“For our compliance purposes, please kindly review the Important Information detailed below which is applicable to any placement effected via the Aon Global Broking Centre London. … Important Information We would like to draw your attention to the Client Information Document and Terms of Business Agreement (TOBA) attached.”
“I have read and reviewed the information attached. I confirm being in full understanding of this information.”
“Policy is subject to the following: - Geographical exclusion clause LSW617H – note this include [sic] Colombia and Peru. We have discussed with the underwriter and any flights to these destinations will be subject to their agreement. … Please explain the client that we have proceeded to obtain the formal quote based on USD 25,000,000 limit … If the client requires a higher limit please advise urgently.”
“The original indication for a liability limit of USD 50m was USD120,000 plus 10% additional premium for war liabilities AVN 52, totalling USD132,000For a USD25m limit, the price is USD125,000 (including war liabilities up to USD25m). So the saving is USD7,000 for the lower limitWe have already advised underwriters that the limit required is USD25m, however if you would prefer to purchase a higher limit of USD50m please confirm and we will re-negotiate and will confirm the premium. We can however do this at any time during the policy period if required … Trust this explains and await your advices regarding the limit of liability”
“For the record would suggest that you advise LaMia that the USD 25,000,000 limit may be all that is required to satisfy local regulations, however this is a low limit and we would encourage them to buy a higher limit of liability if at all possible.”
“Aon is not an insurer (or reinsurer) of any of these coverages. Except in the case of Aon's fraud or deliberate misstatement, this Certificate is issued without any liability in any circumstances on the part of Aon UK Limited, or the members of the Aon group of companies or their respective directors and staff, past and present. Claims against Aon in respect of or arising out of this Certificate must be brought exclusively in the English courts and will be governed by English law.”
“Bisa shall decline coverage under the Insurance. Without Prejudice and considering the humanitarian effects of the Event [ie, the Accident] Reinsurers wish to establish and administer, without any admission of liability under the Reinsurance Contract, a humanitarian assistance fund for the benefit of the 68 Passengers affected by the accident and entitled to compensation, and otherwise to relieve Bisa of certain Other obligations, costs and expenses which may, but for this Deed, have been subject to an indemnity under the Reinsurance Contract. In consideration of this, Bisa now wishes to fully and irrevocably release and waive any rights it may have under the Reinsurance Contract in respect of the Event.”
“Under this Deed, Releasor [Bisa and, broadly, affiliates] irrevocably and unconditionally releases and discharges and forever waives any and all rights, liabilities, actions, claims, demands of whatever kind or nature (including, without limitation, any causes of action arising under the laws of Bolivia, Brazil, Colombia, Venezuela or any other jurisdiction) whether or not presently known to the Parties or to the law, certain or contingent reported or unreported, suspected or unsuspected by Releasor, which Releasor now owns or holds, or has at any time hereto before owned or held, or which may hereafter accrue, pursuant to or arising under or in respect of the Reinsurance Contract against the Releasees [the Reinsurers and, broadly, affiliates], or any of them, arising out of, resulting from, or connected in any manner of whatever kind or nature with, the Event.”
“GOVERNING LAW This Deed shall be governed by and construed in accordance with English law. The Parties agree that the English courts shalt have exclusive jurisdiction to adjudicate any dispute which arises in connection with this Deed.”
“The investigation identified the following contributing factors: - Premature configuration of the aircraft for landing during the descent over GEMLI holding pattern, considering the absence of thrust, this configuration affected the plane's gliding distance to the runway of Rionegro airport. - Latent deficiencies in the planning and execution of Non-Regular Transport flights by the aircraft operator, related to the insufficient supply of the amount of fuel required. - Specific deficiencies in the flight planning of CP 2339, by the operator of the aircraft. - Lack of supervision and operational control of the flight by the Operator, who did not supervise planning of the flight, its execution, or maintaining a follow-up of the flight that would have allowed providing support to the crew with decisions making. - Absence of timely calls for "priority", or declaring an "emergency" or others by the aircraft crew members during the flight, and especially when fuel depletion was imminent in the descent phase and when performing a holding pattern which would have alerted air traffic services to provide the necessary support. - Organizational and operational deviations on the part of the Operator in the application of fuel management procedures, as it did not comply in practice with the approval given by the Bolivian DGAC in the process of certification of the company. - Delay for CP 2933 approach clearance to Rionegro, caused by its late request for priority, and its late declaration of fuel emergency, these added to the traffic density holding over VOR RNG.”
