Berytus Insurance & Reinsurance Company SAL v Golden Adventure Shipping SA

An asymmetrical jurisdiction clause permitting an insurer to sue in any court with or claiming jurisdiction, coupled with a non-exclusive submission and forum non conveniens waiver, is not an exclusive choice of court agreement merely because one party submits to the jurisdiction of a specified court. The clause must be construed as a whole. Parallel proceedings, including proceedings commenced to pre-empt proceedings elsewhere, do not ordinarily justify a stay where that risk was inherent and foreseeable in the agreed clause. A forum non conveniens waiver may be displaced only in highly circumscribed circumstances. Indemnity costs require conduct unreasonable to a high degree; failure on a jurisdiction challenge alone is insufficient.

The claimant, a Lebanese insurance underwriter, sought a declaration that it was not liable under a marine insurance policy issued to the defendant, a Marshall Islands one-ship company. The policy was governed by English law and practice. It required claims by the assured against the underwriters to be brought in Cyprus, permitted the underwriters to sue in any country with or claiming jurisdiction, and contained a non-exclusive submission to Cyprus together with a forum non conveniens waiver.

The defendant challenged the English court’s jurisdiction, relying on the Hague Convention and on English domestic principles concerning non-exclusive jurisdiction agreements. It also sought a stay because proceedings in Cyprus were anticipated or commenced. The court determined the jurisdiction challenge, costs, and consequential time for filing a further acknowledgement of service.

1. Jurisdiction. The court applied the tripartite test for service out: a good arguable case that a jurisdiction gateway applied, a serious issue to be tried, and England as clearly and distinctly the appropriate forum. The requirements were satisfied. The English-law clause engaged Practice Direction 6B, paragraph 3.1(6)(c), the coverage dispute was seriously arguable, and the defendant had waived objections based on forum non conveniens, subject only to highly limited exceptions.
2. Hague Convention. The clause was not within the Convention because it was not exclusive. Article 3(b)’s deeming provision operated only unless the parties expressly provided otherwise. The words submitting the assured to the “non-exclusive” jurisdiction of Cyprus were an express provision to the contrary. Paragraph [3], expressly reserving the claimant’s right to sue elsewhere, reinforced that construction. The issue was resolved by ordinary English contractual construction, without deciding whether an asymmetrical clause that was exclusive or deemed exclusive would fall within the Convention.
3. Domestic law. The claimant was not required to sue in Cyprus. Authorities concerning symmetrical non-exclusive jurisdiction clauses did not govern an asymmetrical clause containing an express right to sue elsewhere and a forum non conveniens waiver. The waiver prevented the defendant from objecting to the forum selected by the claimant, save for highly circumscribed circumstances involving unforeseeable matters affecting the interests of justice.
4. The foreseeable risk of parallel proceedings, and the fact that the English proceedings preceded anticipated Cypriot proceedings, did not justify a stay. The defendant retained the ability to counterclaim in England, enforcement difficulties were equivalent, and English law and language supplied legitimate juridical advantages.
5. Costs. The defendant’s comprehensive failure did not justify indemnity costs. The Excelsior test requires conduct beyond the norm or unreasonable conduct to a high degree. Costs were therefore payable on the standard basis. The junior counsel’s £10,000 brief fee was reduced by £7,500 as disproportionate.
6. The jurisdiction application was dismissed. The time for filing a further acknowledgement of service was extended by seven days, to 21 days.

Not stated in the judgment. This was a first-instance application in the Commercial Court.