Direct Claims Against Insurers And Anti-Suit Injunctions

In Shipowners' Mutual Protection & Indemnity Association (Luxembourg) -v- Containerships Denizcilik Nakliyat ve Ticaret AS (The "Yusuf Cepnioglu") [2016] EWCA Civ. 386, the Court of Appeal considered the juridical nature of a foreign statute which gives a victim (in this case, a charterer) the right to sue a defendant's insurer (in this case, an owners' club) directly without first suing the insured, and in the circumstances of the case, whether it was appropriate to uphold an anti-suit injunction ("ASI") which had been made by the court below.

Reliance was placed on the previous decisions dealing with similar foreign legislation, such as The "Hari Bhum" (No. 1) [2004] 1 Lloyd's Rep. 206; and [2005] 1 Lloyd's Rep. 67, which considered the provisions of the Finnish Insurance Contract Act 1994 and The "Prestige" (No. 2) [2014] 1 Lloyd's Rep 309 and [2015] 2 Lloyd's Rep. 33 concerning the Spanish Penal Code.

In this case, the Court was looking at Turkish law, which provided, amongst other things, that "Article 1478 - the victim may claim its loss up to the insured sum directly from the insurer provided that the claim is brought within the prescription period to the insurance contract".

The Court determined that the question was whether the Charterers' right to sue the Club directly was essentially a contractual right, governed by English law as the proper law of the contract, or an independent right, governed by Turkish law.

The Judge had made a number of findings of fact, the majority of which showed that the victim's rights under Turkish law were to a large extent circumscribed by the contractual provisions between the Club and its Member. The Court found that the right that Charterers were exercising should be classified as a contractual right and...