This stipulation therefore includes three components; First, that the law that will apply to the agreement is English law; second, that the courts of England and Wales have exclusive jurisdiction to hear any dispute arising out of the guarantee regime; Third, the parties give their consent to the jurisdiction irrevocably.
From the words "exclusive jurisdiction" It appears that this is a unique jurisdiction clause, which states that the jurisdiction is vested in the court in London (Compare to the jurisdiction stipulation discussed by other municipal applications 4866/00 State of Israel v. Lloyds Underwriters, IsrSC 56(4) 433 (2002) and also used the term "exclusive jurisdiction"), and there is no dispute between the parties.
- The main question is whether the disputes in this case are included in the stipulation, i.e. whether the indemnity claim is included in the definition "any dispute arising out of this agreement".
It seems to me that the answer to this is no. As we have seen above, the claim for participation between the interested parties deals with the relationships between the cargo owners and the shipowners, the validity of the declaration and the division of costs to the occurrence of the risk between them. The letter of undertaking signed by the plaintiffs deals with the division of risk among the interested parties only. It is addressed according to its language (see the introduction) to the owner of the vessel and to all those interested in the voyage of the ship – "[...] "And other parties to the adventure as their interest may appear". According to its wording, the jurisdiction clause deals only with disputes arising from the letter of undertaking out of this agreement . The indemnity claim does not stem from the letter of undertaking, but rather from the plaintiffs' claims that they suffered "damage" as a result of the negligence of the ship's owner, which allowed the ship to embark on its voyage even though it was not qualified to do so.
And dove. Claims by a cargo owner regarding the liability of the vessel owner for the event that caused the risk due to which the general damage was declared may also serve as a basis for claims against the duty to participate, but this is not a complete identification of the claims, since there may be situations in which a cargo owner will be forced to contribute his share to the payment of the general damage, even if the vessel owner was negligent (see and compare Heftza claim 53012-12-10 Solel-Boneh in Tax Appeal v . MV Oluk (January 24, 2013); Hefza's claim 32931-09-18 , supra (application for leave to appeal the decision was denied); Alize 1954 & Another v. Allianz Elementar Versicherungs AG & Others, [2021] UKSC 51).
- The result of the aforesaid is that there is no reason to delay the proceedings in the indemnity claim. Thus the proceeding did not end, since in the indemnity claim the plaintiffs petitioned only for declaratory relief regarding their right to indemnification. Although a claim in the matter was not made, the rule is that declaratory relief should not be claimed where monetary relief can be claimed, even if it is conditional monetary relief (Civil Appeal 227/77 Barclays Discount Bank in Tax Appeal v. Brenner, IsrSC 32(1) 085 (1977); Civil Appeal 1049/94 Dor Energy in Tax Appeal v. Hamdan, IsrSC 50(5) 820, 829 (1997); Civil Appeal Authority 7200/20 Yoar Elzo Investments in a Tax Appeal vs. Aura Israel Development and Investments Ltd., paragraphs 30-31 (6/4/2021)).
- Since the plaintiffs did not specify in their statement of claim the "damage", i.e., the payments they must pay as part of the requirement to participate in general damage, they must correct and fill in the gaps.
Conclusion
- In light of all of the above, I reject the motion to dismiss the additional claim in limine due to lack of substantive jurisdiction and reject the request for a stay of proceedings due to the existence of a foreign jurisdiction clause.
However, and taking into account that the plaintiffs sought to suffice with an indemnity claim and taking into account that the amount of indemnity claimed was not specified, I permit the plaintiffs to submit, within 30 days, an amended statement of claim.