In Dolphin Maritime Services Ltd v Sveriges Angartygs Assurans Forening  EWHC 716 (Comm), Christopher Clarke J examined the ambit of Article 5(3) of the Brussels Regulation in the context of economic loss. The Claimant's essential complaint was that it had suffered harm because it had not received the sum of $US8.5m into its bank account in England which it should have done because the Defendant paid it to the underwriters' accounts in Turkey. The harm lay in the non-receipt of the money at the place where it ought to have been received, namely England.
It was held that the question was where the damage to the direct victim occurred or where the event giving rise to the damage directly produced its harmful effects upon the person who was the immediate victim of that event. The judge held that where the Claimant complains that he has not received a sum of money that he should have received, the damage to him is likely to have occurred in the place where he should have received it. That place could be the place of his domicile.
Consideration was also given to whether a cargo recovery agent and claims correspondent were entitled unders 1(1)(b) of the Contracts (Third Parties) Act 1999 to enforce the contract between vessel owners and the underwriters.
The court ruled that a contract did not purport to confer a benefit on a third party simply because the position of that third party would be improved if the contract was performed. The reference in s 1(1)(b) of the Act to the term purporting to confer a benefit connoted that the language used by the parties had to show that one of the purposes of the bargain was to benefit the third party.
The provision in the LOU that payment should be made to the claimant or the underwriters' solicitors was an agreement as to the means by which the defendant's obligation to the underwriters was to be discharged. It was not an indication that the agent payee was an intended beneficiary of the promise. The intended beneficiaries were the underwriters on whose behalf the payment was to be received. Accordingly, the term in question had not conferred a benefit on the claimant in the sense meant by s 1(1)(b) of the Act.