||All England Reporter
|| All ER (D) 376 (Feb)
|| EWCA Civ 154
||Court of Appeal, Civil Division
Laws, Carnwath and Moore-Bick LJJ
||Iain Milligan QC and Guy Morpuss (instructed by Clyde & Co) for the claimants.
||Michael Swainston QC and David Scorey (instructed by Barlow Lyde & Gilbert) for the defendants.
||28 February 2007
Contract - Breach - Wilful misconduct/gross negligence - Claimants' consignment misappropriated by second defendant's employee - Claim being brought by insurers by subrogation - Insurance policy governed by German marine insurance law - Contract limiting liability of defendants to wilful misconduct/gross negligence of defendants' 'representative' - Whether identified person 'representative' having regard to rules of German marine insurance - Whether 'representative' grossly negligent.
Having regard to the terms of a policy of insurance governed by German marine insurance law the first claimant and its insurers were not entitled to recover under the terms of that policy from the defendants (who were also policyholders) in respect of the misappropriation of a number of parcels of vegetable oil (owned by the first claimant) by an employee of the second defendant at a time when the first defendant had been responsible for ensuring the safe-keeping and delivery of the oil under the terms of a collateral management agreement.
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