Generali Italia SpA & Ors v Pelagic Fisheries Corporation & Anor (Rev 1)

Under Brussels I Recast Regulation, a court arguably designated by an exclusive choice-of-court agreement has priority to determine its own jurisdiction. The court need not defer merely because another Member State’s court was seised first or may possess non-exclusive jurisdiction. A stay may be appropriate where there is a serious argument that the first-seised court was itself exclusively designated.

A specifically agreed jurisdiction condition ordinarily prevails over an inconsistent jurisdiction clause in incorporated standard terms. Whether apparently conflicting terms can be reconciled depends on their language, contractual status and commercial context. An obvious drafting mistake may be corrected by interpretation where both the mistake and the required correction are clear.

Insurers sought declarations that they were not liable under marine insurance policies covering a vessel which had sunk. The insureds challenged the English court’s jurisdiction or sought stays because one insured had commenced earlier proceedings against several insurers in Treviso, Italy.

The Treviso court had stayed its proceedings so that the English court could determine whether the policies conferred exclusive English jurisdiction. The policies contained differing combinations of bespoke English law and jurisdiction wording, incorporated Italian standard terms, and, in one slip, directly contradictory English and Italian provisions.

The principal questions were whether the English court should determine its own jurisdiction under Articles 25 and 31(2) of the Brussels I Recast Regulation, whether the relevant policies contained exclusive English jurisdiction agreements, and whether the remaining claims should be stayed as related actions under Article 30.

1. The insureds’ applications were dismissed. The insurers had a good arguable case that the English court possessed jurisdiction under Article 25 of the Brussels I Recast Regulation. The court therefore determined that its jurisdiction was established: paras [78], [95], [105], [111], [118].

2. Article 31(2) gives an arguably designated court priority to decide whether an exclusive jurisdiction agreement confers jurisdiction upon it. The English court was the court allegedly designated here. No serious argument was advanced that the Italian court had exclusive jurisdiction, and the Italian proceedings had been stayed to permit the English determination. Articles 29 and 31(2) therefore required no English stay: paras [67]–[78]. Where genuinely competing exclusive jurisdiction agreements exist, or a battle of forms produces competing designations, the second-seised court should ordinarily stay only if there is at least a serious argument that the first-seised court was designated: paras [71]–[77].

3. The policies issued by Generali, SIAT, Swiss Re and StarStone were subject to exclusive English jurisdiction. Their bespoke condition stating “English Jurisdiction. Subject to English Law and practice” prevailed over the printed Italian jurisdiction provision in the incorporated Camogli Policy. The bespoke term’s prominence and contractual status, the inconsistencies between the provisions, and the commercial undesirability of fragmented coverage litigation showed that the Camogli provision merely filled gaps and did not dilute the express English choice: paras [84]–[95].

4. PICC also had the better argument for exclusive English jurisdiction. Its cover note expressly selected English law and exclusive English jurisdiction. The placing broker acted for the insureds, so their consent was clearly and precisely demonstrated through their agent: paras [97]–[105].

5. India International’s slip contained an obvious drafting mistake because it selected both English and Italian law and jurisdiction. The face of the slip, the wider placement and the claims-lead arrangements made the required correction clear: English law and English jurisdiction applied, and the Italian references were erroneous: paras [106]–[112].

6. The Article 30 application consequently did not arise. Had the Treviso claims against Pelagic been stayed, the identical claims against Fairport would also have been stayed. The non-Treviso insurers’ claims would not have been stayed because their exclusive English jurisdiction clauses, the absence of any useful consolidation, and the prospect of delay outweighed the speculative benefit of awaiting the Italian proceedings: paras [113]–[117].

• High Court (Commercial Court): dismissed the insureds’ jurisdictional and stay applications and held that it had jurisdiction under Article 25 of the Brussels I Recast Regulation: [2020] EWHC 1228 (Comm).

• Treviso court: stayed Pelagic’s earlier Italian proceedings so that the English court could determine whether the policies contained exclusive English jurisdiction agreements. Pelagic’s appeals against those stay orders remained pending when this judgment was delivered.