In Case C-406/92,
REFERENCE to the Court
under the Protocol of 3 June 1971 on the interpretation by the Court of
Justice of the Convention of 27 September 1968 on jurisdiction and the
enforcement of judgments in civil and commercial matters by the Court of
Appeal for a preliminary ruling in the proceedings pending before that
court between
The owners of the cargo lately laden on board the ship
"Tatry"
and
The owners of the ship "Maciej Rataj"
on the
interpretation of Articles 21, 22 and 57 of the Brussels Convention of 27
September 1968, cited above, as amended by the Convention of 9 October
1978 on the accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and °
amended text ° p. 77),
THE COURT,
composed of: G.C. Rodríguez
Iglesias, President, R. Joliet, F.A. Schockweiler and P.J.G. Kapteyn
(Presidents of Chambers), G.F. Mancini, C.N. Kakouris (Rapporteur) and
J.L. Murray, Judges,
Advocate General: G. Tesauro,
Registrar: L.
Hewlett, Administrator,
after considering the written observations
submitted on behalf of:
° the owners of the cargo lately laden on
board the ship Tatry, by Clyde & Co., Solicitors, and Alistair Schaff,
Barrister,
° the owners of the ship Maciej Rataj, by Lawrence Graham,
Solicitors, and Charles Priday, Barrister,
° the United Kingdom, by
John D. Colahan, replacing Susan Cochrane, of the Treasury Solicitor' s
Department, acting as Agent, and Lionel Persey, Barrister,
° the
Commission of the European Communities, by Xavier Lewis and Pieter van
Nuffel, of the Legal Service, acting as Agents,
having regard to the
Report for the Hearing,
after hearing the oral observations of the
applicants, represented by Alistair Schaff, of the defendants, represented
by Stephen Tomlinson QC, of the United Kingdom, represented by Stephen
Braviner of the Treasury Solicitor' s Department, acting as Agent, and by
Lionel Persey, and of the Commission, represented by Xavier Lewis, at the
hearing on 11 May 1994,
after hearing the Opinion of the Advocate
General at the sitting on 13 July 1994,
gives the following
Judgment
the Protocol of 3 June 1971 on the
interpretation by the Court of Justice of the Convention of 27 September
1968 on jurisdiction and the enforcement of judgments in civil and
commercial matters (hereinafter "the Convention" or "the Brussels
Convention"), as amended by the Convention of 9 October 1978 on the
accession of the Kingdom of Denmark, Ireland and the United Kingdom of
Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and ° amended
text ° p. 77) (hereinafter "the Accession Convention"), several questions
on the interpretation of Articles 21, 22 and 57 of the Convention.
1
Those questions were raised in two actions in which the facts and
procedure before the national courts are summarized below.
2 In
September 1988 a cargo of soya bean oil belonging to a number of owners
(hereinafter "the cargo owners") was carried in bulk aboard the vessel
Tatry, belonging to a Polish shipping company, Zegluga Polska Spolka
Alceyjna ° referred to in the order for reference as "the shipowners". The
voyage was from Brazil to Rotterdam for part of the cargo and to Hamburg
for the rest. The cargo owners complained to the shipowners that in the
course of the voyage the cargo was contaminated with diesel or other
hydrocarbons.
3 There are three groups of cargo owners:
° "Group
1": owners of cargo carried to Rotterdam under separate bills of lading;
° "Group 2": this is not a "group", but simply the company Phillip
Brothers Ltd (hereinafter "Phibro"), whose registered office is in the
United Kingdom, which owned another part of the cargo also carried to
Rotterdam under separate bills of lading;
° "Group 3": four owners of
cargo carried to Hamburg under four separate bills of lading; the owners
in the group were Phibro (in respect of parcels other than those covered
by Group 2) and Bunge & Co. Ltd, whose registered office is likewise
in the United Kingdom, Hobum Oele und Fette AG and Handelsgesellschaft
Kurt Nitzer GmbH, both of whose registered offices are in Germany.
4
Various actions were commenced in courts in the Netherlands and the United
Kingdom by the various cargo owners and the shipowners.
(a) Actions
brought by the shipowners
5 On 18 November 1988, before any other
proceedings had commenced, the shipowners brought an action before the
Arrondissementsrechtbank (District Court), Rotterdam against Groups 1 and
3, with the exception of Phibro, seeking a declaration that they were not
liable or not fully liable for the alleged contamination.
