Mr. Justice CLARKE:
In these actions the plaintiffs claim as owners of a cargo of wood
pulp which was shipped on the defendants' vessel B. at Wilmington in
the United States of America on or before Dec. 27, 1994. The cargo
concerned in action 1995 Folio No. 70 was shipped under bill of lading No.
1 dated Dec. 27, 1994, whereas that concerned in action 1995 Folio No.
71 was shipped under bills of lading Nos. 2, 3 and 4 of the same date. All
the bills of lading are liner bills in the same form and evidence contracts
of carriage from Wilmington to Aberdeen in Scotland. They all incorporate
the Hague Rules and contain the same jurisdiction clause which is in these
terms:
3. Jurisdiction
Any dispute arising under this bill of lading shall be decided in the country
where the carrier has his principal place of business, and the law of such
country shall apply except as provided elsewhere herein.
The defendants are German shipowners whose principal place of business
is in Germany. It follows that the parties to the contracts of carriage
agreed that any dispute arising under the bills of lading would be decided
in Germany under German law.
It is common ground that the plaintiffs' claims in these actions give rise
to disputes which arise under the bills of lading within the meaning of
cl. 3. The vessel sailed from Wilmington on or about Dec. 27, 1994. The
plaintiffs' case is pleaded as follows in pars. 9 to 12 of the consolidated
statement of claim:
9. In the early morning of 5th January 1995, when the vessel was
approximately 700 miles east of Nova Scotia, the crew observed smoke
issuing from the hatch covers of the vessel's no 2 hold and inferred that
the cargo contained in the hold was on fire. Measures were taken to
extinguish the fire by the introduction of carbon dioxide into the hold and
the vessel continued on her voyage.
10. The vessel arrived off Falmouth on 9th January 1995 and general
average was declared. The vessel was attended by HM Coastguard, the
Marine Pollution Control Unit and the Cornwall County Fire Service, the
last instructing that the vessel's hatches be sealed with foam.
11. On 15th January 1995, the defendants engaged salvors, under the
terms of the LOF, to extinguish the fire and to escort and/or tow the
vessel to Aberdeen.
12. Between 28th January and 3rd February 1995, the cargo was
discharged and re-stowed and certain of the cargo found to be damaged
removed. The vessel thereafter proceeded to Aberdeen where the
remainder of the cargo was discharged between 7th and 9th February
1995. The plaintiffs were obliged to provide and/or procure a general
average bond and a general average guarantee in order to obtain delivery
of the cargo.
The plaintiffs' claim in respect of alleged loss and damage to their cargo
amounts to some £230,000 and in respect of their liability to the salvors
amounts to some DF1 665,880, all of which they say was caused by the
defendants' breach of art. III, rr. 1 and/or 2 of the Hague Rules. In short
it is a typical cargo claim.
The defendants rely upon the exclusive jurisdiction clause in the bills of
lading in two ways. First they say that the proceedings should be set aside
for want of jurisdiction under art. 17 of the Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters ('the
Brussels Convention' or the 'Convention'). Alternatively they say that
the actions should be stayed under the Court's inherent jurisdiction on
the ground that the plaintiffs should be held to the express terms of the
agreement contained in cl. 3 of each bill of lading that disputes of this
kind are to be determined in Germany.
Article 17
Article 17 of the Brussels Convention provides, so far as material, as
follows:
If the parties, one or more of whom is domiciled in a Contracting State
have agreed that a court or the courts of a Contracting State are to have
jurisdiction to settle any dispute which has arisen or which may arise
in connection with a particular legal relationship, that court or those
courts shall have exclusive jurisdiction. Such an agreement conferring
jurisdiction shall be either:
(a) in writing or evidenced in writing, or
(b) in a form which accords with the practices which the parties have
established between themselves, or
(c) in international trade or commerce in a form which accords with
a usage of which the parties are or ought to have been aware and in
which such trade or commerce is widely known to and regularly observed
by parties to contracts of the type in the particular trade or commerce
concerned.
