THOMAS J: There are before the Court applications to stay two sets of
proceedings on the matters already before the Courts in Belgium. The
proceedings are closely related. Although the claimant in each case is the
same, the defendants are different. It is necessary to set out a little of the
background facts.
The supply of bunkers
The claimants ("the owners") are a Maltese company and own the vessel
Winter. In the first set of proceedings the defendants are North End Oil
("North End"). They are bunker suppliers and they carry on business
in Baker Street in London. While the vessel was on charter in 1995 to
Bulktrans HK Ltd for the time of a trip via the Black Sea to the Far East,
North End supplied bunkers to the vessel, first at Port Said on Oct 16 and
17, 1995 and, secondly, at Hong Kong on Nov 9 and 10, 1995.
Under the terms of the time trip charter-party, as between the owners
and Bulktrans, Bulktrans were responsible for the supply of bunkers. They
entered into an agreement with North End for supply of bunkers pursuant
to that obligation. North End's general conditions of contract provided as
follows in cl 6.5:
Marine Fuels are supplied on the faith and credit of the vessel (hereinafter
called "the vessel") to which they are supplied as well as on the faith and
credit of the Buyer and amounts due shall constitute liens against the
vessel.
There were many other terms and conditions and they purported to be
governed by the law of England with exclusive jurisdiction to the English
courts.
North End say that the contract was on those terms, but the owners say
that on each occasion the master stamped the receipt as follows:
BUNKERS RECEIVED FOR AND ON BEHALF OF CHARTERERS AND
MESSRS BULKTRANS HK, BAYSHORE, SINGAPORE WHO ARE SOLELY
RESPONSIBLE FOR PAYMENT OF SAME. VESSEL AND/OR Owners AND/
OR MASTER NOT TO BE RESPONSIBLE FOR PAYMENT OF THE BUNKERS
UNDER ANY CIRCUMSTANCES AND NO MARITIME NOR OTHER LIEN TO
ATTACH TO VESSEL IN RESPECT OF SAID BUNKERS.
They also say that before the supply at Port Said, they sent a letter to the
supply agent which read:
We have to inform you that bunkers received on behalf of charterers
Messrs Bulktrans Limited HK Bayshore, are solely responsible for payment
of the same. Vessel and/or Owners and/or Master not to be responsible
for payment of bunkers under any circumstances and no maritime lien or
other lien to attach to vessel in respect of the said bunkers. The above
letter handing you before bunkers, delivery and suppliers agree.
Bulktrans did not pay for those bunkers.
In the second set of proceedings the defendants were Marine Oil Trading
Ltd ("Marine"). They are suppliers of bunkers who carry on business at
Wigmore Street, London. While the vessel was on charter to in 1997 a
company called US Express Line ("US Express"), Marine supplied bunkers
to the vessel at Gibraltar on Oct 10, 1997. Under the terms of the time
trip charter-party as between US Express and the owners, US Express
were responsible for the supply of bunkers. US Express entered into a
contract with Marine who supplied the bunkers. Before the supply, a letter
was sent on behalf of the owners to the agent of Marine, which said:
We are the managers of MV Winter which is due to receive bunkers at
Gibraltar shortly. This is to advise you that the bunkers which are to
be supplied are for the account of time charterers, Messrs US Express
Lines, Paoli, Pennsylvania. Thus, the Owners will have no responsibility/
liability whatsoever for the payment of bunkers that will be supplied for
the vessel.
Please officially advise all parties concerned, including physical suppliers
accordingly and ask them to make sure they satisfy themselves with
payment as Owners will have no responsibility/liability whatsoever for
unpaid bunker invoices.
