In WECO PROJECTS APS - v - MR. PIER LUIGI LORO PIANA, CREDEM LEASING SPA and PETERS AND MAY LIMITED, Campbell Johnston Clark acted on behalf of Danish ship owning Respondents in their successful defence of a jurisdictional challenge made by the Italian first and second defendants.

Background

The award-winning racing yacht, MYSONG, was lost overboard on 26 May 2019 whilst en-route from Antigua to Genoa.

The Yacht was owned by Credem Leasing SPA (“Credem”) and leased to the wealthy Italian businessman, Mr Loro Piana. Mr Piana is a shareholder in the high-end clothing company, Loro Piana SpA, founded by his family and which he built up from humble beginnings to a billion-dollar brand with his brother.

The transportation of the Yacht to Genoa had been arranged on Mr Piana’s behalf by yacht transportation specialists, Peters & May Ltd (“PML”), along with an associated company Peters & May SRL (“PMS”). PML had issued a booking note to Mr Piana which contained a jurisdiction agreement (“the EJC”) which provided English law and High Court jurisdiction for disputes.

The booking note also contained a Himalaya clause by which provided:

“every exemption from liability, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to [PML] or to which [PML] is entitled hereunder shall also be available and shall extend to protect every such servant or agent of [PML]…and all such persons shall to this extent be or be deemed to be parties to the agreement evidenced by this Booking Note.”

The carrying Vessel was (demise) owned by CJC’s clients (“Owners”), who had time-chartered the Vessel to German charterers who, in turn, had sub-chartered to another German based chartering entity. 

The cause of the incident is yet to be decided.

Following the loss of the Yacht, Mr Piana commenced proceedings in Milan, Italy, against PML and PMS. To avoid the potential of an Italian Torpedo, CJC pre-emptively commenced English High Court proceedings against Mr Piana, Credem (“Yacht Interests”) and PML seeking a declaration that it was not liable for the loss.

Further claims were subsequently commenced:-

• PML against Mr Piana and Credem in the same English High Court.
• PMS against Mr Piana and Credem (separate English High Court proceedings); and
• Mr Piana against Charterers and Owners in the Courts of Genoa, Italy.

With two Italian courts and the English High court all “seised” of jurisdiction for the same factual incident, Mr Piana and Credem challenged the jurisdiction of the English High Court to hear the claims.

Issues

In resolving Yacht Interests’ jurisdiction challenge against Owners, the Court was asked to consider, amongst other things, whether jurisdiction was established against Mr Piana as a matter of EU law under Article 8(1) of the Recast Regulation. This states:

Owners contended that its claim for negative declaratory relief against Mr Piana was sufficiently closely connected to its claims against PML who operated as an “anchor” defendant and:-

• PML were domiciled within England; and
• PML had consented to the jurisdiction of the English High Court.

Judgment

In a wide ranging and detailed Judgment, Christopher Hancock QC (sitting as a Judge of the High Court) held that:

• Owners were entitled to found jurisdiction against PML, Yacht Interests under Article 8(1) of the Recast Regulation. There was a sufficiently close connection between Owners’ claims against PML and its claims against Yacht Interests to fall within Article 8(1) of the Recast Regulation.
• There was there was good arguable case that Mr Piana would have foreseen that all claims relating to the casualty would be determined in the English Courts, given the existence of the jurisdiction agreement in the booking note but that, in any event, there was no separate requirement of foreseeability in Article 8; such foreseeability was simply part of the inquiry into whether there is a sufficiently close connection between the relevant claims.
• PML was entitled to rely on the booking note jurisdiction agreement as against Yacht Interests.  
• Mr Piana could not avail himself of English consumer protections/exclusions to the jurisdiction agreement made in the booking note as, despite being deemed a consumer under the Consumer Rights Act 2015, Mr Piana had not established that the jurisdiction term was unfair as required under section 62 of the Act.
• Mr Piana was also unable to avail himself of any corresponding EU consumer protections/exclusions as the booking note was a “contract of transport” falling within Article 17(3) of the Recast Regulation and thus was excluded from EU consumer protections.

The Judge further noted (obiter) that:

• A freight forwarding contract generally might fall to be considered a “contract of transport” for the purposes of EU law even if such contract would ordinarily not be considered as a “contract of carriage” as a matter of English law. 
• Mr Piana did not fall to be a consumer as a matter of EU law (contrary to the position under the English Consumer Rights Act) as it was probable that the Yacht was intended to be used, to some extent, for business purposes. He had failed to satisfy the necessary criteria under the Recast Regulations that the intended business use of the Yacht following arrival at Genoa was only negligible.

Comment

The Judgment provides a timely reminder of the application of Article 8(1) of the Recast Regulation and how, when adopted correctly, the provision provides a powerful tool to establish jurisdiction in multi-party, potentially multi-jurisdictional claims where one of the defendants is domiciled in the jurisdiction.

The Campbell Johnston Clark team of Allen Marks and Alex Hudson instructed John Russell QC and Andrew Leung of Quadrant Chambers.