C-406/92

O P I N I O N OF M R T E S A U R O — CASE C-406/92

OPINION OF ADVOCATE GENERAL TESAURO delivered on 13 July 1994 *

Mr President, In September 1988 the Polish shipping com­ Members of the Court, pany Żegluga Polska Spolka Akceyjna ('the shipowners') carried from Brazil to Rotter­ dam and Hamburg a cargo of soya bean oil in bulk aboard its vessel, the Tatry. The cargo belonged to various principals, and was carried under separate bills of lading in identical terms. O n delivery of the cargo, both the part discharged in Rotterdam and the part discharged in Hamburg were found by its owners to have been contaminated by 1. In the order for reference in the present diesel oil and other hydrocarbons. case, the English Court of Appeal has sub­ mitted a number of questions on the inter­ pretation of Articles 21, 22 and 57 of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the 1978 Accession Conven­ tion ('the Brussels Convention').

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defendants in the proceedings (from here on cases both in rem and in personam or only in I shall refer collectively to the owners of the personam. cargo discharged in Hamburg as 'Group 3'). Nor was Phibro a defendant in the proceed- ings in respect of the parts of the cargo dis- charged in Rotterdam, of which it was also the owner and of which delivery was taken, on its behalf, by the Netherlands company O n the same day, 14 September 1989, Group ICM BV ('Group 2'). 2 also commenced an action in rem before the same court (hereinafter 'Action 2007'); the course of events was the same as in Action 2006.

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the same parties in the Netherlands. In the In those proceedings, Group 3 claimed that alternative, if the lis pendens rule were not Articles 21 and 22 of the Brussels Conven- considered applicable, the Admiralty Court tion were not applicable to the case in any should, in the shipowners' view, have stayed event, since the English court's jurisdiction the proceedings and, possibly, have declared, was based on the Arrest Convention, the by virtue of Article 22 of the Convention, application of which, in so far as it related to that it lacked jurisdiction in view of the con- 'particular matters', was assured by Article nection which certainly existed between the 57 of the Brussels Convention. action pending before the English courts and those pending before the Netherlands courts. Group 3 denied that there was a situation of Us pendens, considering that the two actions did not have the same parties or the same subject-matter; however, it conceded that the actions were related.

In those circumstances, the Court of Appeal, considering that the decision to be given in the proceedings depended on the interpreta- tion of Articles 21, 22 and 57 of the Brussels Convention, stayed the proceedings and referred to the Court of Justice for a prelim- inary ruling several questions relating essen- In Action 2007, on the other hand, recogniz- tially to the following points: ing that in fact the English court had been first seised, the shipowners asked it to stay the proceedings and, if appropriate, declare that it lacked jurisdiction under Article 22 of the Brussels Convention, concerning related actions — a view which was contested by (a) how, for the purposes of applying Arti- Group 2. cle 21, the requirement of identity of parties in proceedings brought in differ- ent contracting States and having the same subject-matter and the same cause of action should be construed;

in personam previously brought by the obtain compensation for the damage shipowner in relation to that damage; from the shipowner. 4 the national court asks, in particular, whether the answer to the question might differ according to whether the action in rem is proceeding, after acknowledgment of service by the ship- 4 — For a bener understanding of the observations that follow, I think it is appropriate to set out the text of the provisions at owners, both in rem and in personam or issue Ín the questions referred to the Court as in force at the

Article 22 'Where related actions are brought in the courts of different Contracting States, any court other than the court first seised (c) whether the derogation in favour of may, while the actions are pending at first instance, stay its proceedings. special conventions laid down in Article A court other than the court first seised may also, on the 57 means that, where the jurisdiction of application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions a court is based on the provisions of and the court first seised has jurisdiction over both actions. For the purposes of this article, actions are deemed to be such a convention, Articles 21 and related where they are so closely connected that it is expedi- ent to hear and determine them together t o avoid the risk of 22 concerning lis pendens and related irreconcilable judgments resulting from separate proceed- actions are inapplicable; ings.'