On the delivery it is said by the owners that the agents of Marine signed
receipts signed as follows:
BUNKERS RECEIVED FOR AND ON BEHALF OF CHARTERERS, MESSRS
US EXPRESS LINES, PENNSYLVANIA ARE SOLELY RESPONSIBLE FOR
THE PAYMENT OF THE SAME. VESSEL AND/OR Owners AND/OR MASTER
NOT TO BE RESPONSIBLE FOR THE PAYMENT OF BUNKERS UNDER ANY
CIRCUMSTANCES AND NO MARITIME NOR OTHER LIEN TO ATTACH TO
VESSEL IN RESPECT OF SAID BUNKERS.
The arrest of the vessel
On May 11 and 12, 1998 the suppliers, Marine and North End respectively
caused the vessel to be arrested at Antwerp pursuant to an order made
by the Judge of Arrest. It is common ground that before the Courts
in Belgium it is possible to effect such an arrest. This is because the
provisions of the 1952 Convention on the Arrest of Seagoing Ships, as
incorporated into Belgian law, have been held by the Courts in Belgium to
allow the arrest of the vessel in respect of a maritime claim against time
charterers so long as the arrested vessel is the same vessel as that to
which the bunkers were supplied.
On May 20, 1998, the vessel was released from arrest by the provision
of two guarantees each to Marine and North End. The first guarantee was
in respect of the claim which was asserted against the charterers and the
second was in respect of a claim against the owners.
On June 10 and 11, 1998 the owners commenced proceedings against the
suppliers at the Dendermonde Court of First Instance under an originating
process entitled either "Deed of Protest" or "Act of Opposition". These
were proceedings before the Judge of Arrest, to whose jurisdiction it will
be necessary to refer in greater detail later. The owners sought to have
the action declared unfounded, to have the arrest set aside and the letters
of guarantee returned, but they did not claim damages for wrongful
arrest.
It is common ground that these proceedings became pending under
Belgian law on June 10 and 17, 1998 when they were entered into the
record of the Court. Hearings took place between June 18 and Nov 22,
1998. The proceedings against North End were the active proceedings and
those against Marine awaited the outcome.
The claim made by the suppliers against the charterers
On July 3, 1998 Marine began proceedings before the High Court of
England and Wales against US Express Lines and obtained the permission
of this Court to serve them. Judgment in default was entered in those
proceedings on Sept 18, 1998.
On Oct 28, 1998 North End and Bulktrans reached agreement as to the
payment of the outstanding amount. North End accepted US$118,000 and
costs in full and final settlement.
Claims by the suppliers against the bank under the guarantees
North End then commenced proceedings before the Court in Antwerp
for payment under the guarantees. The bank which had issued the
guarantees was prepared to pay, but the owners intervened. The First
Instance Court ruled that they could but that the bank should pay. The
owners have appealed against this decision and, so far, no payment has
been made.
Marine also brought proceedings in Antwerp to claim under the guarantee,
but the Judge decided that the bank should not pay until the proceedings
before the Judge of Arrest had been concluded. In his judgment given on
Dec 9, 1998 he said that he would:
... declare the claim admissible and wellfounded to the following extent.
[He would] impose on the defendant [the bank] the prohibition to
effect any payment under the bank guarantee in favour of the company
governed by foreign law, Marine Oil Trading, beneficiary of this banking
guarantee as long as the legal proceedings on the merits of the case
pending before the Judge of Arrest of Dendermonde do not finally
decide about the admissibility and validity of the claim which led to the
conservatory arrest of the MV Winter.
Proceedings in this Court
On May 20, 1998 the owners began these proceedings against Marine Oil
and North End by the issue of writs. The proper service of the proceedings
took a little time and they were not served respectively until Jan 15 and
Jan 18, 1999. In these actions the owners claim, first, that there was
an agreement between them and each of the suppliers not to arrest the
vessel and, secondly, damages for the costs of issuing the guarantees,
for their liabilities to charterers and the amount that they might have to
pay under the guarantees. Immediately on service the suppliers sought
to stay these actions on the basis of arts 21 and 22 of the Judgments
Convention.
