Keywords

Summary



Keywords

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1. Convention on jurisdiction and the enforcement of judgments ° Relationship to other conventions ° Conventions on a specific matter ° Convention including rules of jurisdiction ° Exclusion of application of the Brussels Convention ° Limits ° Applicability of that convention to questions not governed by the specialized convention

(Convention of 27 September 1968, Art. 57)

2. Convention on jurisdiction and the enforcement of judgments ° Lis pendens ° Actions brought between the same parties ° Some but not all parties to the two sets of proceedings identical ° Obligation of the second court seised to decline jurisdiction ° Obligation limited solely to those parties who are also parties to the action previously commenced

(Convention of 27 September 1968, Art. 21)

3. Convention on jurisdiction and the enforcement of judgments ° Lis pendens ° Actions involving the same cause of action and the same object ° Concept ° Action for a finding of liability with a claim for payment by the defendant of damages for the loss suffered, and action by that party for a declaration that he is not liable for the same loss ° Inclusion ° Distinction in national law between actions in personam and in rem ° Irrelevance

(Convention of 27 September 1968, Art. 21)

4. Convention on jurisdiction and the enforcement of judgments ° Related actions ° Concept ° Independent interpretation ° Risk of conflicting decisions ° Actions brought against a shipowner by several groups of cargo owners seeking damages for loss which occurred during the shipment of the joint cargo and based on contracts which are separate but identical

(Convention of 27 September 1968, Art. 22)

Summary

1. On a proper construction, Article 57 of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Convention on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, 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.

2. 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.

3. 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.

4. 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.