Minister for Agriculture v Alpe Leipziger A.g.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Miss Justice Laffoy
• Judgment Date: 06 March 1998
• Neutral Citation: [1998] IEHC 45
• Docket Number: No. 8620p/1993
• Date: 06 March 1998

MIN FOR AGRICULTURE, FOOD & FORESTRY v. ALTE LEIPZIGER

BETWEEN

THE MINISTER FOR AGRICULTURE, FOOD AND FORESTRY

PLAINTIFF

AND

ALTE LEIPZIGER VERSCIHERUNG AKTIENGESELLSCHAFT T/A ALTE LEIPZIGER

DEFENDANT

[1998] IEHC 45

No. 8620p/1993

THE HIGH COURT

Synopsis

Conflict of Laws

Contract of insurance; exclusive jurisdiction clause; whether general conditions of insurance policies were incorporated into the contract; whether a defendant can invoke an exclusive jurisdiction clause in an insurance agreement whose existence is disputed; whether the jurisdiction clause was included in the insurance agreement; whether the jurisdiction clause complied with the requirements of the Brussels Convention; whether a jurisdiction clause must be limited to the risks specified in the Brussels Convention; whether there was consensus on the jurisdiction clause; Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988; arts. 8, 12, 17 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968.

Held: Agreement on jurisdiction was contrary to Art.12 of the Brussels Convention Minister for Agriculture, Food and Forestry v. Alte Leipziger Versciherung Aktiengesellschaft - High Court: Laffoy J. - 06/03/1998

Citations:

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S3

BRUSSELS CONVENTION 1968 ART 8

BRUSSELS CONVENTION 1968 ART 33

BRUSSELS CONVENTION 1968 ART 17

ACCESSION CONVENTION 1978

ACCESSION CONVENTION 1982

ACCESSION CONVENTION 1989

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS ACT 1993 SCHED 1

BRUSSELS CONVENTION 1968 ART 12

BENINCASA V DENTALKIT SRL UNREP ECJ 3.7.1997

BRUSSELS CONVENTION 1968 ART 12(5)

BRUSSELS CONVENTION 1968 ART 12A

CHARMAN V WOC 1993 2 L I REP 551

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS ACT 1993 S4

MSG V RHENANES 1997 1 ECR 911

RUSS V HAVEN 1984 ECR 2417

1 Miss Justice Laffoy delivered the 6th day of March, 1998

THE PROCEEDINGS

2 In these proceedings the Plaintiff claims a declaration that -

"......the contract of insurance between the Plaintiff as insured and the Defendant as insurer evidenced by a letter and cover slip dated the 28th October, 1991 was a valid and binding contract of insurance as of 7th January, 1992."

3 The Plaintiff also seeks a declaration that the Defendant is obliged to indemnify the Plaintiff under the aforesaid contract and an Order directing the Defendant to pay such sum to the Plaintiff as is necessary to give full effect to the aforesaid indemnity. This Court's power under the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988to determine the claim pursuant to, inter alia, Article 8 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Convention) is invoked.

4 The Defendant has entered a limited appearance to the proceedings, limited to contesting the jurisdiction of this Court to hear and determine the Plaintiff's claim, but, without prejudice to such appearance, the Defendant reserves the right in the alternative to defend the proceedings. On this application the Defendant seeks an Order pursuant to Order 12, Rule 26 of the Rules of the Superior Courts, 1986 setting aside the service of the proceedings on the Defendant on the grounds that the insurance policy (if any) upon which the Plaintiff relies is the subject of a clause conferring sole jurisdiction to hear disputes between the parties upon the Tribunal de Commerce Paris.

5 The underlying event which gave rise to the proceedings was a fire at the United Meat Packers plant at Ballaghadereen, County Roscommon on 7th January, 1992 during which meat said to be worth £22 million which the Plaintiff, as intervention agent for the European Community, had in cold storage there is alleged to have been destroyed.