The decision of the Judge of Arrest at Dendermonde
Prior to the applications coming on for hearing there was a decision of the
Judge of Arrest at the Court of Dendermonde. That was given on Mar 2,
1999. The argument of the owners before the Judge was based on two
main propositions:
(1) That the supplier did not have a maritime claim because under the
provisions of the Belgian Code implementing the Arrest Convention, the
only party which could arrest was the party who delivered the bunkers
and not the party who sold the bunkers.
The Judge rejected this argument and held that a person who made
an agreement to supply bunkers, either with the charterers or with the
shipowner, could arrest the vessel. He did not have to be the party that
effected the delivery.
(2) The second proposition is the material argument for the purposes of
the application before me. It is that the supplier had renounced the right
to arrest. The owners argued that the party supplying the bunkers knew
the vessel would not be responsible and therefore had renounced the
right of arrest by reason of the various documents which I have set out at
the start of this judgment.
The Judge considered the facts and held that the supplier had not
renounced the right to arrest, that the supplier was entitled to a maritime
claim and had the right to arrest the vessel in respect of it.
The issues before the Court
Having summarized the facts, it is convenient to set out the five issues as
they originally emerged before this Court:
1. Are the proceedings before the Court of Dendermonde proceedings
to which art 24 of the Brussels Convention on jurisdiction and judgment
applies? In my view, and it is common ground, they were.
2. Are the proceedings before the Judge of Arrest at Dendermonde
determinative of various matters? This is the key issue before this Court.
3. If they are determinative, are arts 21 and 22 of the Convention
applicable, even if the measures in respect of which the determination
was made can be categorized as provisional? Again, there is no issue on
this, it is accepted that if they were determinative, arts 21 and 22 could
apply.
4. Do the proceedings before the Judge of Arrest and the proceedings
in this Court involve the same cause of action for the purposes of art
21, first as regards the facts and rule of law relied on and, secondly,
as regards the end in view? These issues involve the application of the
principles set out in The Tatry, [1995] 1 Lloyd's Rep 302; [1999] QB 515.
5. If art 21 is not applicable, should a stay, nonetheless, be granted under
art 22 or should this Court decline jurisdiction?
The first three issues and Belgian law
It is common ground that the proceedings in Belgium were proceedings
for provisional measures within the meaning of art 24. Furthermore, in
most cases where provisional measures are taken in one Court, arts 21
and 22 will be of no application to proceedings in another Court, as the
Court in which the provisional measures are taken will not be determining
anything of a substantive nature between the parties.
However, that may not always be the case. There can arise in the course
of proceedings, when provisional measures are taken, substantive matters
in respect of which the decision will be decisive of the litigation. If such
a substantive matter arises in the course of proceedings for provisional
measures, then there is no reason in principle why arts 21 and 22 should
not be applicable to the proceedings in which the substantive matter was
decided, provided the criteria in those articles are satisfied.
It therefore became necessary to consider the nature of the decision of
the Judge of Arrest.
When the matter first came before this Court on Monday May 10, 1999,
the only opinion on Belgian law was that of Mr Kegels. That opinion had
only been obtained on behalf of the owners on Friday May 7, 1999 and it
did not appear clearly to address the issue. I therefore gave leave to the
owners to obtain a supplemental opinion and to the suppliers to obtain
opinions themselves on terms that I would consider the opinions in the
light of further written submissions.
I was then provided with a further written opinion of Mr Kegels and an
opinion of Miss Veronique Carette, submitted on behalf of North End and
of Mr Peter Marcon on behalf of Marine and earlier this week with written
submissions from the parties in relation to those opinions.
Jurisdiction of the Judge of Arrest
The power to arrest ships in Belgium is governed by the Belgian Code of
Civil Procedure, the Code Judiciaire, which confers the jurisdiction on the
Judge of Arrest. Two articles are of importance:
(i) Article 1395.
All actions relating to conservatory arrests and means of enforcement are
to be brought before the Judge of Arrest.