tion. Where a convention on a particular matter to which both the Sute of origin and the Sute addressed are parties lays down conditions for the recognition or enforcement of judgments, those conditions shall apply. In any event, the provisions of this convention which concern the procedure for recognition and enforcement of judgments may be applied. 3. . . .' Finally, it is appropriate to mention the relevant provisions (e) whether, in relation to the carriage of of the Arrest Convention. In particular Article 3 confers upon the courts of the Contracting States jurisdiction t o goods by sea, a case of lis pendens arises order the arrest of a ship in respect of which a maritime claim has arisen (or any other snip belonging to the same for the purposes of Article 21 where the owner) as security for that claim. The term 'maritime claim* shipowner brings proceedings in a Con- used in the Convention is described in Article 1(1) thereof as referring in particular, and so far as is relevant here, to claims tracting State for a declaration that he is arising out of 'loss of or damage to goods including baggage carried on any ship' (paragraph ( 0 ofthat provision).

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The relationship between the Brussels Con- tion, in principle it is inevitable that the pro- vention and conventions on particular mat- visions of the Arrest Convention should pre- ters vail.

6 — See, to that effect and for further bibliographical references, 5 — See in that connection the Jenard Report on the Brussels T. Vassalli di Dachenhausen, II coordinamento tra convenzi- Convention, in OJ 1979 C 59, p. 1 et seq., in particular at oni di diritto internazionale privato e processuale, Naples, page 50. 1993, in particular at p. 106 et seq.

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present case, there are no provisions in the courts of one or more contracting States. convention on a particular matter governing However, that provision is intended to pre- the situation where actions arising from the vent a plaintiff, who in principle is entirely at same facts are pending at the same time in liberty to choose his forum, from bringing two different States. The specific risk inher- the same action before a court other than the ent in such cases of an overlap between pro- one first seised. It is, therefore, a device ceedings concerning the same subject-matter which, although certainly designed to pre- and the possibility of conflicting decisions clude conflicting decisions, nevertheless would in fact ultimately undermine the fun- relates to situations which differ from lis damental aim pursued by the Brussels Con- pendens. Once the plaintiff chooses a court vention, namely that of 'strengthenfing] in by instituting proceedings for the arrest of a the Community the legal protection of per- vessel, the court before which the same sons therein established'. n For those rea- sons, therefore, I am of the opinion — which action is again brought later must do no coincides with that of many academic legal more than simply dismiss it on the ground writers 12 — that such cases call for the full that the same proceedings have already been application of Articles 21 and 22 of the Brus- commenced elsewhere. Accordingly, it must sels Convention, the precise aim of which is not make any findings concerning fulfilment to ensure that only one action is commenced of the conditions for recognition of the judg- in relation to the same subject-matter or to ment to be delivered by the court first seised; harmonize such decisions as may be arrived on the other hand, that is a matter which it at by the courts in different Contracting must examine for the purpose of upholding States. the objection lis alibi pendens.

jointly in relation to the matter of lis pendens Of particular importance is, firstly, the judg­ or the related nature of proceedings. ment in Gubisch Maschinenfabrik v Palom­ 1Ą bo, in which it was made clear that the terms used in Article 21 to describe the con­ ditions characterizing lis pendens must be interpreted independendy from those laid down in the various national procedural rules. In arriving at that conclusion, the Court laid particular emphasis on the aim in 13. In conclusion, I consider that where a pursuit of which Article 21 was introduced, convention on a particular matter contains namely 'in the interests of the proper admin­ no provisions on lis pendens and related istration of justice within the Community, to actions, Article 57 allows the application of prevent parallel proceedings before the Articles 21 and 22 of the Brussels Conven­ courts of different Contracting States and to tion. avoid conflicts between decisions which might result therefrom. Those rules are therefore designed to preclude, so far as is possible and from the outset, the possibility of a situation arising such as that referred to in Article 27(3), that is to say the non- recognition of a judgment on account of its Lis pendens within the meaning of Article irreconcilability with a judgment given in a 21 of the Brussels Convention dispute between the same parties in the State in which recognition is sought'. 1 5 In that judgment, attention is also drawn to the fact that Article 21 does not refer to the term lis pendens as used in the different national legal systems but instead lays down a number of substantive conditions as components of a definition. 14. Having regard to the conclusion arrived at regarding the relationship between the Brussels Convention and special conven­ tions, it is necessary to answer the further questions submitted by the Court of Appeal. In its first, second and fifth questions, it asks essentially for a definition of the concept of lis pendens as used in the Brussels Conven­ tion, in other words, it seeks clarification as to when two actions have the same subject- In the light of those considerations, the matter and parties. Helpful guidance is avail­ Court therefore concluded that lis pendens able from the previous decisions of the arose in a case such as the one before it, in Court on that point. which the annulment was sought of an inter­ national contract of sale in one Contracting

