Lloyd's Maritime and Commercial Law Quarterly
IN ANOTHER’S SHOES: SUBROGATED PARTIES AND THE BRUSSELS I REGULATION
Andrew Dickinson*
Airbus v Generali Italia
Unless and until the United Kingdom leaves the European Union, jurisdiction of the English courts in civil and commercial matters will be governed by rules laid down in the recast Brussels I Regulation,1 which for the most part take precedence over, and operate without reference to, local rules of private international law. As Professor Adrian Briggs has emphasised, the distinct character of the Brussels I and national regimes must be recognised and respected.2 Rules and principles that apply within one system are not automatically to be transferred to the other.
This basic proposition would appear to have been overlooked, or at least underplayed, in Airbus SAS v Generali Italia SpA,3 in which the English courts assumed jurisdiction to entertain claims for declaratory relief against Italian insurers of an aircraft on the basis of an English choice of court agreement concluded between the claimant and the insured. Although the claim to jurisdiction was ostensibly based on Art.25 of the recast Brussels I Regulation, the central question whether the insurers were bound by the choice of court agreement was treated as one of English law, neglecting principles of EU law concerning the effectiveness of such agreements against non-parties. The decision, focused on the question of interpretation of the choice of court provision in the warranties agreement,4 should not be seen as a precedent for future cases of this kind.
On 29 September 2013, an Airbus A320-200 aircraft operated by Alitalia was forced to make an emergency landing at Fiumicino Airport in Rome due to a fault in its landing gear. Alitalia’s Italian insurers, the appellants in the present action, indemnified the company for the damage suffered in an amount exceeding US$11 million. In July 2017, the insurers brought proceedings in Italy against Airbus to recover this amount, relying on rights of subrogation under the Italian Civil Code5 to assert a claim for tortious negligence causing damage to Alitalia.
As part of the suite of contractual documents put in place to finance the acquisition of the aircraft, Airbus had entered into a warranties agreement with Alitalia. That agreement contained broadly worded English choice of law and choice of court provisions, each extending to non-contractual obligations connected with the agreement. In January 2018,
* Fellow, St Catherine's College and Professor of Law, University of Oxford.
1. Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) ([2012] OJ L351/1) (“recast Brussels I Regulation”).
2. A Briggs, “The Hidden Depths of the Law of Jurisdiction” [2016] LMCLQ 236.
3. [2019] EWHC 2737 (Comm) (Moulder J); [2019] EWCA Civ 805 (CA); [2019] 2 Lloyd's Rep 59 (“Airbus”). A similar desensitisation to differences in jurisdictional regime at appellate level can be seen, for example, in decisions concerning the standard of proof in the jurisdictional enquiry (Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10; [2019] 2 Lloyd's Rep 128; noted A Briggs [2019] LMCLQ 195 and A Dickinson (2019) 135 LQR 369), anti-suit injunctions to protect the jurisdiction of the English court (Petter v EMC Europe Ltd [2015] EWCA Civ 828; [2015] 2 CLC 178) and damages for breach of choice of court agreements (Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] EWCA Civ 1010; [2014] 2 Lloyd's Rep 544).
4. [2019] EWHC 2737 (Comm), [23]. The position of the insurers, as distinct from that of the insured, was apparently raised as an afterthought before Moulder J (see ibid, [68]) but was more prominent in argument before the Court of Appeal.
5. Specifically, Arts 1916 (legal subrogation) or 1201 (contractual subrogation).
Case and comment
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