“1.1. (c) “The Services” means the provision of or doing or taking of one some or all of (1) representation of the Client by the Company, including claims handling and settling;(2) actions by the Company on behalf of the Client to achieve a Recovery for the Client; (3) the giving of advice and opinions and consulting services to the Client; (4) the conduct of investigations for the benefit of and on behalf of the Client, whether in pursuit of a Recovery or not; (5) negotiation with and reaching agreement with others on behalf of the Client; (6) the appointment of others on behalf of the Client; and (7) preparation (as agents) for litigation or Alternative Dispute Resolution process involving the Client. (d) ‘Recovery’ means any type of claim concerning another person either pursued or resisted, and or subsequently agreed or settled, by the Company on behalf of the Client, in order to obtain payment of monies due to the Client from such other person or reduce the amount of any payment of monies to be made by the Client to such other person and includes where appropriate the amounts of money so obtained or reduced. …… 6.1. The Client shall notify the Company forthwith in writing of any payments, offers of payments or any other correspondence arising in relation to any appointment of the Company, which are received directly by the client. … 6.5. The Client undertakes not to discuss or negotiate any matter in relation to which the Company has been appointed with any other person whether directly or indirectly. … 6.7. The Client undertakes promptly to pay the Company’s fees, expenses and disbursements in accordance with the terms and conditions contained herein. 6.8. The Client undertakes and agrees that any Recovery on its behalf by the Company will be received direct by the Company into the Company’s bank account and not be directed to be paid or withheld by any other person. … 7.1. In the event that the Company considers it appropriate to instruct, engage or retain any Service Support Provider, whether as an agent or as an independent contractor, for any purpose connected with the Services the Company has agreed to provide to the Client herein, the Client fully authorises the Company to do the same and agrees that all such persons shall be engaged instructed or retained by the Company acting only in its capacity as agent for the Client and that the Client remains directly liable to all such persons in relation to any services provided by them. … 9.7. In those cases where the Company’s fee is commission based the Company’s usual practice is to deduct its fees from any Recovery received by it and thereafter to present a statement to the Client of the net Recovery payable to the Client, taking account of such deduction. Following presentation of the statement the net sum will be paid to the Client and no invoice will usually be issued. 11 TERMINATION 11.1. This agreement and any appointment of the Company by the Client in accordance with this agreement will continue until all the Services under this agreement or the subject of such appointment have been provided, unless this agreement is terminated earlier in accordance with the following terms. 11.2. Save in Recovery Cases as appears below, either party may terminate this agreement or any instruction pursuant to it at any time by giving 14 days written notice (by letter or fax, specifically excluding e-mail) of termination, which in the case of termination by the Client must be received at the Company’s registered address. Upon any such termination the Client’s liability for the Company’s fees (based on the scale(s) applicable) will be as set out below. In addition, following any termination, the Client must settle any Service Support Provider’s or any third parties claims for payment, fees and expenses within 7 days of receipt of any relevant invoice from that person. Non-Recovery Cases 11.3. The Client shall pay the fees incurred up to termination as per the fee scale of the Company current and applicable at the time of termination. Recovery Cases 11.4. In all cases in which this agreement relates in whole or in part to a Recovery, the appointment of the Company by the Client in accordance with this agreement to provide the Services in relation to that Recovery and as its agent is irrevocable by the Client but may be terminated by the Company in accordance with Clause 11.2 above. 11.5. If this agreement and or the Company’s appointment or instruction is, for whatever cause, terminated before the Company has concluded or received a Recovery, the Client will, save as provided herein, be obliged to pay the Company’s fees immediately, based on the amount the Company reasonably expected to recover alternatively on a quantum meruit basis, whichever results in the higher figure. 11.6. If, prior to termination, the Company or any Service Support Provider instructed by it on behalf of the Client, has negotiated a settlement proposal of the Client’s claims or liabilities at a level the Company has recommended that the Client accepts, but the Client does not, the Client will be at liberty to pursue the Recovery independently but will be obliged to pay the Company’s fees based on the recommended figure alternatively on a quantum meruit basis, whichever results in the higher figure. 11.7. In the event that the reason for termination is the Client’s impecuniosity or insolvency a right exercisable against all persons to pursue the Recovery which is the subject of this agreement shall automatically vest in the Company and any monies recovered as a result will, subject to any applicable provisions of insolvency law which may prevent the same, be the property of the Company once recovered but in such cases any of the Client’s liabilities, actual or potential, associated with the Recovery shall, to the fullest extent permitted by any applicable law, remain those of the Client. 11.8. In any of the above cases, any sums recovered directly by the Client from any persons which would otherwise comprise a Recovery, and whether before or after termination, must be paid in the first instance into the Company’s bank account. After deduction of the Company’s fees and any other expenses in accordance with the provisions of this agreement, the balance will then be remitted to the Client.”