“12 I have had regard to the principles set out in Ust-Kamenogorsk Hydropower Plant JSC v AES Kamenogorsk Hydropower Plant LLP[2013] UKSC 35 at [20], and SAS Institute Inc v World Programming Limited[2020] EWCA Civ 599 at [90] and following. I bear in mind in particular the need to proceed with caution in the light of considerations of comity, especially when granting an injunction that is not sought in order to enforce an arbitration or exclusive jurisdiction clause. 13 I am satisfied that there is a good arguable case that proceedings against the applicants in the courts of Miami would be vexatious and oppressive and that an injunction is necessary to protect the jurisdiction of the English court, for the following reasons: (1) The English court has a sufficient interest in the matter because England is the natural forum for any claims against the applicants. All but one of the applicants is an English company domiciled in England. The tenth claimant was domiciled in England at the time of the accident but has since redomiciled in Luxembourg. Permission has already been given for these proceedings to be served out of the jurisdiction and the question of the applicants’ liability is already before this court in that sense. The cause of the accident itself is no longer in issue. (2) It appears that the brokers, Aon, against whom the Miami plaintiffs assert related claims, rely on an exclusive jurisdiction clause in their contracts with LaMia, and Aon have commenced proceedings in England too. (3) Any claim by the Miami plaintiffs against the applicants must arise in connection with the reinsurance contract, since the applicants have no other connection with the accident, and therefore must address the validity and effect of the deed of release. That deed is subject to English law and the exclusive jurisdiction of the English courts. This is the position whether the Miami plaintiffs are claiming against the applicants as assignees of LaMia’s rights against BISA, as assignees of BISA’s rights against the reinsurers, or on any other basis. (4) The Miami plaintiffs, in their11 August 2020 second amended complaint, base their claims on breach of contract and the inclusion of unconscionable terms and conditions in what is variously described as the flight insurance policy and the reinsurance policy; and on common law bad faith in connection with the flight insurance and/or reinsurance policies. (5) However, neither the Miami plaintiffs nor LaMia, as insured carrier, were parties to any contract with the applicants. Insofar as they claim as assignees, the assignment provided for in the settlement agreement between the Miami plaintiffs and the Miami defendants was of claims against the brokers and associated persons, including the brokers’ own insurers: not of claims against BISA, as insurer, still less against the applicants, as reinsurers. On the contrary, the whole premise of those claims against the brokers would seem to be that, as clause 4.2 of the settlement agreement recorded: “Given the language of flight insurance policy, there is no liability coverage for the subject accident under the flight insurance policy.”
“5. Turning to the requirements for anti-suit relief, it is obviously necessary for this court to have jurisdiction over the Individuals if it is to grant any form of injunctive relief against them. Cockerill J has already held, when granting permission to serve the application for antisuit relief out of the jurisdiction, that the requirements for establishing jurisdiction have been established to the requisite standard of arguability and I do not propose to revisit that conclusion. Second, Aon must establish to a high degree of probability, as it is sometimes put, that the claims that the Individuals seek to assert against them in the Florida proceedings fall within the exclusive jurisdiction clause in the TOBA, which is binding on them. On the evidence before me it is clear that LaMia expressly consented to the TOBA as regulating and governing the service Aon was providing in relation to the placing of these insurances. Mr Mitchell has taken me to contemporary email exchanges making that clear. The wording of the jurisdiction clause in the TOBA is in the widest possible form with the usual wide connectors of arising out of or relating to. I accept that the Individuals were not themselves, of course, involved in the dealings with Aon that culminated in their work in relation to the insurances, but Mr Mitchell has taken me through the Florida complaint, and I am satisfied, that whether put expressly in contract or in tort, the claims which the Individuals are seeking to advance are premised on the alleged non-performance or defective performance of the contractual services which Aon had agreed to provide pursuant to the TOBA. Whichever legal theory one adopts - whether those claims are brought by the Individuals as assignees or as third party beneficiaries of contractual rights or whether one looks at the matter more generally as a complaint being brought about failure to perform a contract which under some legal theory gives a third party to the contract a right of complaint - I am satisfied to a high degree of probability that those claims cannot be asserted without at the same time subjecting those third parties to the condition which attaches to the rights which they are in substance seeking to enforce, namely the condition that they be brought only within this jurisdiction. 6 Having satisfied myself to a high probability on the information before me that the claims brought by the Individuals fall within the contractual promise to sue here, and that the Individuals cannot assert those claims without at the same time complying with that promise, the authorities make it clear that I should grant an antisuit injunction unless there are strong reasons for not doing so. I have been unable to detect any such strong reason in this case. My attention has been drawn to the fact that the Florida proceedings have been underway for a substantial period and it might be said that Aon UK Limited could have moved for injunctive relief before now. However on the basis of Mr Foss’s witness statement it is clear that there has been activity in relation to the claims, and active engagement with them, and in particular that there was an understandable desire on Aon UK Limited’s part to seek to resolve these issues at an on notice hearing which would have been preferable. It has been the recent developments in Florida which have necessitated the urgent application today.”