6 The cargo
owners in Group 1 were sued in the Rotterdam District Court on the basis
of Article 2 of the Convention, and those in Group 3 on the basis of
Article 6(1).
7 In 1988, no action had been brought by the shipowners
against Group 2 (Phibro). It was not until 18 September 1989 that the
shipowners initiated separate proceedings in the Netherlands for a
declaration that they were not liable for the contamination of the cargo
delivered to Group 2 in Rotterdam. Those proceedings were brought against
Phibro' s agents in Rotterdam, who had presented the bills of lading on
behalf of Phibro.
8 On 26 October 1990 the shipowners initiated
proceedings in the Netherlands seeking to limit their liability in respect
of the entire cargo. Those proceedings were brought under the
International Convention of 10 October 1957 relating to the limitation of
the liability of owners of sea-going ships [International Transport
Treaties, suppl. 1-10 (January 1986), p. I-76].
(b) Actions brought by
the cargo owners
9 The following actions were brought by the cargo
owners in Groups 2 and 3 against the owners of the vessel Tatry seeking
damages for their alleged loss.
10 After an unsuccessful attempt to
arrest the Tatry in Hamburg, Group 3 brought an action in rem (hereinafter
"Folio 2006") before the High Court of Justice, Queens' s Bench Division,
Admiralty Court, against the Tatry and another ship, the Maciej Rataj,
whose owners are the same as the owners of the Tatry. The writ was served
on 15 September 1989 in Liverpool on the Maciej Rataj, which was arrested.
Subsequently, the shipowners acknowledged service of the writ and, by
providing a guarantee, secured the vessel' s release from arrest. The
action continued in accordance with English law. However, doubts exist
under that law as to whether the proceedings continue in those
circumstances only in personam or both in rem and in personam.
11
Group 2 (Phibro) also commenced an action in rem before the same court
(hereinafter "Folio 2007") against the ship Maciej Rataj. The writ was
served on 15 September 1989 in Liverpool on the Maciej Rataj, which was
likewise arrested. The course of events in Folio 2007 was the same as in
Folio 2006.
12 For the arrest of the Maciej Rataj, the Admiralty Court
based its jurisdiction on sections 20 to 24 of the Supreme Court Act 1981,
which implement the International Convention for the unification of
certain rules relating to the arrest of sea-going ships, signed at
Brussels on 10 May 1952 [International Transport Treaties, suppl. 14
(March 1990), p. I-64, hereinafter "the Arrest Convention"], to which the
Netherlands is also a party.
13 Furthermore, as a precautionary
measure in the event that the English courts declined jurisdiction, Groups
2 and 3 (with the exception of Phibro) brought actions in the Netherlands
on 29 September and 3 October 1989 respectively.
14 Group 1 brought no
action before the English courts. However, on 29 September 1989 it brought
an action for damages in the Netherlands against the shipowners.
15 As
regards Folio 2006, the shipowners moved the Admiralty Court to decline
jurisdiction in favour of the Netherlands court pursuant to Article 21 of
the Brussels Convention relating to lis pendens or, in the alternative,
pursuant to Article 22 on related actions. As regards Folio 2007, since
they accepted that the Admiralty Court was the first seised, they did not
rely on Article 21 of the Convention but none the less requested that the
Admiralty Court decline jurisdiction on the basis of Article 22.
16 At
first instance, the Admiralty Court decided that it was under no
obligation to decline jurisdiction or stay proceedings in accordance with
Article 21 of the Convention, since that provision was not applicable for
the following reasons:
(a) in Folio 2006, on the ground that that
action and the proceedings previously brought in the Netherlands did not
have the same cause of action, since the English proceedings sought
compensation for the cargo owners while the Netherlands proceedings sought
neither to protect nor to enforce a right but sought a declaration that
the cargo owners were not entitled to claim damages from the owners of the
Tatry;
(b) in Folio 2007, on the ground that Group 2 was not a party
to the proceedings commenced in the Netherlands.
17 The Admiralty
Court accepted that Folio 2006 and Folio 2007 and the proceedings
commenced in the Netherlands were related actions. It decided, however,
that it was not appropriate to decline jurisdiction or stay proceedings in
the two cases pending before it.