State, whilst the action commenced previ- 16. What consequences can therefore be ously in a court of another State sought drawn from that decision in relation to the enforcement of the same contract. That judg- problem now before us? ment shows, therefore, that it is necessary and sufficient, in order for Article 21 to be applicable, for the parties to be the same, regardless of the procedural position of each of them in the two actions, and for the basic legal reUtionship from which the situations relied on by the parties derive to be the same: It should first be observed that in the main the latter circumstance arises, in particular, proceedings bills of lading in identical terms where the issue raised in an action consti- govern the contractual relationships between tutes a logical precondition for the claim on the various cargo owners and the shipowners which the other action is based, or where the and that the conditions of carriage, including origin of different actions is to be found in the material circumstances thereof, the goods the same substantive situation. in question being soya bean oil in bulk, are the same in the various cases. It thus seems reasonable to conclude that the most impor- tant aspect of the legal situation to which the present preliminary question relates is the fact that the proceedings pending before the Arrondissementsrechtbank, Rotterdam, and the Admiralty Court, London, have the same 'cause of action', that is to say the same con- tractual relationship, and — at least partially, to the extent to be indicated shortly — the same 'subject-matter', in that in both cases the central issue is whether the shipowners are liable for the contamination of the soya 15. The importance of the function of Arti- bean oil through leakage of various hydro- cle 21 in the context of the Brussels Conven- carbons. In fact, both actions, the one in tion, and the consequent need to take which it is sought to establish the liability of account of that function in expounding the the shipowners and the one in which it is concept of lis pendens used in it, was also sought to establish non-liability, are nothing highlighted by the Court of Justice in Over- more than two sides of the same coin, as has seas Union Insurance.16 In that decision, it is been righdy pointed out by the Commission stated that, 'in order to achieve the aims in the course of the present proceedings. attributed to it, Article 21 must be inter- preted broadly so as to cover, in principle, all situations of lis pendens before courts in Contracting States': on that basis, the Court then answered the question put to it by say- ing that no account should be taken of the domicile of the parties to the two actions in 17. It is appropriate at this point to draw applying the provision in question. attention to a rather important difference between the facts of Gubisch Maschinenfab- rik and those of the present case: whilst in the former case too, the relationship between 16 — judgment in Case C-351/89 [1991] ECR 1-3317, in particu- lar paragraphs 12 to 17. the claims was attributable to their prelimi-