“In this ‘derived rights’ context, it is now clear (at least to Court of Appeal level) that an application for ASI relief will be approached by reference to the same decision-making framework as that which applies in a wholly contractual context.”
“In my opinion, the answer is that a tort victim would be entitled to bring a direct claim for negligence against the tortfeasor’s insurance broker. See generally Hamer v. Kahn, 404 So. 2d 847, 850 (Fla. 4th DCA 1981). Over five decades ago, the Supreme Court of Florida established that a third party beneficiary, who is not a formal party to a contract, may sue for damages as a result of the acts of one of the parties to the contract. See Thompson v. Commercial Union Ins. Co. of New York ,250 So. 2d 259 (Fla. 1971). Plaintiffs’ allegations against AON in the Draft Amended Complaint lawsuit is not based under the insurance contract but for negligence in the procurement of insurance. Under the reasoning of Thompson, plaintiffs should be permitted to bring a direct action against the insurance broker even without an assignment from the insured for negligence in procuring an insurance policy with a purported geographic exclusion when the broker knew or should have known that the insured, in this case LaMia, was in the business of transporting professional soccer teams to matches within South America, including Colombia. Florida law recognizes that, in addition to the obligations imposed by virtue of the insurance broker’s fiduciary status to its insured, insurance brokers also owe a common law tort duty to properly procure insurance coverage. See Wachovia Ins. Serv., Inc. v. Toomey, 994 So.2d 980, 990 & n.4 (Fla. 2008) (citing Romo v. Amedex Ins. Co., 930 So.2d 643, 654 (Fla. 3d DCA 2006) and 5 Florida Torts § 150.24 (2007) (explaining that liability for the failure to procure insurance coverage can be “through breach of contract or negligence”) (emphasis added). As explained in Sheridan, insurance brokers as professionals are charged with the duty to exercise reasonable care in the performance of their obligations, including the duty to “exercise reasonable care and skill to obtain the appropriate coverage.”
“Second, … there is no legal basis for ignoring a choice-of-law contractual provision when the plaintiff sues only in tort and not for breach of contract. There is no support for treating a choice-of-law provision differently in a tort action as opposed to a contract claim. In fact, Mazzoni Farms itself involved a tort -- fraudulent inducement. 761 So. 2d at 309; see also Johns v. Ponto, 684 So. 2d 830, 831 (Fla. 2d DCA 1996) (stating that “fraudulent inducement is an independent tort in that it requires proof of facts separate and distinct from the breach of contract”). Florida courts have consistently applied Mazzoni Farms to tort actions. See, e.g., Briceno v. Sprint Spectrum, L.P., 911 So. 2d 176, 179 (Fla. 3d DCA 2005) (applying Mazzoni Farms to a tort action for invasion of privacy). Florida courts have enforced forum selection clauses against non-parties, even when the non-party sues in tort. See Deloitte & Touche v. Gencor Indus., 929 So. 2d 678, 683-84 (Fla. 5th DCA 2006) (enforcing a mandatory forum selection clause in an action alleging negligent audit work and applying the clause in a subsidiary’s contract to the subsidiary’s parent company); East Coast Karate Studios, Inc. v. Lifestyle Martial Arts, LLC, 65 So. 3d 1127, 1129-30 (Fla. 4th DCA 2011) (enforcing a forum selection clause against two non-parties to the agreement).”
“As set forth in my prior report, my opinion that the TOBA governs the Individuals’ claim, and thus that the TOBA’s choice-of-law provision also applies here, is centered on the fact that the Individuals’ claim against Aon UK can only be based on a third-party beneficiary theory, or by stepping into the shoes of LaMia through an assignment. Either way, the Individuals are bound by the TOBA.”
“However, with great respect to Lord Brandon the absence of a direct contractual nexus between A and B does not necessarily exclude the recognition of a clause limiting liability to be imposed on A in a contract between B and C, when the existence of that contract is the basis of the creation of a duty of care asserted to be owed by A to B.”
“This situation is not capable of being resolved by considering whether the transferred tortious rights are in themselves contractual.”
