Blog: How a superyacht’s mishap landed QBE in a post-Brexit courtroom stoush – The Australian Financial Review

Fortuitously, however, the Angara’s owners had taken out a protection and indemnity (P&I) policy with QBE just six weeks before.

This is a standard policy for shipowners, protecting them against liability claims arising from collisions, property damage, environmental damage and, yes, pollution.

The undersea cable owner, Red Electrica de Espana, was insured by Generali and a co-insurer, and got a €7.7 million payout.

But Generali was “seemingly unable to make a recovery against the yacht’s owners”, as QBE’s solicitors Stephenson Harwood put it. So Generali then turned its fire on QBE.

In essence, Generali wanted to get QBE to pay out on its third-party-damage policy with Angara’s owners, but to give the money straight to the Spanish insurer.

QBE’s response was to launch a legal action of its own: an anti-suit injunction. ASIs are generally used to stop litigants from cherry-picking the jurisdiction in which they want to fight.

In this instance, QBE wanted an English court to tell Generali, via an ASI, that the Spanish insurer could not launch its case in Spain.

QBE said its P&I policy with the Angara’s owners had a clause that required any dispute to be arbitrated in London. So if Generali was trying to get a payout from that policy, it had to go to arbitration in London, not a Spanish court.

Brexit dividend

This is where Brexit – which coincidentally was delivered by that famous referendum just a week after the Angara’s alleged tussle with the undersea cable – comes into the picture.

“Pre-Brexit, QBE’s position would have been fairly hopeless: intra-EU ASIs were banned,” Andrew Tettenborn, a professor at Swansea Law School, wrote in a blog post this week for the Institute of International Shipping and Trade Law.

“But in this, one of the first post-Brexit P&I cases to come to the English courts, QBE won hands down.”

This being maritime insurance law, the case revolved around technicalities in the wording of the QBE-Angara contract, and on exactly what might be argued under Spanish law.

But the judge found that since the dispute was ultimately in essence one of contract, not one subject to Spanish insurance law, then it was “conditioned by the London arbitration agreement in the policy” – so the ASI should be granted to both QBE’s British and European subsidiaries.

QBE did not respond to requests for comment. But according to Professor Tetterborn, QBE’s victory means “enforcement of jurisdiction and arbitration clauses in a European context is now fairly straightforward”.

It also means that English judges will be unlikely to accept claimants’ efforts to shift litigation offshore by “giving arbitration or jurisdiction clauses an unnaturally narrow meaning”.

“Life, in short, has got a good deal easier for P&I interests,” he wrote. “Now, where’s that bottle of cava?”

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