ECJ On a proper construction, Article 57 of the Brussels Convention on jurisdiction and the enforcement of judgments as amended 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. Where 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 accordingly apply.
On a proper construction of Article 21 of the Convention, where it requires, as a condition of the obligation of the second court seised to decline jurisdiction, that the parties to the two actions be identical, that cannot depend on the procedural position of each of them in the two actions. Where some but not all of the parties to the second action are the same as the parties to the action commenced earlier in another Contracting State, that article requires the second court seised to decline jurisdiction only to the extent to which the parties to the proceedings before it are also parties to the action previously commenced; it does not prevent the proceedings from continuing between the other parties.
For the purposes of Article 21 of the Convention, the ’cause of action’ comprises the facts and the rule of law relied on as the basis of the action and the ‘object of the action’ means the end the action has in view. An action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object within the meaning of that article as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss. A subsequent action does not cease to have the same cause of action and the same object and to be between the same parties as a previous action where the latter, brought by the owner of a ship before a court of a Contracting State, is an action in personam for a declaration that that owner is not liable for alleged damage to cargo transported by his ship, whereas the subsequent action has been brought by the owner of the cargo before a court of another Contracting State by way of an action in rem concerning an arrested ship, and has subsequently continued both in rem and in personam, or solely in personam, according to the distinctions drawn by the national law of that other Contracting State.
The concept of ‘related actions’ defined in the third paragraph of Article 22 of the Convention, which must be given an independent interpretation, must be interpreted broadly and, without its being necessary to consider the concept of irreconcilable judgments in Article 27(3) of the Convention, must cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive. It is accordingly sufficient, in order to establish the necessary relationship between, on the one hand, an action brought in a Contracting State by one group of cargo owners against a shipowner seeking damages for harm caused to part of the cargo carried in bulk under separate but identical contracts, and, on the other, an action in damages brought in another Contracting State against the same shipowner by the owners of another part of the cargo shipped under the same conditions and under contracts which are separate from but identical to those between the first group and the shipowner, that separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences.
Times 28-Dec-1994, C-406/92, [1994] EUECJ C-406/92, [1995] 1 Lloyd’s Rep 302, [1995] ILPr 81, [1999] QB 515, [1995] All ER (EC) 229, [1994] ECR I-5439, [1995] CLC 275, [1999] 2 WLR 181
Bailii
Brussels Convention 21 22
European
Cited by:
Cited – Sarrio Sa v Kuwait Investment Authority HL 17-Nov-1997
The parties were spanish companies. They were involved in proceedings against each other in Spain. The respondent had begun an action here for negligent misrepresentation against the appellant. The appellant argued that given the Spanish . .
Cited – Television Autonomica Valenciana, Sa v Imagina Contenidos Audiovisuales, Sl ChD 8-Feb-2013
The defendant sought a stay of these proceedings pending the outcome of related proceedings in Spain. The claimant sought a declaration that a contract was terminated and damages for such breach. The Spanish proceedings were first in time.
Cited – In re The Alexandros T SC 6-Nov-2013
The parties had disputed insurance claims after the foundering of the Alexandros T. After allegations of misbehaviour by the underwriters, the parties had settled the claims in a Tomlin Order. Five years later, however, the shipowners began . .
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Cited – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
Cited – Wright v Granath QBD 16-Jan-2020
Defamation across borders – Jurisdiction
The claimant began an action for defamation in an online publication. The Norwegian resident defendant had begun an action there seeking a declaration negating liability. The Court was now asked by the defendant whether under Lugano, the UK action . .
Lists of cited by and citing cases may be incomplete.
Jurisdiction, European, Transport
Leading Case
Updated: 11 November 2021; Ref: scu.161021