(ii) Article 1489.1
The Judge of Arrest has exclusive jurisdiction to decide on disputes
relating to the regularity of conservatory arrest proceedings.
I was referred to a commentary by Albert Fettweis in "Bevoegdheid" on
the jurisdiction of the Judge of Arrest.
Within his competence the Judge has total jurisdiction for all matters
which regard the control of the conservatory and final arrests. He is
not deciding provisionally, but pronounces as in "summary procedure"
real final judgments which have fully binding effect (res judicata). His
jurisdiction is not limited as the one of the judge in summary proceedings.
He can, for example, declare an arrest valid; conversely he can pronounce
the nullity, order the lifting of the arrest and condemn to payment of
damages.
I should add that these are of course free translations and I am grateful
to the lawyers for providing them.
Effect on the merits
However, the jurisdiction of the Judge of Arrest is separate and quite
distinct from the jurisdiction of the Judge who will determine the merits of
the claim in respect of which the arrest is made. The Judge of Arrest does
not consider the merits and the merits will be referred to another Court,
such as the Commercial Court at Antwerp. Article 1489.2 of the code of
civil procedure provides:
The decision of the Judge of Arrest does not prejudice the substance of
the matter.
In the usual case the Judge of Arrest will consider the claim to see if
there is some substance in the maritime claim before permitting the
arrest. If his decision to permit an arrest in respect of a maritime claim is
challenged by the party whose ship is arrested, then the Judge of Arrest
must decide, on a test well below the balance of probabilities, whether
the facts disclosed in the claim give rise to a maritime claim or lien. If he
confirms the arrest his judgment will express a view on the merits of the
underlying maritime claim, but that judgment is not binding on the Court
which has to determine the merits. This is made clear by the commentary
of De Laval:
The decision of the Judge of Arrest which will touch the merits of the case
only briefly within the limited framework of the accomplishments of his
mission, does not prejudice the merits of the case (Article 1489.2). It
does not have binding authority towards the judge who decides on the
merits who is not bound by the decision of the Judge of Arrest.
The distinction between these two jurisdictions
It is helpful to refer to a decision of the Cour de Cassation of Belgium
of Sept 29, 1986 (RW 1986-7 2115-2116). The Courde Cassation gave
a decision on an appeal where the Court of Appeal had handed down a
decision on a matter which was related to the claim on the basis of which
the arrest was effected. It was not on the matter related to the lawfulness
or irregularity of arrest. The Cour de Cassation clarified the jurisdiction of
the Judge of Arrest in that case in the following terms:
Whereas the Judge of Arrest decides about actions related to the
means of enforcement; that he consequently has to decide whether or
not the arrest is lawful and regular; but he may not decide about the
disputes which are related to the enforcement but which do not concern
the lawfulness or regularity of the arrest; that he does not have the
jurisdiction to decide on the merits of the case, save for those exceptions
expressly stipulated by law.
If a matter is within the jurisdiction of the Judge of Arrest, it is common
ground that his decision is final, subject to appeal. In such a case the
matter can not be litigated a second time in another action (see art 25
of the Code of Civil Procedure). The decision is, under art 26 of that
Code a binding decision subject to appeal. Thus the Judge of Arrest will
determine whether there is a right of arrest in respect of a given type
of claim. For example, it is within the jurisdiction of the Judge of Arrest
that the Belgian Courts decided that a party who supplied bunkers to the
charterers of a vessel could arrest the vessel, notwithstanding that there
was no contract of sale between the shipowner and the supplier. See the
decisions of the Cour de Cassation in The Omala and The Heinrich J.
It is also common ground that the Judge of Arrest has jurisdiction to
award damages for wrongful arrest if the arrest was wrongful, but
damages can also be awarded by another tribunal. I was referred to a
passage in De Leval "Traite des Saiges":
In general when the arrest is lifted either the decision of the Judge of
Arrest acting on opposition (Article 1419) or another form of lifting the
arrest (Article 1420) or by the judge deciding the substance of the matter,
the arrested party may solicit from the one or the other magistrate the
condemnation of the arrestor for vexatious arrest.
