Castlelyons Enterprises Ltd v Eukor Car Carriers Inc.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 03 October 2016 |
| Neutral Citation | [2016] IEHC 537 |
| Docket Number | [2015 No. 8402P] |
| Court | High Court |
| Date | 03 October 2016 |
[2016] IEHC 537
Faherty J.
[2015 No. 8402P]
THE HIGH COURT
Practice & Procedures – Breach of contract – Wrongful delivery – Tort of Conversion – Issuance of summons – .O. 11, r. 8 and O.11A, r. 6 of the Rules of the Superior Courts – Brussels Recast Regulation – Domicile – Jurisdiction.
Facts: The first named defendant sought an order under O.12, r 26 and the inherent jurisdiction of the court to set aside the service of the summons and dismiss the claim against the first named defendant alleging wrongful delivery to an unknown third party resulting in loss of goods. The plaintiff argued that the Court's jurisdiction fell within the ambit of o. 11A and thus, the Recast Regulation would be applicable in the present case. The plaintiff further relied upon art.7 of the Recast Regulation dealing with special jurisdiction.
Mr. Justice Noonan set aside the summons and dismissed the claim of the plaintiff against the first named defendant. The Court found that the first named defendant had been domiciled in South Korea and thus, art.7 of the Recast Regulation would not apply to the first named defendant as it applied to the defendants domiciled in the ‘Member State.’ The Court held that the Court lacked jurisdiction to hear the present matter.
This application is brought by the first defendant (‘Eukor’) for an order pursuant to O. 12, r. 26 and the inherent jurisdiction of the court setting aside the service of the summons herein and dismissing the claim as against Eukor.
In 2009, the plaintiff was desirous of transporting a cargo of construction machinery to the United Arab Emirates. It engaged an English shipping agent, the second defendant (‘NMT’) to make the necessary arrangements. NMT contacted Wallenius Wilhelmsen Logistics (‘WWL’), Eukor's agents for the purpose of making the necessary arrangements. Eukor is a shipping company registered and having its principle place of business in Seoul, South Korea. On 13th February, 2009, NMT booked carriage of the goods through WWL from Dublin to Jebel Ali on Eukor's vessel. On 22nd February, 2009, Eukor issued the original bill of lading for the cargo and on 4th March, 2009, WWL in turn provided three original bills of lading to NMT in respect of the cargo. The original bill of lading had appended to it general terms which included at clause 25, the following:
‘Any and all action concerning custody or carriage under this Bill of Lading whether based on breach of contract, tort or otherwise should be brought before the Seoul Civil District Court in Korea … Claims arising from or in connection with or relating to this bill of lading shall be exclusively governed by the law of Korea except otherwise provided in this Bill of Lading’.
The plaintiff alleges that it did not receive the bill of lading until 2010, after the events complained of by the plaintiff. The uncontroverted evidence of Eukor's deponent, Chan-Doo Park, is that on 10th March, 2009, NMT requested WWL to amend the original bill of lading by changing the consignee of the shipment from Castlelyons Dubai to Sire Contracting LLC (‘Sire’). NMT told WWL that the reason for the change of name of consignee was necessitated because Castlelyons Dubai, the original consignee, was not set up to conduct any business transactions in Dubai. At the same time NMT confirmed that it would surrender the original bill of lading to WWL for the change of consignee to be executed. On 20th March, 2009, the cargo arrived in Jebel Ali aboard Eukor's vessel. On 23rd March, 2009, NMT requested WWL to release the cargo to Sire without presenting the original bill of lading, stating that the originals would be with WWL shortly. The original bill of lading was in fact subsequently surrendered to WWL. Accordingly WWL instructed its agents to release the cargo without presentation of the amended bill of lading as requested by NMT. The cargo was duly released.
Eukor heard nothing further about the matter for five years when a letter dated 12th February, 2014, was received from the plaintiff's solicitors. The caption to this letter refers to the bill of...
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...Delatex [2004] 4 I.R. 307 and, more recently, the decision of Noonan J. in Castlelyons Enterprises Ltd v. Eukor Car Carriers Inc & Anor [2016] IEHC 537 in which Noonan J. stated:- 'The failure to state the precise basis upon which the court should assume jurisdiction in the endorsement on ......
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