Was ever a ship as unhappily named as the Prestige? Twenty years ago it was engaged to carry a cargo of fuel oil from St Petersburg to Singapore; the wretched thing struggled to get as far as Cape Finisterre, and then cracked up. The authorities in France, Spain and Portugal refused to offer shelter, so the hulk was left to spill its vast and malevolent cargo into the Atlantic Ocean, which spread it far and wide. The damage to the marine environment was colossal, but was reversed and repaired with amazing speed and success; the process of deciding who has to pay is, two decades later, anything but cleared up. This is not the place to tell the story of the litigation, which would fill an entire number of this Quarterly. But the most recent chapter, which gave rise to the decision of the Court of Justice of the European Union (ECJ) in London Steam-Ship Owners’ Mutual Insurance Association Ltd v Kingdom of Spain,1 has a significance which, like the oil, will also spread itself far and wide. The rules applicable were those (superseding the Brussels Convention2) of the Brussels Regulation, both original (Reg.44/2001) and recast (Brussels I Regulation, 1215/2012).3 However, although the relevant pieces of litigation were launched prior to 1 January 2021, the significance of the case is independent of that fact.

The Spanish state sued various entities to recoup what it claimed as losses resulting from the cleaning operation. It identified the Club, insurer of the vessel, as a viable target, and fancied that, as victim of an insured tortfeasor, it had a direct claim for the sums payable under that policy. The policy of insurance provided for arbitration in London, but the Spanish state preferred to sue in its own courts, taking the position that it was not bound to proceed by arbitration: as one might say, it claimed to take the benefit, but not the burden, of the policy on which it relied; it picked out the plums and left the duff.

The insurer took objection to its liability to anyone claiming through or under that policy being determined outside the arbitral tribunal foreseen by its policy.4 It could not defend