The issue for decision on Belgian law
In this present case the issue under Belgian law is whether the
determination of the matter relied on by the owners to exclude the right
of arrest established in The Omala and The Heinrich J is a matter within
the jurisdiction of the Judge of Arrest, (so that the decision made by
him is final in the same way in which the right of arrest in The Omala
was finally decided as part of the jurisdiction of the Judge of Arrest) or
whether his determination has no binding effect. I am told that there is no
authority on Belgian law on this specific issue.
Mr Kegels of Kegels & Co, advocates of Antwerp, in his opinion states that
the determination of these matters is a question that goes to the merits
of the claim. Therefore the decision of the Judge of Arrest was provisional
only and of no binding effect. His opinion is that the sole function of the
Judge of Arrest was to determine whether the suppliers had made out a
sufficiently strong case to arrest the vessel. That was all.
The evidence of Miss Veronique Carette of Evanson & Co, advocates at
Antwerp, and Mr Peter Marcon of Marcon & Rubens, also advocates at
Antwerp, is that the issue goes to the jurisdiction to arrest and is within
the jurisdiction of the Judge of Arrest, as it is an issue on the validity of
the arrest. The decision of that Judge is therefore final as the question
whether the suppliers have renounced their right to arrest was an issue
that concerned the validity of arrest. It was not an issue on the merits of
the claim.
In determining this dispute, I have regard to the opinion and evidence
provided to me on Belgian law to which I have referred. It seems to me
clear that the vessel was arrested on two separate grounds. First, for the
personal liability of the owners for the bunkers supplied and, secondly, for
the liability imposed on the vessel in respect of the supply of bunkers to
it, quite irrespective of whether the owners are liable personally.
There is no dispute that the first question as to whether the owners are
liable personally is not a matter in respect of which the decision of the
Judge of Arrest is final. His decision is provisional only.
However, the position on the second question is different. There could
have been no dispute under Belgian law that the supplier has in general
the right to arrest a vessel if he makes out a sufficiently strong case in
respect of the supply. The challenge to the arrest on the second ground
was on the basis that the right to arrest had been precluded by the
actions the owners had taken when the bunkers were supplied. That is
an issue, in my view, which is an issue in relation to the validity of the
arrest. The owners are saying that there was no right to arrest in the
circumstances of this case. The issue is therefore an issue about that
right. It did not touch on the underlying merits of the amount due, or
the question of whether the owners were liable personally for the supply.
Those two matters go to the merits. However, the issue in relation to
whether the suppliers have contracted out of the right to arrest is an issue
that seems to me plainly to go to the validity of arrest.
It seems to me that my view is consistent and supported by the view of
the Judge who, as I have mentioned, on Dec 9, 1998 stayed enforcement
of the guarantee against the bank in the claim made by Marine. There
would have been little point in making that stay had not the decision of
the Judge of Arrest been determinative of the original arrest and hence
the guarantees. I will take by way of an example the fairly common
situation of a P & I Club providing a letter of undertaking in respect of
a claim in consideration for the vessel not being arrested. If the vessel
is arrested thereafter and there is a dispute on whether the letter of
undertaking prevented the arrest for a claim, or part of it, it seems to
me that that is an issue which goes to the validity of the arrest and not
to the underlying merits of the claim. It seems to me that the present
situation is exactly the same and the view that I have formed on this
undecided point of Belgian law seems to me to be supported strongly by
the inference I have drawn from the decision of the Judge who stayed the
claim on Dec 9, 1998.
Thus, on the view I have formed on this issue, the decision of the Belgian
Judge of Arrest has finally determined the issue of whether the suppliers,
North End were entitled to arrest the vessel and whether the right of
arrest had been excluded.
