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Amin Rasheed Shipping Corp V. Kuwaiti Insurance Co. Notes

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FACTS The plaintiffs, a Liberian corporation, whose business was carried on from Dubai, owned a small cargo vessel which they insured against war and marine risks under a policy issued by the defendants, a Kuwaiti insurance company. The form of the policy was based upon the Lloyd's standard form of marine policy with modifications but gave Kuwait as the place of issue and provided for claims to be payable there. The policy was on the insurers' standard printed form of hull policy. It was in the English language only. The wording followed meticulously (with minor and in my view immaterial omissions of express references to London) that of the Lloyd's S.G. policy scheduled to the Marine Insurance Act

1906. There was no provision in the policy as to the law which was to govern the contract. The vessel was detained by Saudi Arabian authorities and the master and crew were imprisoned for some months apparently in connection with a claim, denied by the plaintiffs, that the vessel had been engaged in an attempt to smuggle oil. The plaintiffs claimed for the total constructive loss of the vessel under the Institute War and Strike Clauses which formed part of the policy. Bingham J. set aside leave which had been granted to the plaintiffs under R.S.C., Ord. 11, r. 1 (1) (f) (iii) 1 on their ex parte application to issue a writ and serve notice of it on the defendants in Kuwait. RSC RULE 11(1)(F): "if the action begun by the writ is brought against a defendant not domiciled or ordinarily resident in Scotland to enforce… a contract
… being… a contract which… (iii) is by its terms, or by implication, governed by English law…" RSC Rule 4(2): "No such leave shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction under this Order." HOLDING LORD DIPLOCK Law applicable to determine applicable law: My Lords, the jurisdiction point is one that falls to be determined by English law and by English law alone. The relevant rules to be applied to its determination are the English rules of conflict of laws, not the conflict rules of any other country - which may or may not be the same as those of England. In particular, so far as the jurisdiction point itself is concerned, it is immaterial whether the courts of the only obvious rival forum, a Kuwaiti court, would take the same view as an English court as to what was the proper law of the policy. The relevance of this only arises if and when one reaches the discretion point. What is the proper law?

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