THE EVIDENCE

6 The Defendant's application is grounded on an Affidavit sworn by Camille Hamen, who in 1991 was the Director General of Office de Souscription d'Assurance Transport S.A. (O.S.A.T.), a French company, which held an appointment authorising it to write transport insurance policies in the name of the Defendant, a company registered in Germany providing maritime and transport, fire and miscellaneous risk insurance. Under French law O.S.A.T. was authorised to write insurance risks for transport by sea, air, land, fire, accident and miscellaneous risks in accordance with the French Insurance Code. In his Affidavit, Mr. Hamen acknowledged that he was prepared, on behalf of the Defendant and other insurers from whom he held an agency, to issue an insurance policy to the Plaintiff among other potential customers on terms and conditions detailed to the Plaintiff's broker, Mr. David Gresty of D.B. Agencies S.A. of Monaco. However, he further averred as follows:-

"Because the conditions of the issue of the policy were never fulfilled, no policy was ever issued. Pending the completion of negotiations, I issued a cover note on the 28th October, 1991 to brokers acting for the Plaintiff. This was of limited duration and lapsed on the failure of the Plaintiff to complete the formalities and pay a premium...... I say and believe, however, that if a policy of insurance had come into existence, as alleged by the Plaintiff, it would have been on the basis of proposed policy conditions which incorporate the terms of the standard French Policies."

7 Mr. Hamen then went on to describe the circumstances under which he became involved in the insurance on behalf of the Defendant. In October 1991 he was introduced to Mr. Gresty who had twelve Irish clients involved in the beef trade who required transport insurance cover. From enquiries he made in the trade Mr. Hamen learned that the insurance of Irish beef had been covered by a policy on the French market and that the latter had been cancelled and that this was the reason Mr. Gresty was seeking several quotations and an alternative solution. Mr. Hamen was offered a group of risks, fifteen policies in all, on the same conditions as the previous insurance. He rejected these conditions and he also rejected three of the proposed parties. He drafted new special conditions. On 25th October, 1991 he was told by Mr. Gresty that two companies accepted these conditions and that a number of other customers would also probably accept them but he wanted to leave the policies with them for perusal. Mr. Hamen was asked to provide an interim cover while awaiting the possible acceptance of the conditions.

8 Mr. Hamen averred that he gave the cover note dated 28th October, 1991 to Mr. Gresty along with a draft of intended policy special conditions. In this document he listed the financial and technical conditions under which certain insurances could be set up at a later stage under specified terms and conditions. He further averred as follows:-

"This document was an interim document of a limited duration, as I have said above, which was to be necessarily followed by the issuing and signing of a formal policy. The Department of Agriculture cover was subject, for all risks, to conditions precedent. A rating agreement had to take place within eight days. However, no agreement was ever reached and as a result the interim cover was retroactively cancelled. The policy was never issued because the Plaintiff never returned the signed draft policy and never paid a premium...... I say and believe that if the Plaintiff had complied with all the conditions required by the Defendant to have an insurance policy issued, this insurance would have been issued on the basis of the draft cover handed to Mr. Gresty..... and detailed in the document called cover note dated 28th October, 1991.".

9 Mr. Hamen referred to the second paragraph of the cover note wherein, he averred, it was indicated that "any insurance cover" was subject to "French Policies that is to say the usual general conditions of the French policies". He averred that this phrase referred to the general conditions of transport and marine insurance given by him to Mr. Gresty on 28th October, 1991. He also referred to the draft policy dated 8th November, 1991 in which it was provided that the general conditions of cover were:-

10 (a) French marine insurance policy "Cargo Insurance" of 30th June, 1983, amended 16th February, 1990;

11 (b) French insurance policy covering "Goods Transported by Land" dated 7th November, 1990; and

12 (c) French insurance policy for "Goods Transported by Air" dated 25th October, 1990.

13 In each of the foregoing policies, prints of which he exhibited, it was provided that proceedings could only be brought against the insurer before the Commerce Tribunal of the place in which the policy was written, in this case, Paris. Mr. Hamen further averred that "Mr. Gresty knew that the incorporation of the terms of these standard policies constituted the basis of the document entitled "cover note"". Although the policy of the Plaintiff had been drafted but not issued, it would necessarily have included "the standard policies", if it had been issued.

14 Mr. Hamen also averred that the text of the draft policies would have covered the loss of goods in transit or transported by ship, aeroplane or truck. The storage of goods was limited to goods that were to be transported or had just been transported.

15 The Defendant also relied on an Affidavit sworn by Andre Louis Simon, a French lawyer. Mr. Simon averred in relation to the cover note of 28th October, 1991 that -

".......[it] does indeed constitute a cover note giving the insured parties listed therein interim cover valid until a policy has been drawn up or until the time parties disagree on the terms and conditions of the intended policy and issued to each of the named insured parties and, lasting at the latest, for a duration of eight days from that date...