Opinion of the Advocate General — ECLI:EU:C:1998:10
Date: 1998-01-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Jurisdiction
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment
Convention on Jurisdiction and the Enforcement ofJudgments - Lis alibi pendens - Proceed­
ings between the 'same parties' - Definition - Whether insurer and its insured are to he treated
as the same party - Condition - Litigation concerning the obligation of the owner of the cargo
of a vessel to contribute to the general average following the foundering of the vessel
(Convention of 27 September 1968, Art. 21)
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SUMMARY— CASE C-351/96
An insurer and its insured must be consid­
ered to be one and the same party for the
purposes of the application of Article 21 of
the Convention on Jurisdiction and the
Enforcement of Judgments in Civil and
Commercial Matters, where there is such a
degree of identity between their interests
that a judgment delivered against one of
them would have the force of res judicata as
against the other. On the other hand, appli­
cation of the said article cannot have the
effect of precluding the insurer and its
insured, where their interests diverge, from
asserting their respective interests before the
courts as against the other parties concerned.
Thus, Article 21 of the Convention is not
applicable in the case of two actions for con­
tribution to general average, one brought by
the insurer of the hull of a vessel which has
foundered against the owner and the insurer
of the cargo which the vessel was carrying
when it sank, the other brought by the latter
two parties against the owner and the char­
terer of the vessel, unless it is established
that, with regard to the subject-matter of the
two disputes, the interests of the insurer of
the hull of the vessel are identical to and
indissociable from those of its insured, the
owner and the charterer of that vessel.
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