nary nature, the position in that case was the dispute in all cases where an action of more opposite of the one under review here, in limited scope was commenced first. that the proceedings brought before the court first seised were wider in scope than those brought subsequently. Since the pro- ceedings seeking enforcement of the interna- tional sale contract preceded those seeking the annulment or cancellation of the same contract, it was possible in the Court's view that the latter might 'even be regarded as 18. I therefore consider that, where the pro- simply a defence against the first action, ceedings commenced before the court subse- brought in the form of independent proceed- quently seised are wider in scope and where ings before a court in another Contracting it is not possible to broaden the subject- State'. " matter of the first action (a circumstance which does not appear to have arisen in the present case, since all the cargo owners lodged a claim for damages, albeit merely by way of precaution, before the Netherlands court) that court should decline jurisdiction under Article 21 as regards the part of the subject-matter regarded as included within the action brought before the court first seised and may, on the other hand, stay the In the present case, on the other hand, the proceedings as regards the remainder of the subject-matter of the action brought in the subject-matter, relying also on Article 22 of United Kingdom is not entirely covered by the Convention. 1 8 that of the previous action, in that it includes a claim for damages and determination of the amount thereof, which was not in issue (and in any case the position could not have been otherwise) in the proceedings initially com- menced in the Netherlands court. In view of the fact, therefore, that Article 21 of the Brussels Convention does not lay down a procedure whereby proceedings are auto- 19. However, for the purposes of resolving matically consolidated, but merely requires a the present problem, namely identification of court subsequently seised to decline jurisdic- the circumstances in which it can be said that tion, application of the provision on lis pen- two actions have the same cause of action dens might give rise, in such cases, to a denial under the Brussels Convention, no impor- of justice. If it were not possible, under the tance should in my view be attached to the rules applicable in the jurisdiction where the distinction drawn by English law between first action is pending, to extend its subject- actions in rem, by means of which the plain- matter by making further claims or raising tiff seeks to satisfy his claim by proceeding new grounds of defence, there would be no against specific assets, and actions in per- opportunity to deal with all aspects of the sonam intended to produce binding effects as between individuals. The application of Arti-

cle 21 cannot be made conditional upon the respects are similar to those in the present individual features of national procedural case. 20 Being called on to determine, specif- laws and differing forms of action: reference ically for the purpose of applying Articles to the domestic laws of Contracting States, 21 and 22 of the Brussels Convention, when rendered necessary by the incomplete- whether Netherlands proceedings brought ness of the rules contained in the Brussels by owners of goods for compensation for Convention, must be conducive to the appli- damage suffered by a ship's cargo involved cability of the provisions of the convention the same subject-matter and cause of action and may not in any circumstances lead to as proceedings subsequently commenced by results which conflict with its aims and ratio- the same owners in the United Kingdom by nale. ' 9 The purpose of Article 21 is — as arresting the vessel under the Arrest Con- already indicated — to avoid the duplication vention, the English court concluded that the of proceedings involving the same cause of two actions involved the same subject- action before courts in different Contracting matter, notwithstanding the differences States and the concomitant risk of judgments between actions in rem and actions in per- which are irreconcilable with each other and sonam. It arrived at that conclusion by refer- therefore, by virtue of Article 27(3), cannot ence to the fact that the subject-matter of the be recognized. It seems to me, in that con- action against the ship 21 must necessarily be nection, that the possibility of conflicting the same as that of the action against the judgments clearly exists in the present case, owner and that, if service of the writ of since the central issue in the proceedings arrest is not acknowledged by the owner, the pending in the United Kingdom and the plaintiff must, in order to obtain a decision Netherlands is the Lability of the shipowners against the vessel, prove the owner's liability. for contamination of the cargo. N o impor- tance must therefore be attached to the fact that the proceedings in question may possi- bly be of a different nature under the civil procedural law of one or other of the States concerned — what is important is whether or not the substantive issues which the Court is called upon to examine are the same.

