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Estratto Dcint 1-2021

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Estratto Dcint 1-2021 DIRITTO DEL COMMERCIO INTERNAZIONALE ISSN 1593-2605 Anno XXXV Fasc. 1 - 2021 Marco Lopez De Gonzalo USO E ABUSO DELLA GIURISDIZIONE PER CONNESSIONE Estratto REGNO UNITO - HIGH COURT OF JUSTICE, QUEEN’S BENCH DIVISION, COMMERCIAL COURT, sentenza 29 maggio 2020 - Mr. Justice Waksman, Senior Taxi Aereo Executivo Ltda, Synergy Helicopters II LLC e Synergy Aerospace Corp. v. Agusta Westland s.p.a., Agusta Westland Ltd., Leonardo s.p.a., Agusta Westland NV e Agusta s.p.a. (*). Giurisdizione - Art. 8.1 Regolamento (UE) n. 1215/2017 - Domanda nei confronti dell’anchor defendant - Applicabilità del Merits Test. Il criterio di collegamento giurisdizionale della connessione, di cui all’art. 8.1 del 187 Regolamento (UE) n. 1215/2012 non può essere utilizzato quando la domanda nei confronti del convenuto domiciliato nello Stato membro del giudice (“anchor defendant”) sia manifestamente infondata. INTRODUCTION 2. The Third Claimant, a Panama company, was the original purchaser of the 1. The proceedings before me arise Helicopter from the First Defendant, out of the fatal crash of an Agusta West- AgustaWestland S.p.A. (“AW S.p.A.”), an land AW 139 twin turbine helicopter (“the Italian company, pursuant to a contract Helicopter”) on 19 August 2011, during a flight from the Petrobras P-65 offshore oil dated 1 September 2006. By an assignment platform in the Atlantic, west of Rio de made between AW S.p.A., the Third Janeiro, to Macae Aerodrome in Brazil. Claimant and the Second Claimant, A The Helicopter crashed into the sea in the Delaware company, the purchase contract Campos Basin, killing both pilots and both was assigned to the Second Claimant which passengers. CENIPA, which is the Brazil- then leased the Helicopter to the First ian equivalent of the UK Air Accidents Claimant, a Brazilian company, pursuant Investigation Branch, produced an interim to a lease agreement made on 4 June 2007. report following its initial investigation of The First Claimant was the operator of the the accident, on 25 August 2011. Its final Helicopter at all material times, as well as report was not published until 22 June being the lessee. It makes the primary 2017, almost 6 years after the accident. claims in this action and such claims are (*) Vedi il commento che segue di Marco Lopez de Gonzalo. COMMENTI E RASSEGNE REGNO UNITO - HIGH COURT OF JUSTICE also made further, or in the alternative, by (2) the TRB broke off during the the Second and Third Claimants. For pres- flight causing an immediate yaw to the ent purposes, I can treat all Claimants to- right; gether and so refer to them collectively as (3) within a second or less, the vibra- “Senior”. tion of the remaining tail rotor blades 3. The Second Defendant, presently ripped off the tail rotor assembly, severing known as AgustaWestland Limited (“AW the pipework of the No. 1 and No. 2 hy- Limited”) is an English company. The draulic systems which power the aircraft Third Defendant, Leonardo S.p.A. controls; (“Leonardo”) is another Italian company. (4) the fluid in the No. 1 hydraulic The First to Third Defendants are all part system drained away immediately render- of the Leonardo group of companies. The ing it useless; Fifth Defendant is the same corporate en- (5) for about 7.5 seconds, the tail rotor tity as AW S.p.A., simply being its former shut-off valve (TRSOV) involved in the name and can thus be disregarded. The No. 2 hydraulic system operated to retain Fourth Defendant was a Dutch company, fluid power in the system, probably allow- part of the same group but which now no ing the pilots to regain control of the air- longer exists, so it can equally be disre- craft; garded. (6) the TRSOV then failed, because 4. On 21 November 2012, Clyde & of a (further) manufacturing or design de- Co., then acting for Senior, wrote to AW fect emptying out the remainder of the S.p.A. and also Agusta Westland do Brazil hydraulic fluid in No. 2, and depriving the 188 Ltda, a Brazilian company, intimating a pilots of any means of control ling the claim against either or both of them. They aircraft; made a further claim letter on 9 July 2013. (7) as a result, the aircraft fell, uncon- No proceedings were issued anywhere at that time. On 21 July 2016 Senior’s Italian trolled, into the sea; lawyers wrote to AW S.p.A. and Leonardo (8) there have been at least two prior in order formally to interrupt the running similar instances of defective rotor blades of time for the purposes of any Italian on AW 139 aircraft breaking off, each re- proceedings. Following publication of the sulting in the immediate detachment of the CENIPA final report, those lawyers wrote tail rotor assembly: again to interrupt time on 24 July 2017, 2 (a) B-MHJ (East Asia Airlines) July 2018 and 24 June 2019. No proceed- which ditched in Hong Kong Vittoria Har- ings have yet been commenced in Italy. bour on 3 July 2010 with 2 pilots and 11 passengers; and RELEVANT CORPORATE HIS- (b) A7-GHA in Qatar on 2 May TORY 2011. (Omissis) 10. The TRB which broke off here, numbered Q1018, was a replacement. It THE ACCIDENT had originally been fitted to a different 9. CENIPA’ s final report concluded helicopter in September 2008 and then to a essentially as follows: further helicopter in August 2010. It was (1) one of the tail rotor blades of the later repaired and put back into circulation Helicopter (“the TRB”) was compromised as a warranty replacement part on a yet by manufacturing defects including poros- further helicopter. Finally, it was fitted to ity, voids, torsion box damage and delami- the Helicopter on 22 April 2011 and re- nation, giving rise to cracks and breakage; mained on it until the flight in question. COMMENTI E RASSEGNE REGNO UNITO - HIGH COURT OF JUSTICE THE CLAIM (2) Loss of value of the Helicopter at between US$8-11 m; 11. Paragraph 10 of the Particulars (3) Search and Rescue costs; of Claim alleges that at the material time, (4) Wreckage storage costs (to be AW Ltd’s business included the design and quantified), and manufacture of its own helicopters and the (5) Business losses including loss of provision of helicopter research and design profits (to be quantified). services to others and made reference to its 14. The Defendants, among other December 2003 accounts. Paragraph 21 al- things, deny that AW Ltd had any role in leges that “the Defendants” were design- relation to the design manufacture, supply ers, manufacturers re-manufacturers, sell- or marketing of the Helicopter or the TRB. ers, suppliers repairers, maintainers of the AW Ltd’s Defence states that it did not AW 139 helicopter type, its parts and com- provide any relevant research or design ponents and were suppliers of connected services and also that the Particulars of services. Paragraph 22 alleges that the Claim fails to articulate any coherent alle- AW139 was at the material times marketed gation against it. Paragraph 16 says that the by “the group” as the Agusta Westland generic expression “the Defendants” is AW139 and parts were marketed as Agusta wholly inadeguate. Paragraph 17 says that Westland parts. Paragraph 34 alleges that AW Ltd at no time marketed the AW139 the AW139 tail rotor blades, as “designed, and it was never represented as a helicop- manufactured (etc) by [the] Defendant[s] ter produced or supplied by it. It further appeared frequently to contain defects”. denied in paragraph 26 that it assembled or 189 Paragraph 35 alleges that “the Defen- delivered it. It said that it was clear that the dants” should have recognised the exis- Helicopter had been manufactured by AW tence of such defects prior to the accident. S.p.A. In paragraph 27, AW Ltd denied any 12. Paragraph 43 cited the two pre- involvement in the design manufacture vious accidents where tail rotor blades had supply or lifting of the TRSOV or tail rotor broken off leading to the immediate de- blades. Paragraph 35, without prejudice to tachment of the tail rotor assembly. Para- the earlier denials, alleged that the claim graph 44 alleges that by then at the latest, included a claim for damages in respect of “the Defendants” should have been aware personal injuries and so any claim in neg- of this. Paragraph 56-58 alleged negligence ligence was now time-barred. against the Defendants with 51 separate 15. AW Ltd then pleaded further de- particulars together with reliance upon res tailed points as to the non-availability ipso loquitur. Paragraphs 59-60 alleged as against it of any claim under the 1987 Act against all Defendants breach of European or other relevant provisions. Further limi- Directive 85/374, the Consumer Protection tation points were taken as well as alleging Act 1987 (“the 1987 Act”) and/or Italian that the claimed losses included irrecover- law as suppliers of defective products, able claims for pure economic loss. namely the Helicopter and/or the TRB. THE ISSUES ON THE APPLICA- 13. Again as against all Defendants, TIONS Senior claims the following losses: (1) An indemnity in respect of the 16. There are before me, two appli- monies paid out by way of compensation to cations: the families of the deceased put at about (1) AW Ltd’s application to strike-out Brazilian Reals R$6.2m (“the Indemnity the claims against it or have them summar- Claim”); ily dismissed pursuant to CPR Part 24 COMMENTI E RASSEGNE REGNO UNITO - HIGH COURT OF JUSTICE (“the Strike-out Application” and “the THE LAW Summary Judgment Application”); Strike-out (2) The other Defendants’ application to set aside the proceedings against them 27.
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