“61. In The Angelic Grace the Court of Appeal held that the English court need feel no diffidence about granting an anti-suit injunction, provided that it is sought promptly and before the foreign proceedings are too far advanced. The proper approach to delay in this context has recently been considered by Walker J in Essar Shipping Ltd v Bank of China Ltd (The Kishore)[2016] 1 Lloyd’s Rep 427 , in a judgment which both parties in the present case accepted as correctly stating the law. Walker J emphasised that the need to apply for an injunction promptly and before the foreign proceedings are too far advanced are separate and cumulative principles (see para 42). Thus, injunctive relief may be refused if the foreign proceedings have advanced too far, even if the application cannot be criticised for lack of promptness. Equally, lack of promptness alone may justify refusal of an injunction, even if there has been no significant progress in the foreign proceedings and no detrimental reliance upon the delay. As Walker J observed at para 43: “The starting point is that it is generally desirable to resolve issues speedily. Moreover, there are significant dangers to the interests of the parties and to the public interest if applications for coercive relief are delayed. If such applications are made promptly they are inherently likely to be much less complicated than will be the case at a later stage. Where a party seeking coercive relief does not act promptly, the other side is likely to be understandably aggrieved by the delay. An anti-suit injunction is a particularly intrusive form of relief, barring a party from access to justice in the forum that it would prefer. In the particular context of anti-suit and anti-enforcement injunctions, lack of promptness will increase the danger that such injunctions, although they are granted against a party and are not directed to the foreign court, will nevertheless be seen as inappropriately interfering with the jurisdiction of the foreign court.” 62. A further principle established by The Angelic Grace and emphasised in Essar is that steps taken in the foreign proceedings to challenge the court’s jurisdiction do not justify delay in applying to the English court for an anti-suit injunction.” “The starting point is that it is generally desirable to resolve issues speedily. Moreover, there are significant dangers to the interests of the parties and to the public interest if applications for coercive relief are delayed. If such applications are made promptly they are inherently likely to be much less complicated than will be the case at a later stage. Where a party seeking coercive relief does not act promptly, the other side is likely to be understandably aggrieved by the delay. An anti-suit injunction is a particularly intrusive form of relief, barring a party from access to justice in the forum that it would prefer. In the particular context of anti-suit and anti-enforcement injunctions, lack of promptness will increase the danger that such injunctions, although they are granted against a party and are not directed to the foreign court, will nevertheless be seen as inappropriately interfering with the jurisdiction of the foreign court.”
“The task for the Court is not to look at periods of delay and attribute blame for them, but to consider whether the application was made promptly and how far and with what consequences the foreign proceedings have progressed. Whilst ADM was plainly entitled to challenge the jurisdiction in Indonesia, doing so did not remove the need to apply promptly for an anti-suit injunction, if one was to be sought at all.”
“Fourth, and perhaps most importantly, the courts will take into account the extent to which the delay was justifiable or excusable in the circumstances; and will weigh delay against the importance of enforcing the forum clause. Even delay that can be criticized will often not be sufficient to justify refusing an injunction and thus permitting a breach of contract to continue.”
“In my view, in relation to the circumstances of the present case, the principles to be derived from the judgment of the Privy Council in Aerospatiale can be summarised as follows: i) If the only issue is whether an English or a foreign court is the more appropriate forum for the trial of an action, that question should normally be decided by the foreign court on the principle of forum non conveniens, and the English court should not seek to interfere with that decision. ii) However if, exceptionally, the English court concludes that the pursuit of the action in the foreign court would be vexatious and oppressive and that the English court is the natural forum, i.e. the more appropriate forum for the trial of the action, it can properly grant an injunction preventing the plaintiff from pursuing his action in the foreign court. iii) In deciding whether the action in the foreign court is vexatious and oppressive, account must be taken of the possible injustice to the defendant if the injunction be not granted, and the possible injustice to the plaintiff if it is. In other words, the English court must seek to strike a balance.”
“In sum, I do not know of any case which has gone as far as this in finding unconscionable conduct on the part of a foreign party who has not agreed to litigate or arbitrate in England; has been the first to issue court proceedings; has an arguable, if apparently, at any rate to English eyes, weak case under the admittedly applicable law of the foreign forum; therefore has a legitimate juridical advantage in seeking to litigate in Russia, which is the forum of its domicile and its disputed obligation; and who has not submitted to or participated in the English proceedings. In consequence, there is, as it seems to me, something of a touch of egoistic paternalism in an English court injuncting continuation of the foreign proceedings in such a case. In my judgment, Star Reefers’ application for an anti-suit injunction should have failed at this point of the argument.”