18 The shipowners appealed against
that decision to the Court of Appeal.
19 The Court of Appeal, since it
did not uphold the decision given at first instance and considered that
the outcome of the proceedings depended on the interpretation of Articles
21, 22 and 57 of the Convention, decided to stay proceedings and refer the
following questions to the Court for a preliminary ruling:
"1. For the
purposes of the application of Article 21 of the Brussels Convention 1968
(as amended), where proceedings are brought in a Contracting State which
involve the same cause of action as prior proceedings brought in another
Contracting State, must the courts of the Contracting State second seised
decline jurisdiction
(a) only where there is a complete identity of
parties between the two sets of proceedings; or
(b) only where all the
parties to the proceedings in the courts of the Contracting State second
seised are also parties to the proceedings in the courts of the
Contracting State first seised; or
(c) whenever at least one of the
plaintiffs and one of the defendants to the proceedings before the courts
of the Contracting State second seised are also parties to the proceedings
in the courts of the Contracting State first seised; or
(d) whenever
the parties in the two sets of proceedings are substantially the same?
2. In relation to the carriage of goods by sea in circumstances where
goods are discharged in an allegedly damaged condition, does a claim
brought by the cargo owners in a Contracting State in respect of such
alleged damage in an action which was commenced in rem against either the
carrying vessel or a sister ship thereof pursuant to the United Kingdom' s
admiralty jurisdiction involve the same parties and the same cause of
action for the purposes of Article 21 of the Brussels Convention 1968 (as
amended) as in personam proceedings previously brought in another
Contracting State by the ship owner against the cargo owners in respect of
such alleged damage if the shipowner acknowledges service and procures the
release from arrest of the vessel upon provision of security and
thereafter
(a) the admiralty action continues both in rem and in
personam; or
(b) the admiralty action continues only in personam?
3. Where a Contracting State is party to the Brussels Arrest
Convention 1952 and its merits jurisdiction has been invoked by the arrest
of a vessel in accordance with the provisions of the Arrest Convention by
cargo owners in respect of a claim for loss arising out of the discharge
of cargo in an allegedly damaged condition, then in so far as proceedings
have previously been brought by the shipowner against the cargo owners in
respect of such alleged damage in another Contracting State, are the
courts of the Contracting State in which merits jurisdiction has been
founded by arrest entitled to retain such jurisdiction by virtue of
Article 57 of the Brussels Convention 1968 (as amended by Article 25(2) of
the Accession Convention) if
(a) the two actions involve the same
cause of action and same parties for the purposes of Article 21 of the
Brussels Convention 1968 (as amended); or
(b) the two actions are
'related actions' for the purposes of Article 22 of the Brussels
Convention 1968 (as amended) and it would otherwise be appropriate for the
court second seised to decline jurisdiction or to stay its proceedings
thereunder?
4. For the purposes of Article 22 of the Brussels
Convention 1968 (as amended):
(a) Does the third paragraph of Article
22 provide an exclusive definition of 'related proceedings?'
(b) In
order for the courts of a Contracting State to decline jurisdiction or to
stay their proceedings under Article 22, is it necessary for there to be a
risk that if the two sets of proceedings are heard and determined
separately, this might lead to legal consequences which are mutually
exclusive?
(c) If proceedings are brought in one Contracting State in
respect of a claim by one group of cargo owners against a shipowner for
damage to their portion of a bulk cargo carried under specified contracts
of carriage and if separate proceedings are brought in another Contracting
State against the same shipowner based on essentially similar issues of
fact and law but by a different cargo owner for damage to its portion of
the same bulk cargo carried under separate contracts of carriage on the
same terms, do these proceedings, if heard and determined separately,
involve the risk of giving rise to legal consequences which are mutually
exclusive or are they otherwise related actions for the purposes of
Article 22?
5. In relation to the carriage of goods by sea in
circumstances where goods are discharged in an allegedly damaged
condition, if
(i) the shipowner commences proceedings in a Contracting
State which involve a claim for a declaration of non-liability to cargo
interests in respect of such alleged damage; and
(ii) the cargo
claimants subsequently commence the proceedings in another Contracting
State in which they claim damages against the shipowner for negligence
and/or breach of contract and/or duty in respect of such alleged damage to
their cargo,
do the latter proceedings involve the same cause of
action as the former proceedings for the purposes of Article 21 of the
1968 Brussels Convention (as amended) so that the courts of the latter
Contracting State must decline jurisdiction pursuant to Article 21?"
