Cour de cassation 1ère Chambre civile; 2022-03-09; 1re Civ., 9 mars 2022, pourvoi n° 20-21.572
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2022:C100198
Date: 2022-03-09
Subject matter: Brussels Convention of 27 September 1968;Judicial cooperation in civil matters
Origin: France

82022FR0309(52)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Cour de Cassation (hereinafter ‘the Supreme Court’) concerned the problem of the applicability of arbitration clauses.
The French company Compagnie du Ponant entered a shipbuilding contract with the Italian company Fincantieri, which subtracted various obligations to the Finnish company Marioff Corporation (hereinafter ‘defendant 1’), the French company Bureau Veritas (hereinafter ‘defendant 2’) and the Finnish company Wärtsilä Finland (hereinafter ‘defendant 3’).
A fire occurred on the ship while it was off the coast of the Falkland Islands (United Kingdom).
Assurers subrogated in the rights of Compagnie du Ponant (hereinafter ‘the plaintiffs’) sued the defendants in France, where the ship was registered. The case was brought before the cour d’appel de Nouméa (hereinafter ‘the Court of Appeal’).
All defendants claimed that the French courts had no jurisdiction. Defendants 1 and 2 relied on arbitration clauses which designated London as the seat of the arbitration; the plaintiffs claimed that those clauses were inapplicable. The plaintiffs relied on Article 1506 of the code civil (1), which allows the parties to deviate from Article 1448 of this code, which provides that ‘when a dispute subject to an arbitration agreement is brought before a court of the State, this court declines jurisdiction, except if the arbitral tribunal is not yet seised or if the arbitration agreement is manifestly void or inapplicable’.
The plaintiffs argued that the parties, by agreeing that the arbitration would take place in London and be governed by English law, meant to deviate from Article 1448 of the code civil, as a result of which, the Court of Appeal was entitled to examine if the contentious clauses were not inapplicable.
The Court of Appeal held that the French courts did not have jurisdiction to examine the actions against defendants 1 and 2, on the grounds that the contentious clauses were not manifestly inapplicable.
Furthermore, the Court of Appeal ruled that the French courts did not have jurisdiction to examine the action against defendant 3 because the fire occurred as the ship was off the coast of the United Kingdom.
The plaintiffs appealed to the Supreme Court.
Regarding defendants 1 and 2, the Supreme Court held that the parties may deviate from Article 1448 of the code civil, but only in an express and unequivocal manner.
Regarding defendant 3, the Supreme Court cited Article 5(3) of the Brussels Convention (2), which provides that ‘[a] person domiciled in a Contracting State may, in another Contracting State, be sued […] in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred’. The Supreme Court recalled the case-law of the Court of Justice of the European Union, according to which this place may be either the place where the damage occurred and the place of the event giving rise to it (Case C-21/76) (3), the defendant may be sued in the courts for either of those places when they are not identical (Case C-21/76), and the flag State must necessarily be regarded as the place where the harmful event caused damage when the damage arose on a ship (Case C-18/02) (4).
For those reasons, the Supreme Court set aside the judgment of the Court of Appeal, but only inasmuch as the Court of Appeal declined jurisdiction regarding the defendant 3.
(1) Code civil (Civil code).
(2) 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.
(3) Judgment of the Court of Justice of 30 November 1976, Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA, C-21/76, ECLI:EU:C:1976:166.
(4) Judgment of the Court of justice of 5 February 2004, Danmarks Rederiforening v LO Landsorganisationen i Sverige, C-18/02, ECLI:EU:C:2004:74, paragraph 44.