An insurer recently filed a
redress lawsuit against a ship owner, seeking reimbursement for the amount paid
to the insured after the latter was required to fund additional freight.
Background
The insured's cargo was shipped
in January 2013 from the Shanghai port to the Paranagua port.
However, in March 2013 the
vessel's main engine failed 80 nautical miles northwest of Sumatra and it had
to be towed to the closest port of Jurong in Singapore.
General average was declared
after it was ascertained that the repairs would take several months. For this
reason, the insurer executed a new sea carriage contract to ship the cargo to
Paranagua.
After the insurer reimbursed the
additional freight paid for by the insured, subrogating itself to the insured's
rights, it filed a redress lawsuit against the ship owner seeking compensation
for the additional freight. The lawsuit was assigned to the Sao Paulo Fourth
Civil Court.
In its defence, the ship owner
invoked the jurisdiction clause stipulated in the bill of lading, which
provided that any dispute arising from the carriage should be submitted to
arbitration in London.
The ship owner further argued
that, as the insurer was subrogated in the insured's legal position – as if it
was the contracting party of the maritime carriage – it should consequently be
subject to the contractual rules agreed to by the insured.
The insurer denied its agreement
to the arbitration clause, holding that:
·
the insurer was not party to the carriage contract; and
·
the jurisdiction clause therefore did not apply.
Rather, the insurer argued that
the Brazilian courts – where the insurer and defendant were domiciled – had
jurisdiction.
In April 2016 the court ruled
that – under Brazilian civil law – when paying indemnity to an insured, the insurer
subrogates itself to the insured's rights and obligations, within the limits of
the subjacent contract by which the insurer assumed the insured's legal
position.
For this reason, the claim of
Brazilian jurisdiction was dismissed by the first-instance court in view of the
arbitration clause included in the bill of lading.
On appeal, the decision was
upheld. The 38th Chamber of the Sao Paulo Court of Appeals (second instance)
ruled that, by virtue of subrogation, the insurer was subject to all of the
insured's ancillary rights and obligations, including the carriage contract's
arbitration clause.
The decision sets an important
precedent, particularly as it shows the effectiveness of the new Code of Civil
Procedure, which prioritizes judicial precedents. The decision also reinforces
the need for insurers to assess all aspects and limits of an underlying
carriage contract entered into by the insured before issuing insurance cover.
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