20 In the light of the interrelationship between the various questions
referred, it is appropriate first to consider the third question, which
concerns the scope of the Brussels Convention and of the special
conventions. The first, fifth and second questions, all three of which
seek an interpretation of Article 21 of the Convention, concerned with lis
pendens, will be considered thereafter. Finally, the fourth question,
which seeks an interpretation of Article 22 of the Convention, concerned
with related actions, will be considered.
The third question
21
The national court' s third question is essentially whether, on a proper
construction, Article 57 of the Convention, as amended by the Accession
Convention, means that, where a Contracting State is also a contracting
party to another convention on a specific matter containing rules on
jurisdiction, that specialized convention always, subject to express
exceptions, precludes the application of the Brussels Convention, or that
the specialized convention precludes the application of the provisions of
the Brussels Convention only in cases governed by it and not in those to
which it does not apply.
22 Article 57 of the Convention, as amended
by Article 25(1) of the Accession Convention, provides:
"This
Convention shall not affect any conventions to which the Contracting
States are or will be parties and which, in relation to particular
matters, govern jurisdiction or the recognition or enforcement of
judgments.
This Convention shall not affect the application of
provisions which, in relation to particular matters, govern jurisdiction
or the recognition or enforcement of judgments and which are or will be
contained in acts of the institutions of the European Communities or in
national laws harmonized in implementation of such acts."
23 Article
57 introduces an exception to the general rule that the Convention takes
precedence over other conventions signed by the Contracting States on
jurisdiction and the recognition and enforcement of judgments. The purpose
of that exception is to ensure compliance with the rules on jurisdiction
laid down by specialized conventions, since in enacting those rules
account was taken of the specific features of the matters to which they
relate.
24 That being its purpose, Article 57 must be understood as
precluding the application of the provisions of the Brussels Convention
solely in relation to questions governed by a specialized convention. A
contrary interpretation would be incompatible with the objective of the
Convention which, according to its preamble, is to strengthen in the
Community the legal protection of persons therein established and to
facilitate recognition of judgments in order to secure their enforcement.
In those circumstances, when a specialized convention contains certain
rules of jurisdiction but no provision as to lis pendens or related
actions, Articles 21 and 22 of the Brussels Convention apply.
25 The
cargo owners argue that the Arrest Convention contains provisions relating
to lis pendens in Article 3(3), which provides: "A ship shall not be
arrested ... more than once in any one or more of the jurisdictions of any
of the Contracting States in respect of the same maritime claim by the
same claimant".
26 The cargo owners' argument cannot be accepted.
Where an arrest has already been made in the jurisdiction of a Contracting
State, Article 3(3) of the Arrest Convention prohibits a second arrest by
the same claimant in respect of the same claim in the jurisdiction, in
particular, of another Contracting State. Such a prohibition has nothing
to do with the concept of lis pendens within the meaning of Article 21 of
the Brussels Convention. That provision is concerned with the situation
where proceedings are brought before two courts both of which have
jurisdiction and it governs only the question which of those two courts is
to decline jurisdiction in the case.
27 The answer to the third
question therefore is that, on a proper construction, Article 57 of the
Convention, as amended by the Accession Convention, means that, where a
Contracting State is also a contracting party to another convention on a
specific matter containing rules on jurisdiction, that specialized
convention precludes the application of the provisions of the Brussels
Convention only in cases governed by the specialized convention and not in
those to which it does not apply.
The first question
28 The
national court' s first question is essentially whether, on a proper
construction, Article 21 of the Convention is applicable in the case of
two sets of proceedings involving the same cause of action where some but
not all of the parties are the same, at least one of the plaintiffs and
one of the defendants to the proceedings first commenced also being among
the plaintiffs and defendants in the second proceedings, or vice versa.
29 The question refers to the term "the same parties" mentioned in
Article 21, which requires as a condition for its application that the two
sets of proceedings be between the same parties. As the Court held in Case
144/86 Gubisch Maschinenfabrik v Palumbo [1987] ECR 4861
, the terms used in Article 21 in order to determine whether a
situation of lis pendens arises must be regarded as independent (paragraph
11 of the judgment). 