Case C-39/02

Mærsk Olie & Gas A/S

v

Firma M. de Haan en W. de Boer

(Reference for a preliminary ruling from the Højesteret)

(Brussels Convention – Proceedings to establish a fund to limit liability in respect of the use of a ship – Action for damages – Article 21 – Lis pendens – Identical parties – Court first seised – Identical subject-matter and cause of action – None – Article 25 – ‘Judgment’ – Article 27(2) – Refusal to recognise)

Summary of the Judgment

1. Convention on Jurisdiction and the Enforcement of Judgments – Lis pendens – Applications having identical subject-matter and involving an identical cause of action – Concept – Application by the owner of a ship seeking the establishment of a liability limitation fund and action for damages brought against the owner by the potential victim of the damage – Excluded

(Brussels Convention of 27 September 1968, Art. 21)

2. Convention on Jurisdiction and the Enforcement of Judgments – Recognition and enforcement – ‘Judgment’ – Decision to establish a fund to limit liability in respect of the use of a ship – Included

(Brussels Convention of 27 September 1968, Art. 25)

3. Convention on Jurisdiction and the Enforcement of Judgments – Recognition and enforcement – Grounds of refusal – Failure to serve the document instituting proceedings on a defendant in default of appearance or to notify that document to the defendant in good time – Decision to establish a fund to limit liability in respect of the use of a ship – Need to notify the document instituting the proceedings even in the event of an appeal challenging the jurisdiction of the original court – Decision constituting a document equivalent to a document instituting proceedings – Recognition – Condition – Review by the court before which enforcement is sought

(Brussels Convention of 27 September 1968, Art. 27(2))

1. An application to a court of a Contracting State by the owner of a ship for the establishment of a liability limitation fund, as provided for under the International Convention of 10 October 1957 relating to the Limitation of the Liability of Owners of Sea-Going Ships, in which the potential victim of the damage is indicated, and an action for damages brought before a court of another Contracting State by that victim against the owner of the ship do not have the same subject-matter or involve the same cause of action and therefore do not create a situation of lis pendens within the terms of Article 21 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.

(see paras 35, 37, 42, operative part 1)

2. A decision by a court of a Contracting State ordering the establishment of a liability limitation fund, as provided for under the International Convention of 10 October 1957 relating to the Limitation of the Liability of Owners of Sea-Going Ships, is a judgment within the terms of Article 25 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.

In the first place, under Article 25, a ‘judgment’ means any judgment given by a court or tribunal of a Contracting State, whatever that judgment may be called. Second, that provision is not limited to decisions which terminate a dispute in whole or in part, but also applies to provisional or interlocutory decisions. The fact that such a decision is taken at the conclusion of proceedings in which the parties were not heard is immaterial in that regard as, even if it was taken at the conclusion of an initial phase of the proceedings in which both parties were not heard, it may be the subject of submissions by both parties before the issue of its recognition or its enforcement pursuant to the Convention of 27 September 1968 comes to be addressed.

(see paras 44, 46, 50, 52 , operative part 2)

3. In order for the decision by a court of a Contracting State establishing a liability limitation fund, as provided for under the International Convention of 10 October 1957 relating to the Limitation of the Liability of Owners of Sea-Going Ships, to be recognised in accordance with 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, the document instituting the proceedings for the establishment of such a fund must have been duly served on or notified to the claimant in good time, even where the latter has appealed against that decision in order to challenge the jurisdiction of the court which delivered it.

Where, however, regard being had to the special features of the national law applicable, that decision is to be treated as a document that is equivalent to a document instituting proceedings, it cannot, notwithstanding the fact that it was not previously served on the claimant, be refused recognition in another Contracting State pursuant to Article 27(2) of the Convention of 27 September 1968, on condition that it was itself duly notified to or served on the defendant in good time.

It is for the court of the State in which enforcement is sought to determine whether notification of the document instituting proceedings by way of registered letter within the context of proceedings for the establishment of a liability limitation fund, which is regarded as due and proper for purposes of the law of the original court and of the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, was effected in the due and proper manner and in sufficient time to enable the defendant effectively to arrange its defence.

(see paras 58-62, operative part 3)