“To: The Owners and/or Underwriters of the cargo detailed below (“the Cargo Interests”) C/o Dolphin Maritime & Aviation Services Ltd (its address was then given)” (its address was then given)”
“With reference to the above we understand that you approached our clients directly on this matter some time ago. Leaving aside the questionable conduct of your actions, we understand an agreement was reached w/p and subject to contract to settle all the claims in respect of this matter at$8.5m . Whilst we reserve our position in respect of your tortious interferences in our contractual relations with our clients (see Lumley v Gye), nevertheless you will no doubt recall that the LOU issued by the Swedish Club, copy attached for your ease of reference, requires payment to be made by us. Please note that Dolphin are instructed by cargo owners and cargo underwriters and these instructions are not revocable in circumstances such as this. You will appreciate that we hold you responsible in respect of any failure to comply with the terms of LOU. …. For your reference, our bank details for payment to be made are as follows- Dolphin Maritime & Aviation Services Limited National Westminster Bank Plc P O Box 4 UQ 30 North Audley Street London, W1A 4UQ Sort Code: 50-41-06 Swift Code: NWBKGB2LXXX For US$ only: Account no: 01717359 IBAN No: GB18NWBK60730101717359 For GBP and ALL other currencies: Account no: 12444367 IBAN No: GB85nwbk50410612444367”
“For your information, our terms and conditions entitle us to charge a recovery fee based upon approx 10% of the settlement, as well as time and trouble fees for the casualty assistance. Mr Greene has also been advised that the instructions from our clients were irrevocable. Regrettably, given the substantial fees at stake and the commercial damage this has caused to us with our clients, we have had no alternative other than to place the Club on notice that our rights are reserved in respect of any tortious interference by the Club on our contract with our clients. As you may be aware, the LOU provided by the Swedish Club provides for payment of any settlement funds to be made via Dolphin, as do the terms and conditions on which we are instructed. However it seems that the draft settlement agreement provides for funds to be paid directly from the Swedish Club to the cargo underwriters, bypassing Dolphin. Accordingly, to protect the interests of our company we have been obliged to seek legal advice and unless this matter is resolved, we intend to bring an action for damages against your Association, not only in respect of the outstanding fees but also for the loss of business caused by this interference”
“at the place where the damage occurred or the place of the event giving rise to it”
“ 51. In addition, many of the problems which certain commentators believe they perceive in the Mines de Potasse d’Alsace judgment derive from those authors’ – in my opinion incorrect – view that the solution adopted in that judgment leads to the possibility of jurisdiction being attributed to the court in whose judicial district the victim has his domicile. Here again, that view – which appears to reveal confusion between the place where the damage occurs (the very words used in the judgment) and the place where the damage is suffered – would have the disadvantage of conflicting with the line of authority usually followed on that point by the courts of the Member States. 52. Accordingly, the foregoing considerations lead me to consider that the place where the damage occurs is, for indirect victims, the place where the initial damage manifested itself, in other words, the place where the damage to the direct victim occurred.”
“20 It follows from the foregoing considerations that although, by virtue of a previous judgment of the Court (in Mines de Potasse d’Alsace, cited above),the expression “place where the harmful event occurred” contained in article 5 (3) of the Convention may refer to the place where the damage occurred, the latter concept can be understood only as indicating the place where the event giving rise to the damage, and entailing tortious, delictual or quasi-delictual liability, directly produced its harmful effects upon the person who is the immediate victim of that event. 21 Moreover, whilst the place where the initial damage manifested itself is usually closely related to the other components of the liability, in most cases the domicile of the indirect victim is not so related. 22 It must therefore be stated in reply to the question submitted by the national court that the rule on jurisdiction laid down inArticle 5(3) of the Convention cannot be interpreted as permitting the plaintiff pleading damage which he claims to be the consequence of the harm suffered by other persons who were direct victims of the harmful act to bring proceedings against the perpetrator of that act in the courts of the place in which he himself ascertained the damage to his assets.”
“22. Let us be clear: the exclusion of the courts of the place where the damage is ascertained – that is to say, where the harm is suffered, not where it occurred – must apply both to the direct victim and to the indirect victim, otherwise the jurisdiction of the courts for the place where the plaintiff lives, whicharticle 3 of the Convention specifically takes care to remove, would be revived. … 26. That case [Bier] concerned a complex situation in which the causal event and the harmful consequences occurred, from the outset, in two different contracting states. Here, by contrast, as is rightly pointed out by the United Kingdom Government, both the causal event (namely the conduct imputed to the employees of Lloyds Bank) and the initial damage, (sequestration of the promissory notes and imprisonment) occurred in the United Kingdom. Only the alleged consequential damage (financial losses) could have been suffered in Italy. 27. We are thus dealing with a particular situation in which the causal event and the direct harmful consequences are located in a single territory and that initial damage adversely affected the victim’s assets in another contracting state. 28. Although the court has not been called on to settle such a question directly, the basis for an answer is undeniably to be found in its judgments cited above since we are merely faced once more with the distinction which is of essential importance for the purpose of determining jurisdiction between the place where the damage arises and the place where it is suffered. 29. The court regarded as relevant to the determination of the court of competent jurisdiction, in the first of its judgments on the issue, only the damage that had occurred. More clearly still, in Dumez [1990] E.C.R. 1-49 it displayed its hostility, it seems to me, to the taking into consideration of later financial consequences, by referring, at p. 80, para.21, to “the place where the initial damage manifested itself,” that is to say, the place where the damage occurred. 30. Now, to confer jurisdiction on the court in the place where the financial losses were ascertained would be tantamount to disregarding the specificity of the place of occurrence as the criterion for the conferment of jurisdiction by placing it on the same footing as the place where the damage is suffered. 31. That broader approach would thus uphold the forum actoris, since a victim generally suffers harm at the place where he is domiciled. Such a result would be manifestly contrary toarticle 5 of the Convention , which, as the court held, is intended to meet the requirements of the proper administration of justice.”