As I understand it, it is accepted by the plaintiffs that the criteria set out
in art. 17 are satisfied in that in each case: 1. the parties have agreed
that the Courts of Germany are to have jurisdiction to settle the disputes
that are the subject matter of the present actions; and 2. the jurisdiction-
conferring agreement satisfies each of the individual limbs of art. 17, in
that (a) the agreement was in writing; (b) the agreement was in a form
which accorded with the manner in which the parties conducted their
commercial relationship since the parties had concluded 32 previous bill
of lading contracts on materially identical terms, each of which was for
the carriage of similar cargoes from the U.S.A. to Aberdeen; and (c) the
agreement was in a form (the Conline bill) that was widely known and
regularly used in this particular trade.
The only issue between the parties under this head is whether art. 17
has any application at all. The plaintiffs say that it does not. They rely
upon art. 57 of the Convention (as amended) and upon art. 7 of the
International Convention for Unification of Certain Rules relating to the
Arrest of Sea-going Ships, 1952 ('the Arrest Convention'). Article 57
provides in its present form, so far as material, as follows:
1. This Convention shall not affect any conventions to which the
Contracting States are or will be parties and which in relation to particular
matters, govern jurisdiction or the recognition or enforcement of
judgments.
2. With a view to its uniform interpretation, paragraph 1 shall be applied
in the following manner: (a) this Convention shall not prevent a court
of a Contracting State which is a party to a convention on a particular
matter from assuming jurisdiction in accordance with that Convention,
even where the defendant is domiciled in another Contracting State which
is not a party to that Convention. The court hearing the action shall, in
any event, apply Article 20 of this Convention....
It is not in dispute that the Arrest Convention is one of the Conventions
referred to in art. 57: The Anna H, [1995] 1 Lloyd's Rep. 11 per Lord
Justice Hobhouse at p. 17.
Article 7 of the Arrest Convention, provides, so far as material, as follows:
1. The Courts of the country in which the arrest was made shall have
jurisdiction to determine the case upon its merits:
- if the domestic law of the country in which the arrest is made gives
jurisdiction to such Courts;
- or in any of the following cases namely:...
2. If the Court within whose jurisdiction the ship was arrested has no
jurisdiction to decide upon the merits, the bail or other security given
in accordance with article 5 to procure the release of the ship shall
specifically provide that it is given as security for the satisfaction of
any judgment which may eventually be pronounced by a Court having
jurisdiction so to decide: and the Court or other appropriate judicial
authority of the country in which the arrest is made shall fix the time
within which the claimant shall bring an action before a Court having such
jurisdiction.
3. If the parties have agreed to submit the dispute to the jurisdiction of a
particular Court other than that within whose jurisdiction the arrest was
made or to arbitration, the Court or other appropriate judicial authority
within whose jurisdiction the arrest was made may fix the time within
which the claimant shall bring proceedings....
In The Anna H Lord Justice Hobhouse said at p. 21 that the Brussels
Convention was to be construed in such a way that -
...the full Admiralty jurisdiction in rem of the English Courts is to continue.
In the same case I had expressed the view at first instance that the
expression 'domestic law' in art. 7 means:
...the domestic law unaffected by any alterations effected by other
provisions of the 1968 Convention [see [1994] 1 Lloyd's Rep. 287 at 294].
I do not think that the Court of Appeal disagreed with that view and I
adhere to it. It is common ground that under English domestic law this
Court has jurisdiction to hear and determine the plaintiffs' claims under
s. 20(2) of the Supreme Court Act, 1981 and that they were entitled to
bring their actions in rem under s. 21(4) of the same Act.
The plaintiffs say that where it applies the effect of art. 17 is to deprive
the Courts of other Contracting States of jurisdiction in accordance
with their domestic law. It follows, they say, that if art. 17 applies it
deprives this Court of jurisdiction, either automatically or alternatively
once the point is taken (cf. arts. 16 and 19). They add that if art. 17
were permitted to have that effect they would be deprived of their right
to have their claims determined on the merits under art. 7 of the Arrest
Convention in accordance with English domestic law, whereas that right is
expressly preserved by art. 57 of the Brussels Convention.
Unassisted by authority I would accept that submission. Article 7 of the
Arrest Convention is preserved by art. 57 of the Brussels Convention.
