In an important decision handed down, the Commercial Court accepted that it had applicable jurisdiction to hear claims arising out of the loss of a superyacht which had fallen from the deck of a transporting vessel in heavy weather conditions.
The Italian owner of the yacht had brought proceedings in Italy, despite having signed a contract containing an exclusive applicable jurisdiction clause in favour of the English courts, asserting that as a consumer he was entitled to sue in the courts of his own domicile.
The judgment looks, among other things, at the competing positions and arguments under the Brussels I (Recast) Regulation, including the test to be applied for determining when someone is a “consumer” under the Regulation and what constitutes a “contract of transport”, the parties to which are excluded from the protections afforded to consumers in the Regulation. The judgment also discusses the extent to which the servant or agent of a party to a contract containing both a Himalaya Clause and an exclusive jurisdiction clause can rely on those terms to found jurisdiction as against the other party to the contract.