clear that the parties remain the same even if, decline jurisdiction to the extent to which procedurally, their positions are reversed in the parties to the proceedings pending before the two cases, so that the plaintiff in the first it are also parties to the proceedings com- is the defendant in the second, provided of menced earlier. The same court must con- course that the legal situation relied on in the tinue the proceedings as between the other two cases is the same. However, although — parties, nevertheless reserving the right to in the circumstances which gave rise to the stay the proceedings as regards them if it is present preliminary questions — the possi- appropriate to do so by reason of the fact bility must certainly be ruled out that a situ- that the actions are related, in other words ation of lis pendens exists as between the pursuant not to Article 21 of the Brussels action commenced by Phibro in the United Convention but to Article 22. 22 Kingdom (action 2007) and the earlier Neth- erlands action, since Phibro was not a party to the latter, what is the position regarding the other action pending before the English court (action 2006) in which the plaintiffs, that is to say the Group 3 cargo owners, are only in part defendants in the proceedings 21. Finally, it is necessary to consider the commenced earlier in the Netherlands? last (the fifth) question submitted by the national court in relation to Article 21, which asks essentially whether the conclu- sions reached in interpreting the concept of lis pendens embodied in that provision may in some degree be modified where the plain- tiff in the action brought before the court first seised seeks a declaration of non- It seems to me, that in such circumstances, liability. The cargo owners in particular con- the risk of irreconcilable judgments, which tend, in that connection, that actions of that would materialize if the English court kind are in fact a cloak for forum shopping. ordered the shipowners to pay damages on In other words, the plaintiff has no claim the basis of their being held hable, whilst the whatsoever against the defendant and seeks Netherlands court concluded that the cargo only to preclude any possible action by the owners were not entided to proceed against latter against him, thereby predetermining the shipowners, is clearly envisageable as the competent court, in his own interests, regards to those who are parties to both sets and depriving a party with a genuine interest of proceedings. in bringing an action of the possibility of choosing the court of competent jurisdiction under the Brussels Convention or another special convention, the application of which is upheld by Article 57 of the Brussels Con- vention. Therefore, if Article 21 were inter- preted as meaning that an action seeking a In view of the need to ensure that all parties declaration of non-liability brought by the are able to enforce their rights in legal pro- person allegedly responsible for damage is to ceedings and of the aim of Article 21 of the Brussels Convention, that provision should therefore be interpreted as meaning that, in 22 — That view is expressed, although with some hesitancy, by such cases, the court second seised must Kaye, op. cit., p. 1227 et seq.

22. I do not agree with that argument or with the views put forward in support of it; in the light of the facts of the main proceed- ings, reference to it in this case seems to me to be entirely unjustified. It is true that the In fact, I do not think that this problem can inclusion in the Brussels Convention and, it be resolved by interpreting Article 21 restric- should not be forgotten, in the Arrest Con- tively, in other words so as to exclude its vention, of alternative rules for determining application — as contended in the course of jurisdiction and the consequent wide choice these proceedings — where a negative find- left open to the plaintiff in deciding which of ing is sought by means of the proceedings the equally competent courts to approach for commenced earlier in one of the Contracting the examination of a particular dispute, may States. leave the way open for 'clever' manoeuvres. In particular, the possibility cannot be ruled out that efforts may be made to establish the jurisdiction of a particular court solely in order to take advantage of the substantive legislation which is applied by it and is regarded as more favourable by the plaintiff, or, again, in order to raise difficulties for the It would also be specious, as the Commis- other party. sion observes, to seek to draw a distinction according to whether an action seeking a declaration of non-liability is the first or the second to be brought; such a distinction, besides having no possible basis in the word- ing of Article 21, would not avoid the prob- lem which that provision seeks to forestall, namely the possibility of conflicting judg- In that regard, it should be noted, however, ments delivered by two courts called upon at that such efforts — constituting forum shop- the same time to examine the same matter.

24. Even in the light of those considerations, the cargo owner's reference to the risks allegedly inherent in the practice of forum 25. In view of those considerations, I repeat shopping seems to me to be irrelevant, and that, in any event, Article 21 is not the place indeed rather unusual. Quite apart from any to look for a remedy for what might consti- other considerations, they may not be best tute a self-interested use of proceedings seek- placed to preach such a sermon. Whilst it is ing a negative declaration. That seems to me certainly possible that one of the reasons for to follow also from Gubisch Maschinenfab- the determination of the shipowners to have rik, mentioned several times earlier, from recourse to the Dutch courts was the inten- which it is apparent that the concept of lis tion to have applied to the case legislation pendens used in the Brussels Convention which they regarded as more favourable to extends to circumstances where a party has them, it is also a fact that their action in the brought before a court of a Contracting State Arrondissementsrechtbank, Rotterdam, was an action for the annulment or cancellation brought little more than one-and-a-half of a contract, whilst an action by the other months after discharge of the cargo, whilst party for the enforcement of that contract is the action by the Group 2 and 3 owners was pending before a court in another Contract- not commenced until ten months had ing State. O n that occasion, the Court disre- elapsed and on the basis of a connecting fac- garded the views of the Advocate General, tor which, I repeat, is wholly fortuitous. Fur- who had expressly drawn attention to the thermore, it has not been denied that the possible risks deriving from that interpreta-