It confers jurisdiction upon the Courts of the state in which the arrest
is made to determine the case upon its merits in accordance with the
domestic law of that state. In the instant case the vessel was properly
served and arrested in England. It follows that the English Court has
jurisdiction to determine the plaintiffs' claims on the merits in accordance
with English domestic law. As so far understood the position under English
domestic law is that the Court retains jurisdiction to determine the
plaintiffs' claim on the merits even in a case where there is an exclusive
jurisdiction clause which provides for the determination of the dispute in
a foreign Court, but the Court has a discretion to stay the action, which it
will exercise unless strong cause why it should not do so is shown:The El
Amria, [1981] 2 Lloyd's Rep. 119.
If art. 17 applies and is relied upon the Court will be bound to hold that
it has no jurisdiction and will have no such discretion. In that event the
Court would not be applying English domestic law in accordance with art.
7 of the Arrest Convention. It follows that in the absence of authority
I would conclude that the plaintiffs are right in their submission that
there is a conflict between art. 17 of the Brussels Convention and art. 7
of the Arrest Convention and that, by reason of art. 57 of the Brussels
Convention, art. 7 must prevail. That conclusion seems to me to follow
logically from the express provisions of art. 57.2 quoted above, namely
that:
...this Convention shall not prevent a Court of a Contracting State which is
a party to a convention on a particular matter from assuming jurisdiction
in accordance with that Convention...
This Court has jurisdiction over the plaintiffs' claim under the Arrest
Convention. The effect of the defendants' argument is (as I see it) that
the Court is being asked to refuse to assume jurisdiction because of art.
17. If it were to do so the Brussels Convention would, by art. 17, be
preventing this Court from assuming jurisdiction in accordance with the
Arrest Convention, which is the very thing which is expressly prohibited
by art. 57.2 of the Brussels Convention.
None of the cases to which I have been referred expressly decides this
point. But in my judgment the above conclusion is supported by the
reasoning of the Court of Appeal in Continental Bank N.A. v. Aeakos
Compania Naviera S.A., [1994] 1 Lloyd's Rep. 505; [1994] 1 W.L.R. 588
and The Anna H and is not inconsistent with the decision or reasoning
of the European Court in The Maciej Rataj, [1995] 1 Lloyd's Rep. 302;
[1994] E.C.R. I-5439. In Continental Bank N.A. v. Aeakos Compania
Naveira S.A. the Court of Appeal held that where art. 17 applies there is
no room for the application of arts. 21 or 22. In delivering the judgment
of the Court, Lord Justice Steyn said at pp. 510-511; pp. 596-597:
...Article 17 follows the civilian approach. Article 17 has mandatory effect.
When art. 17 applies it follows that the jurisdiction agreement prorogates
(confers) jurisdiction on the Courts of the Contracting State chosen by the
parties, and that the jurisdiction agreement deprives the Courts of other
Contracting States of jurisdiction. Indeed, it is the duty of the Courts of
other Contracting States of their own motion to consider whether art.
17 applies and to decline jurisdiction if it does: Schlosser Report (Official
Journal 1979 No. C 59, p. 81 par. 22). There is no discretionary power
in the Convention itself to override the conclusive effect of an exclusive
jurisdiction agreement which conforms with the requirements of art. 17.
It follows that if art. 17 applies its provisions take precedence over the
provisions of arts. 21 and 22.
The structure and logic of the Convention convincingly points to this
conclusion. The reasons supporting this conclusion are, however, not
formalistic. The consequences that would flow from the adoption of the
submission of Miss Dohmann are startling. Article 21 provides that there
shall be a mandatory stay of proceedings in favour of the Court first
seised, if Courts of different Contracting States are seised of proceedings
involving 'the same cause of action.' If Miss Dohmann's submission
is correct, it follows that a party will be able to override an exclusive
jurisdiction agreement which is governed by art. 17, by pre-emptively
suing in the Courts of another Contracting State. The Courts of the
latter state which ex hypothesi have been deprived of jurisdiction would
then be 'the court first seised.' The chosen Court of the parties would
then be obliged to decline jurisdiction or, if the jurisdiction of the other
Court is contested, to stay its proceedings. In this way a party who
is in breach of the contract will be able to set at naught an exclusive
jurisdiction agreement which is the product of the free will of the parties.
The principle of the autonomy of the parties, enshrined in art. 17, cannot
countenance such a conclusion.