Issue 4
The applicable principles are set out in the judgment of the European
Court of Justice in The Tatry, [1999] QB 515 (as a note) and also in
[1995] 1 Lloyd's Rep 302. The important part of the judgment for these
purposes is set out at pars 38-44 of the judgment of the Court, but it is
convenient if I first set out art 21:
Where proceedings involving the same cause of action between the
same parties and brought in courts of different contracting states, any
court other than the court first seised shall of its own motion stay the
proceedings within such time as the jurisdiction of the court first seised is
established.
Where the jurisdiction of the court first seised is established any court
other than the court first seised shall decline jurisdiction in favour of that
court.
The Court said in The Tatry:
38. It should be noted at the outset that the English version of art 21
does not expressly distinguish between the concepts of "object" and
"cause" of action. That language version must however be construed in
the same manner as the majority of the other language versions in which
the distinction is made (see the judgment in Gubisch Maschinenfabrik v
Palumbo cited above).
39. For the purpose of art 21 of the Convention, the "cause of action"
comprises the acts and the rule of law relied on as the basis of the action.
40. Consequently, an action for a declaration of non-liability, such as
that brought in the main proceedings in this case by the shipowners, and
another action, such as that brought subsequently by the cargo-owners
on the basis of shipping contracts which are separate but in identical
terms, concerning the same cargo transported in bulk and damaged in the
same circumstances, the same cause of action.
41. The "object of the action" for the purposes of art 21 means the end
the action has in view.
42. The question accordingly arises whether two actions have the same
object when the first seeks a declaration that the plaintiff is not liable
for damage claimed by the defendants, while the second commenced
subsequently by those defendants seeks on the contrary to have the
plaintiff in the first action held liable for causing loss and ordered to pay
damages.
43. As to liability, the second action has the same object as the first, since
the issue of liability is central to both actions. The fact that the plaintiffs
pleadings are couched in negative terms in the first action whereas in
the second action they are couched in positive terms by the defendant,
who has become the plaintiff, does not make the object of the dispute
different.
44. As to damages the pleas in the second action are the natural
consequences of those relating to the finding of liability and thus do not
alter the principle object of the action. Furthermore, the fact that a party
seeks a declaration that he is not liable for loss implies that he disputes
any obligation to pay damages.
I therefore address the two questions raised.
(1) Are the facts and the rules of law relied on the same in both sets of
proceedings?
In my view they clearly are. The facts raised before the Judge of Arrest
are identical to those raised in the pleadings in the action in England and
Wales. Similarly the same rule of law is relied on whether the parties have
contracted out of the right to obtain security or the right to arrest the
vessel in respect of the supply of bunkers.
(2) Is the objective of the action or the end in view the same in both
actions?
Mr Edwards, who appeared for the suppliers, argued that the proceedings
plainly had the same end in view as the owners were seeking
the determination that the arrest was wrongful and seeking relief
consequential on that in both proceedings. In the Belgian proceedings
they were claiming the consequential relief on the return of the
guarantee; in England and Wales they were claiming damages. Both
proceedings had the same end in view, as the relief was consequential on
the same basic claim.
Mr Snider, who appeared for the owners and argued this matter with
considerable ability, contended that the end in view was not the same.
In the proceedings in this Court damages were being claimed, whereas
before the Judge of Arrest the owners had not claimed damages. The
object of the actions was therefore different and they did not have the
same end in view.
It seems to me clear that the actions did in fact have the same end
in view. They both seek the determination of the issue of whether the
arrest is valid and each claimed relief. The fact that the claim in Belgium
has been confined to one set of consequences does not mean that the
actions do not have the same end in view. Article 21 cannot have been
intended to allow a claimant to make the same claim in two jurisdictions
merely by confining part of the consequential relief claimed in one of the
jurisdictions to circumstances where the consequential relief inevitably
follows from the determination of the finding of liability.
On the facts of this case, if it were determined that the owners and
suppliers had contracted out of the right to arrest, then there could be no
dispute that the guarantees had to be cancelled and that damages would
lie for the wrongful arrest. It seems to me therefore clear that the end in
view of both actions is the same, as the relief is purely consequential on
the determination of that point.