“14. Whilst it is thus recognised that the term “place where the harmful event occurred” within the meaning ofarticle 5(3) of the Convention may cover both the place where the damage occurred and the place of the event giving rise to it, that term cannot, however, be construed so extensively as to encompass any place where the adverse consequences of an event that has already caused actual damage elsewhere can be felt. 15. Consequently, that term cannot be construed as including the place where, as in the present case, the victim claims to have suffered financial damage consequential on initial damage arising and suffered by him in another contracting state.”
“48. In my opinion, the abovementioned case-law shows that, in order to determine the ‘place where the damage occurred’, it is essential to define the relevant ‘damage’. ‘Damage’ means any harm to the property or person of the plaintiff, where it relates to the event giving rise to the damage, that is to say to the illegal behaviour attributed to the defendant by a direct and causal link, to the exclusion of indirect, more remote damage or damage which is suffered by an indirect victim. Consequently, ‘the place where the damage occurred’ is that where the event giving rise to the damage caused injury, within the above meaning, to the plaintiff. 49 The above case-law provides sufficient elements to determine the ‘place where the damage occurred’ in the case where the damage occurs in the course of international carriage of good, as in the present case. 50. First of all, it must be observed that the basic obligation imposed on every carrier is to load the goods at a given point and to deliver them intact at another point. As a result, carriers are, in principle, liable for any damage caused to the goods between the departure and the arrival points of the voyage that is to say for the entire duration of the voyage. ”
“33. As the Advocate General emphasises in points 54 -56 of his Opinion, in an international transport operation of the kind at issue in the main proceedings the place where the event giving rise to the damage occurred may be difficult or indeed impossible to determine. In such circumstances, it will be for the consignee of the damaged goods to bring the actual maritime carrier before the courts for the place where the damage occurred. It must be pointed out in that regard that, in an international transport operation of the kind at issue in the main proceedings, the place where the damage occurred cannot be either the place of final delivery, which, as the Commission rightly pointed out, can be changed in mid-voyage, or the place where the damage was ascertained. 34. To allow the consignee to bring the actual maritime carrier before the courts for the place of final delivery or before those for the place where the damage was ascertained would in most cases mean attributing jurisdiction to the courts for the place of the plaintiff’s domicile, whereas the authors of the Convention demonstrated their opposition to such attribution of jurisdiction otherwise than in the cases for which it expressly provides (see, to that effect, Dumez France and Tracoba, cited above, paragraphs 16 and 19, andCase C-89/91 Shearson Lehman Hutton v TVB[1993] ECR I -139 , paragraph 17). Furthermore, such an interpretation of the Convention would make the determination of the competent court depend on uncertain factors, which would be incompatible with the objective of the Convention which is to provide for a clear and certain attribution of jurisdiction: see, to that effect, Marinari, paragraph 19, and Handte, paragraph 19, both cited above). 35. In those circumstances, the place where the damage arose in the case of an international transport operation of the kind at issue in the main proceedings can only be the place where the actual maritime carrier was to deliver the goods. 36. That place meets the requirements of foreseeability and certainty imposed by the Convention and displays a particularly close connecting factor with the dispute in the main proceedings, so that the attribution of jurisdiction to the courts for that place is justified by reasons relating to the sound administration of justice and the efficacious conduct of proceedings.”
“It is by reference to the loss of those goods that the damages are in my view primarily pleaded ….even if there is also an alternative plea… in terms of the unpaid price (a plea which in any event may have been intended for the claim in breach of contract). In truth, even though Domicrest would have suffered no loss if Swiss Bank Corporation, or Interglobal had paid the price of those goods, nevertheless it has to be remembered that the remedy in negligent mis-statement is not, as it is in contract, to be put in the same position as if the contract had been performed but depends on the answer to the question: what would have happened if the negligent mis-statement had not been made? In that case, the goods would not have been released before payment and this lost to Domcirest. The essence of the complaint is in any event that the goods were released prior to payment on the strength of Swiss Bank Corporation’s representations and contrary to Domicrest’s trading policy. It seems to me that this is consistent with the decision in Marinari v Lloyd’s Bank plc[1966] QB 217 .”