Mr. Gaisman relies in particular upon the statements of Lord Justice
Steyn that when art. 17 applies, (a) it deprives the Courts of other
Contracting States of jurisdiction and (b) it is the duty of the Courts of
other Contracting States of their own motion to consider whether art. 17
applies and to decline jurisdiction if it does. Paragraph 22 of the Schlosser
Report (which, by s. 3(3) of the Civil Jurisdiction and Judgments Act,
1982, may be considered in ascertaining the meaning or effect of the
Convention) is to this effect:
Under Articles 19 and 20 of the 1968 Convention the provisions
concerning 'direct jurisdiction' are to be observed by the court of its own
motion: in some cases, ie where exclusive jurisdiction exists, irrespective
of whether the defendant takes any steps; in other cases only where the
defendant challenges the jurisdiction. Similarly, a court must also of its
own motion consider whether there exists an agreement on jurisdiction
which excludes the court's jurisdiction and which is valid in accordance
with Article 17.
Mr. Gaisman correctly submits that it follows from those statements of
Lord Justice Steyn and Professor Dr. Schlosser that if art. 17 applies the
Court would have to refuse to assume jurisdiction under art. 7 of the
Arrest Convention. Yet (as already stated) that is the very thing that is
prohibited by art. 57.2.
Mr. Persey submits, on the other hand, that those statements by Lord
Justice Steyn and Professor Dr. Schlosser are wrong and should not
be followed in the light of the decision of the European Court in The
Maciej Rataj. I shall return to that decision in a moment, but Mr. Persey
also criticizes the opinion of Professor Dr. Schlosser with regard to
art. 17 on the grounds that art. 19 expressly refers only to cases of
exclusive jurisdiction under art. 16 and art. 20 refers only to the case of
a defendant domiciled in one Contracting State who is sued in another
Contracting State. He submits, therefore, that there is nothing in the
Convention to impose upon the Courts a duty to consider whether art.
17 applies of its own motion. There is undoubtedly logical force in that
submission. However the point was apparent to Professor Dr. Schlosser
because he does not say that arts. 19 and 20 apply directly, but merely
that 'similarly' the Court must consider whether art. 17 applies on its own
motion. I cannot believe that the point was not equally apparent to the
Court of Appeal.
It follows that, where art. 17 applies, a Court which would otherwise
have jurisdiction under (say) art. 2 does not have jurisdiction under the
Convention. Moreover, subject presumably to waiver, it must be treated
as never having had jurisdiction and the Court concerned must take the
point of its own motion. This case is not concerned with waiver, but a
party entitled to rely upon a jurisdiction clause is presumably entitled to
waive his right to rely upon it, just as the parties are presumably entitled
to agree to vary the contract by deleting the jurisdiction clause. I should
also note in passing that this is not a case in which the question whether
the Court should take the point of its own motion could arise on the
facts because the defendants relied upon art. 17 before the vessel was
arrested.
Mr. Persey submits that the statements of Lord Justice Steyn which
are relied upon by Mr. Gaisman are not part of the ratio decidendi of
Continental Bank v. Aeakos, but that they are obiter dicta and that I
am not bound by them. However, in my judgment, they are part of the
reasoning which led the Court of Appeal to the conclusion that if art. 17
applies its provisions take precedence over the provisions of arts. 21 and
22. It follows that I am bound by them unless they are inconsistent with
the subsequent decision of the European Court in The Maciej Rataj.
It follows that (subject to that decision) I am bound to hold that when
art. 17 applies, the jurisdiction agreement deprives the Courts of other
Contracting States of jurisdiction. It would therefore deprive this Court of
jurisdiction under art. 7 of the Arrest Convention and would thus fall foul
of art. 57.2 of the Brussels Convention.
Mr. Gaisman also relies upon the decision and reasoning in The Anna H,
where the Court of Appeal held that a Court which had jurisdiction under
art. 7 of the Arrest Convention was not deprived of that jurisdiction by
the provisions of art. 2 of the Brussels Convention. Lord Justice Hobhouse
described the relationship between the two Conventions in this way (at p.
18):
The two Conventions are to be read together. Their relationship is of the
special to the general. Where special provision is made in the special
Convention, it shall govern; where no special provision is made the
general provisions of the Judgments Convention apply. Accordingly, within
its scope, the Arrest Convention governs the jurisdiction of the Admiralty
Court and prevails over the provisions of the Judgment Convention.