Issue 5
I will express my views briefly, as, in view of the clear decision to which
I have come on art 21, it is not necessary for the suppliers to rely on art
22. Article 22 provides as follows:
Where related actions are brought in the courts of differing Contracting
States, any court other than the court first seised may, while the actions
are pending at first instance stay its proceedings.
The courts, other than the court first seised, may also on the application
of the parties, decline jurisdiction if the law of that court permits the
consolidation of related actions and the court first seised has jurisdiction
over both actions.
For the purpose of this Article, actions are deemed to be related where
they are so closely connected that it is expedient to hear and determine
them together to avoid the risk of irreconcilable judgments resulting from
separate proceedings.
In my view it is clear that the claim for damages and the claim in respect
of the return of the guarantees should be heard together. The only
purpose of the proceedings before this Court can be to try and obtain a
result that is different to the result that is likely to be obtained in Belgium
and set up irreconcilable judgments.
As regards the claim against North End, the application to this Court for a
stay was made on Jan 21, 1999 very shortly after the proceedings were
served and when no judgment had been rendered by the Judge of Arrest.
Therefore, when the application was made, the Belgian proceedings were
still pending at first instance. However, as is clear from the facts which I
have set out, those proceedings are no longer pending at first instance.
Therefore, as at this stage, the condition set out in the first paragraph of
art 21 does not apply, because that article provides that the actions must
be pending at first instance.
It is not clear from the jurisprudence to which my attention has been
drawn which is the relevant time, whether it is the time at which the
application was made, or the time when the Court comes to hear the
argument or give its decision. If the relevant time is the time of the
application, then in my view this clearly would have been an appropriate
case to stay because the proceedings were started first in Belgium, the
issue is essentially one and the same and the issue is very closely related
to Belgian law and much more appropriate for decision in Belgium for the
reasons I shall give.
If the relevant time is the time that the argument is made or the time of
judgment, then the case is no longer pending at first instance. In such
circumstances, however, it seems to me that this Court would have power
to decline jurisdiction under the second paragraph of art 22. It was not
disputed that the Court would have such power provided the law of the
Court in Belgium permits the consolidation of related actions, and that the
Court in Belgium would have jurisdiction over the subject of both actions.
The Judge of Arrest in Belgium has jurisdiction to award damages and,
for the reasons I have already given, he has a jurisdiction to determine
the substantive issue. I am also satisfied on the evidence before me that
the matters can be consolidated and can be heard in that action. I would,
therefore, have decided, in respect of the North End action, to decline
jurisdiction had the question arisen under art 22 and have stayed all
further proceedings in this Court under its inherent powers.
As regards the claim by Marine Oil, the action is still pending at first
instance and therefore the first paragraph of art 22 is, in principle,
applicable.
In my view there are overwhelming reasons for staying these actions. The
proceedings in Belgium began first. The issue involves, in my judgment,
questions that are far better and more easily determined in Belgium.
The question involves the essential issue as to whether the arrest made
in Belgium was valid. That, it seems to me, is best determined by the
Belgian Courts, for the right to arrest in this type of claim is a right that
is known to the Courts of Belgium and not to the Courts of England and
Wales. It seems to me that an issue which goes to the essential validity of
the arrest would best be determined in Belgium, particularly as the matter
is well underway in that jurisdiction.
Furthermore, there is the additional ground that, as I have already set
out, the proceedings in Belgium are closely related to the proceedings
involving North End and it is clear from the way in which the litigation has
been pursued in that country that the North End case is regarded as the
lead action. Therefore, if a question had arisen, for me to consider art 22
in respect of the Marine Oil claim, I would, in those circumstances also
have stayed the proceedings.
Conclusion
I therefore, for the reasons I have given, grant the application of both
suppliers, North End and Marine Oil, to stay these actions.