Claim Forms were not served and none of the Vessels have been arrested within the jurisdiction; however, the Defendants filed an acknowledgement of service on 4 November 2014 and entered an appearance for the purposes of challenging the jurisdiction. There is agreement between the parties that the provisions of CPR Part 61.3(6)) entitled them to do so.

  9. The Defendants' initial attitude, reflected in their applications of 23 December 2014, was to challenge jurisdiction in relation to both claims. More recently their approach has changed in relation to the ship management claims. Not only do they accept that these claims fall within s.20(2)(h) of the Senior Courts Act 1981, they now wish these claims to be decided in this jurisdiction and are prepared to provide appropriate security for the determination of such claims, to be assessed by the Admiralty Registrar under CPR Part 61.5(10) if not agreed. They do not, however, accept that the court has jurisdiction in relation to the articles of association claims, and seek declarations to that effect.

  10. Clause 15 of the ship management agreements provided for German law and arbitration.

    This Agreement is governed by German law.

    Any and all disputes arising in connection with this Agreement or with respect to its validity, shall be decided upon through a Court of Arbitration based in Hamburg and in accordance with the Rules of Arbitration of the German Maritime Arbitration Association. The proceedings will be conducted in the German language.

  11. One of the issues that arise is as to whether and, if so, in what respects the English Court is conferred with jurisdiction over claims which are clearly subject to a German arbitration agreement.

  12. The Claimant's position is that, although it seeks security for both claims, it is content for these claims to be decided in this jurisdiction, if security is provided and other matters being agreed. However, it does not agree that only the ship management claims should be heard here.

  13. Since no such agreement has been reached, the following issues arise;

    (a) Has there been an agreement or mutually enforceable commitment to refer the ship management claims to resolution by this court? Alternatively, are the Defendants entitled to insist that the ship management claims are determined here?

    (b) Whether the articles of association claims fall within a head of Admiralty jurisdiction as set out in section 20(2) of the Senior Courts Act 1981?

    The background

  14. Both disputes arise from the breakdown...

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