In this case (as explained above) the English Court has jurisdiction on the
merits under arts. 2 and 7 of the Arrest Convention because the domestic
law of England gives the Court jurisdiction under ss. 20(2) and 20(4) of
the Supreme Court Act, 1981. It follows that special provision is made in
the special Convention so that in the words of Lord Justice Hobhouse 'it
shall govern'.
Mr. Persey submits that if the two Conventions are read together, as
Lord Justice Hobhouse said that they should be, art. 7 of the Arrest
Convention should be treated in the same way as (say) art. 2 of the
Brussels Convention, with the result that, like art. 2, it must be read
subject to art. 17. That submission has some attraction, but it is not in
my judgment correct for the reason which I tried to give earlier, namely
that there is a conflict between art. 7 of the Arrest Convention and art.
17 of the Brussels Convention because art. 7 applies English domestic law
under which the Court has jurisdiction, but has a discretion whether to
order the action to be stayed, whereas under art. 17 it would be bound to
hold that it had no jurisdiction: see Continental Bank v. Aeakos S.A.
Mr. Persey further relies upon the decision of the European Court in The
Maciej Rataj. However, in my judgment, neither the decision nor the
reasoning in that case leads to any conclusion different from that stated
above. In that case plaintiff cargo-owners brought an English Admiralty
action in rem seeking damages from shipowners for alleged breaches
of a contract or carriage by sea. The shipowners relied upon art. 21 of
the Brussels Convention on the ground that they had already begun
proceedings in Holland inter alia for a declaration that they were not liable
to the plaintiffs or some of them. The Court of Appeal asked the European
Court a number of questions including what was the third question, which
in par. 22 the European Court said was essentially:
Whether, on a proper construction, Article 57 of the Convention, as
amended by the Accession Convention, 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 always,
subject to express exceptions, precludes the application of the Brussels
Convention, or that the specialized convention precludes the application of
the provisions of the Brussels Convention only in cases governed by it and
not in those to which it does not apply.
In pars. 24 and 25 the European Court said this:
24 Article 57 introduces an exception to the general rule that the
Convention takes precedence over other conventions signed by the
Contracting States on jurisdiction and the recognition and enforcement of
judgments. The purpose of that exception is to ensure compliance with
the rules on jurisdiction laid down by specialized conventions, since in
enacting those rules account was taken of the specific features of the
matters to which they relate.
25 That being its purpose, Article 57 must be understood as precluding
the application of the provisions of the Brussels Convention solely in
relation to questions governed by a specialized convention. A contrary
interpretation would be incompatible with the objective of the Convention
which, according to this preamble, is to strengthen in the Community
the legal protection of persons therein established and to facilitate
recognition of judgments in order to secure their enforcement. In those
circumstances, when a specialized convention contains certain rules of
jurisdiction but no provision as to lis pendens or related actions, Article 21
and 22 of the Brussels Convention apply.
The cargo-owners argued that art. 3(3) of the Arrest Convention contains
provisions relating to lis pendens so that arts. 21 and 22 of the Brussels
Convention did not apply. The European Court rejected that contention. In
par. 27 it said of art. 21:
That provision is concerned with the situation where proceedings are
brought before two courts both of which have jurisdiction and it governs
only the question which of the two courts is to decline jurisdiction in the
case.
Accordingly the European Court concluded as follows:
The answer to the third question therefore is that, on a proper
construction, Article 57 of the Convention, as amended by the Accession
Convention, 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.
Mr. Persey's submissions may be summarized as follows:
1. The Arrest Convention does not displace the Brussels Convention. They
are to be read together.
2. Article 57 of the Brussels Convention precludes the application of the
provisions of that Convention solely in relation to those matters governed
by the Arrest Convention: see The Maciej Rataj at par. 25.
3. The Arrest Convention, in so far as it has been incorporated into
English law, makes no provision for what is to occur when the parties to
a maritime claim in which jurisdiction has been founded by arrest have
agreed to submit their claims to the jurisdiction of another Court, just, for
example, as it makes no provision for what is to occur in cases of lis alibi
pendens.
4. Further or alternatively, art. 17 does not affect the plaintiffs' right
to found merits jurisdiction by arrest. The operation of art. 17 is not
triggered unless and until it is invoked by a defendant who invites the
Court to give effect to the jurisdiction clause (cf arts. 16 and 19 of the
Brussels Convention).
