Danish jurisdiction

Case no. 5/2015
Order made on 9 October 2017

The Port of Assens
vs.
Navigators Management (UK) Limited

The case concerns a claim for compensation for the damage to the Port of Assens caused in the autumn of 2007. The Port of Assens, as the injured party, brought an action before the Maritime and Commercial Court directly against the liability insurer for the company causing the loss (the policyholder), as the latter had gone into liquidation. Among the issues raised in the case was the question of jurisdiction, and this was excluded for a separate hearing. In its judgment of 22 December 2014, the Maritime and Commercial Court dismissed the case on the grounds that England had jurisdiction in this case and not Denmark according to an agreement on jurisdiction in the insurance agreement between the insurer and the policyholder.

The main issue before the Supreme Court was whether the Port of Assens was entitled to bring an action directly against the insurance company of the company causing the loss pursuant to section 95(2) of the Danish Insurance Contracts Act, or whether the Port of Assens was bound by the agreement on jurisdiction in the insurance agreement between the company causing the loss and the insurance company.

During the case, the Supreme Court referred a question to the EU Court of Justice for a preliminary ruling regarding the interpretation of the jurisdiction rules of the Brussels I Regulation.

The Supreme Court stated that the EU Court of Justice in its judgment of 13 July 2017 (C-368/16) had found, among other things, that the jurisdiction rules of the Regulation must be interpreted as meaning that an agreement on jurisdiction in an agreement between an insurer and a policyholder is not binding on an injured party who wishes to bring an action directly against the insurer before its home court or before the courts for the place where the harmful event occurred, and that the judgment does not contain any reservations to the effect that, for this to apply, the injured party must be regarded as an economically or legally weaker party in this particular case.

Accordingly, the Supreme Court held that it follows from the Brussels I Regulation that the Port of Assens was entitled to bring an action before the Danish courts, if it is permitted to bring an action directly against the insurance company under the national rules applicable to the case.

As the Port of Assens’ claim was most closely linked to Denmark, the Supreme Court found that the issue of whether the Port of Assens was permitted to bring an action directly against Navigators Management must be settled according to Danish law, and that section 95(2) of the Danish Insurance Contracts Act thus applied.

Against this background, the Supreme Court concluded that the Port of Assens was correct to bring the action in Denmark, and thus set aside the judgment of the Maritime and Commercial Court and remitted the case to be heard on its merits before the Maritime and Commercial Court.