Mr Craft died after abandoning ship on his return from a drilling rig to the port of Tunis. A Tunisian statute gave his family a right to claim damages directly from the shipowers’ insurers, Markel. The family began proceedings in Tunisia and Markel applied for an anti-suit injunction to restrain them on the ground that the insurance policy contained an exclusive arbitration clause.
The court refused to grant the injunction. Where an injured party has a right conferred by a foreign statute to bring a claim directly against the insurers of the tortfeasor who has injured him, he is not bound by an arbitration clause in the tortfeasor’s contract of insurance and can bring proceedings in the foreign country. It is only where the claimant is seeking to enforce his rights in accordance with the terms of the insurance contract that he is bound by all its terms, including any arbitration clause (Through Transport Mutual Insurance Association v New India Assurance Association Co Ltd).
Comment: the judge noted that even had Markel been legally entitled to the injunction, he would not have granted it in the exercise of his discretion because of Markel’s delay in applying for the relief. The “arbitration point” was only taken after the Tunisian proceedings had been running for over a year. The application should have been made promptly and the judge was not impressed with the argument that there has been greater delay in other cases. See under Laches above for a discussion of the circumstances in which the courts will deny an applicant equitable relief on the ground of delay.