Mr. Gaisman's submissions, on the other hand may be summarised
as follows. There is a conflict between the jurisdiction provisions of
the Arrest Convention and the jurisdiction provisions of the Brussels
Convention for the reasons already given, namely that the effect of art.
17 of the Brussels Convention would be to deprive the English Court
of the jurisdiction conferred upon it by art. 7 of the Arrest Convention
to determine the case on its merits if English domestic law gives it
jurisdiction to do so. English domestic law does give it jurisdiction,
although the Court may stay the action by reason of the exclusive
jurisdiction clause. The effect of art. 17 would be to deprive the Court
of any jurisdiction at all. It follows that there is a conflict between
the jurisdiction provisions of the two Conventions and the jurisdiction
provisions of the Arrest Convention must prevail. The Maciej Rataj is
thus of no assistance because it is a case involving lis pendens and is not
about original jurisdiction at all. In the instant case the defendants are not
inviting the Court to renounce a jurisdiction which it has, but are seeking
to deny the existence of such a jurisdiction because that is the effect of
art. 17.
I prefer the submissions of Mr. Gaisman. The Maciej Rataj was concerned
with a case where two different Courts had jurisdiction and the question
was which Court should exercise it. The Advocate General had referred
with approval to the decisions of Mr. Justice Hobhouse in The Nordglimt,
[1987] 2 Lloyd's Rep. 470; [1988] Q.B. 183 and of Mr. Justice Sheen
in The Linda, [1988] 1 Lloyd's Rep. 174. In The Nordglimt Mr. Justice
Hobhouse said at p. 483, col. 2; pp. 202-203:
Why does art. 21 use the phrase the Court 'shall of its own motion decline
jurisdiction'? It was argued by the defendants before me that this showed
that the Court must be deemed never to have had jurisdiction. I do
not consider this to be a correct reading of art. 21. The wording can be
contrasted with, for example, the wording of art. 19 which says that the
Court 'shall declare of its own motion that it has no jurisdiction'. If a Court
has no jurisdiction then no question of lis pendens arises. The Court must
treat the proceedings as incompetent ab initio. Article 21 deals with a
different situation. The proceedings are brought within the jurisdiction
of the Court, but the Court must decline jurisdiction because of the lis
pendens in another Court.
I accept Mr. Gaisman's submission that the same distinction is to be
drawn here. As the European Court put it in par. 27, art. 21 -
...is concerned with the situation where proceedings are brought before
two Courts both of which have jurisdiction and it governs only the
question which of the two Courts is to decline jurisdiction in the case.
In my judgment, by 'decline jurisdiction' the Court meant decline to
exercise its jurisdiction, just as Mr. Justice Hobhouse did in the passage
quoted above. The effect of art. 17, where it applies, is different, namely
to deprive the Court of original jurisdiction. Accordingly, its effect is
not that another Court must decline to exercise a jurisdiction which it
otherwise has, as is the case under art. 21, but that it must decline
jurisdiction on the ground that it never had it. Moreover, subject to waiver,
it must do so of its own motion, although (as already stated), even if that
is not correct, it must do so once the point is taken and, on the facts of
this case, the point was taken before the vessel was arrested.
Conclusion
It follows that I have reached the conclusion that, for the reasons which
I have tried to give, art. 17 has no application to the facts of this case.
It is, however, to be noted that the conclusions of principle which I have
reached are unlikely to have far-reaching consequences because the
practical result of applying art. 17 on the one hand and the principles
of English domestic law on the other is likely to be the same in the vast
majority of cases. As already stated, the cases decided so far show that
the action will be stayed and the parties kept to their bargain unless
strong cause to the contrary is shown. Indeed the defendants invite the
Court to stay the action on that ground in this case. They say that The El
Amria should no longer be followed and that, in any event, the plaintiffs
cannot show strong cause why the action should not be stayed. Those
issues have been adjourned. So I say nothing about them at present. But,
for the reasons which I have tried to give, I decline to hold that the Court
has no jurisdiction by reason of art. 17 of the Brussels Convention. In my
judgment, the Court had and retains jurisdiction by reason of art. 7 of the
Arrest Convention. Whether it should exercise that jurisdiction or stay the
action remains to be seen.