French consignees of a shipment of peaches sued in France the Australian issuers of the bill of laiding under which the goods were carried (a contract claim) and the Dutch carriers and master of the ship in which they were carried (tort claims).
Held: There was no jurisdiction under Article 6(1) because none of the defendants were domiciled in France. After referring to Kalfelis: ‘It follows that two claims in one action for compensation directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected.’
Europa An action by which the consignee of goods found to be damaged on completion of a transport operation by sea and then by land, or by which his insurer who has been subrogated to his rights after compensating him, seeks redress for the damage suffered, relying on the bill of lading covering the maritime transport, not against the person who issued that document on his headed paper but against the person whom the plaintiff considers to be the actual maritime carrier, does not fall within the scope of matters relating to a contract within the meaning of Article 5, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 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, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, since the bill of lading in question does not disclose any contractual relationship freely entered into between the consignee and the defendant. Such an action is, however, a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point 3, of that Convention, since that concept covers all actions which seek to establish the liability of a defendant and are not related to matters of contract within the meaning of Article 5, point 1. As regards determining the `place where the harmful event occurred’ within the meaning of Article 5, point 3, the place where the consignee, on completion of a transport operation by sea and then by land, merely discovered the existence of the damage to the goods delivered to him cannot serve to determine that place. Whilst it is true that the abovementioned concept may cover both the place where the damage occurred and the place of the event giving rise to it, the place where the damage arose can, in the circumstances described, only be the place where the maritime carrier was to deliver the goods. Article 6, point 1, of the Convention of 27 September 1968 must be interpreted as meaning that a defendant domiciled in a Contracting State cannot, on the basis of that provision, be sued in another Contracting State before a court seised of an action against a co-defendant not domiciled in a Contracting State on the ground that the dispute is indivisible rather than merely displaying a connection. The objective of legal certainty pursued by the Convention would not be attained if the fact that a court in a Contracting State had accepted jurisdiction as regards one of the defendants not domiciled in a Contracting State made it possible to bring another defendant, domiciled in a Contracting State, before that same court in cases other than those envisaged by the Convention, thereby depriving him of the benefit of the protective rules laid down by it.
Citations:
Times 16-Nov-1998, C-51/97, [1998] ECR I-6511, [1998] EUECJ C-51/97
Links:
Statutes:
Brussels Convention on Enforcement of Judgments in Civil and Commercial Matters 1968
Jurisdiction:
European
Cited by:
Cited – Mazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
Cited – Shahar v Tsitsekkos and others ChD 17-Nov-2004
The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
Cited – Casio Computer Co Ltd v Sayo and others CA 11-Apr-2001
The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
Held: A constructive trust claim based upon . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.
Transport, Jurisdiction
Updated: 03 February 2022; Ref: scu.88750
