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DORNOCH V. WESTMINSTER INTERNATIONAL BV FACTS The mega-size trailer hopper dredger, 'WD Fairway', to which I shall refer hereafter as 'the vessel', became a constructive total loss (CTL) as a result of a collision off China in March 2007. The vessel was at the time owned by the first defendant, one of the companies in the Boskalis group. Insurance Contracts: The vessel's hull and machinery cover was written in two layers. The primary layer of up to EUR 5m was underwritten by seven insurance companies of which six are incorporated in the Netherlands. I shall call them 'the primary underwriters'. The policy to which these underwriters subscribed is governed by English law but contains a Dutch exclusive jurisdiction clause. The excess policy, EUR 145m in excess of EUR 5m, was written by the 15 claimants, predominantly but not exclusively London market underwriters. The excess policy is likewise governed by English law. Dispute: A dispute has arisen between the assured and the underwriters as to the realisation of the value of the wreck. The fact that this has here not so far proved possible has brought into question the precise nature of underwriters' rights in this regard and, in particular, whether they are such as to entitle underwriters to exercise control over the manner in which the residual value of the wreck is ascertained. It is common ground that underwriters, having paid for a CTL and settled the salvors' claim against the vessel, are entitled to the residual open market value of the wreck. However there is acute controversy between assured and underwriters as to what is that residual value. Sale by the Owners: It is against that background that the insured owners of the vessel, the first defendant, took the equally unprecedented step of selling her, or attempting so to do, without reference to underwriters and, therefore, without their consent. On 9 January 2009 the first defendant concluded with the fourth defendant a memorandum of agreement for the sale of the vessel and a protocol of delivery and acceptance of the vessel was likewise executed by both parties. The first and fourth defendants are related companies, in the sense that it is conceded that the fourth defendant is in the majority ownership of companies in the Boskalis group. The consideration for the sale was EUR 1,000. The first defendant admits, it could hardly sensibly deny, that the purpose of the sale was to prevent underwriters from themselves realising the open market value of the vessel. QUESTION
What is (or are) the relevant system (or systems) of law for determining the incidence of proprietary interests in the vessel prior to, at the time of, and after the purported transfer of the vessel to the fourth defendant? (a) English law, as the law of the excess policy and of the primary policy or the lex fori? (b) The lex situs?
HOLDING Renvoi Issue As recorded above all were agreed at the hearing before me that the answer to be given to this question, at any rate by a court of first instance, is the lex situs. That is the effect of Dicey, Morris and Collins r 124, set out at , above. However there is disagreement as to what is meant in this context by the lex situs. The claimants say that in this context reference to the lex situs includes any choice of law or conflict of laws rules of the situs. The defendants say that reference to the lex situs in this context is simply to the domestic law of the situs. Professor Adrian Briggs, in a vigorous contribution to the debate in 'Decisions of the British Courts in 2007' (2007) BYIL 628 suggests, p 629, that the English court should ask itself whether the lex situs rule, which English private international law seeks to apply, is more faithfully given effect by referring to the domestic law of the situs or to the private international law of the situs. Without knowing the content of either, indeed without at this stage identifying the lex situs at all, that inquiry can only be undertaken in a limited fashion. A similar point is made in Dicey, Morris and Collins p 83 (para 4023) where it is said: 'The doctrine [renvoi] should not therefore be invoked unless the object of the English conflict rule in referring to a foreign law will on balance be better served by construing the reference to mean the conflict rules of that law.' Islamic Republic of Iran v. Berend: The Republic argued that application of the French conflict rules would bring into play an exception to the traditional French rule and application of the law of Iran as the law of the state of origin of the fragment. Eady J followed Millett J's approach. He saw no principled reason to draw a distinction for this purpose between the context of title to shares and the context of title to a tangible moveable object. He saw no reason 'to hold, for the first time, that public policy requires English law to introduce the notion of renvoi into the determination of title to moveables'. General Trend in abolition of Renvoi:
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