26. With regard in particular, but not exclu- sively, to Action 2007, a final series of ques- Having regard to the subjective limits of tions relates to the interpretation of Article judgments, which, of course, can produce 22 of the Brussels Convention. The national effects only as regards the litigants, it is clear court asks the Court of Justice to clarify the that no incompatibility, in the technical concept of related actions in the third para- sense, can arise between the judgments deliv- graph of Article 22, by virtue of which, it ered in related actions except where, will be remembered, actions 'are deemed t o although having a different cause of action or be related where they are so closely con- subject-matter or both, they involve the nected that it is expedient to hear and deter- same parties. In a case in which the Court mine them together to avoid the risk of examined Article 27(3) of the Brussels Con- irreconcilable judgments resulting from sep- vention, and which has been referred to by arate proceedings'. many of the parties involved in these pro- ceedings, 26 a foreign judgment ordering a husband to pay maintenance to his wife by 23 — Opinion of Advocate General Mancini in Gttbisch Maschinenfabrik v Palumbo, cited above, at p. 4867 (see in particular p. 4869). 24 — See the judgment of the Oberlandesgericht, Munich, of 22 December 1993 in Recht der internationalen Wirtschaft, 25 — See the Jenard report, cited above, at pages 41 and 42, [1994] p. 511: in that judgment, the German court, specifi- where it is stated, in particular, that 'since the expression cally referring to Gubisch Maschinenfabrik v Palumbo, "related action" does not have the same meaning in all the considered that an action for a declaration of non-liability Member Sutes, the third paragraph of Article 22 provides a brought before an Italian court and a subsequent claim for definition. This is based on the new Belgian judicial code damages brought in Germany had the same subject-matter (Article 30)'. and cause of action within the meaning of Article 21 of the 26 — Judgment in Case 145/86 Hoffmann v Krieg [1988] ECR Brussels Convention. 645, in particular paragraphs 19 to 25.

virtue of his matrimonial obligations would Opinion of Advocate General Darmon in be incompatible with a decision given in the Kalfelis, 29 seems to me to provide a clear State where enforcement of it was applied illustration of the view just expressed: it is for, which dissolved the marriage of the same also a particularly appropriate illustration, spouses. On that occasion, therefore, the because of its considerable factual similarity Court observed that judgments of that kind with the present case. If, after separate 'have legal consequences which are mutually actions have been commenced against two exclusive. The foreign judgment, which nec- persons allegedly responsible for an accident, essarily presupposes the existence of the two decisions are given, one of which matrimonial relationship, would have to be upholds the action and the other dismisses it, enforced although that relationship has been on the ground that the damage suffered does dissolved by a judgment given in a dispute not justify compensation, those decisions, between the same parties in the State in although contradictory, may certainly be which enforcement is sought' (emphasis add- enforced at the same time, having been given ed). 27 in proceedings between different parties. Nevertheless, recognition of the fact that the two sets of proceedings were related and a possible stay of proceedings or, if the requi- site conditions were fulfilled, a declaration by the court second seised that it lacked jurisdiction, under the first and second para- graphs of Article 22, would in any event 28. In view of the aim inherent in the con- have been conducive to the substantive uni- cept of related actions in the Brussels Con- formity of judicial decisions and would vention, I do not believe, however, that the therefore have been in conformity with the expression 'irreconcilable judgments' con- objectives pursued by the Brussels Conven- tained in the third paragraph of Article tion. 22 can be given the same restrictive meaning as the expression 'judgment ... irreconcilable with a judgment given in a dispute' at an ear- lier stage used in Article 27(3), as suggested by most of the parties to the present pro- ceedings. The latter provision envisages the possibility, by way of derogation from the principles and objectives laid down in the Convention, of refusing, exceptionally, to recognize a foreign judgment, whilst the The rationale of the provision is therefore to former is intended rather to improve coordi- encourage harmonious judicial decisions and nation of the judicial function within the thereby obviate the danger of judgments Community and to avoid conflicting and which conflict with each other, albeit only as contradictory decisions, even where the sep- regards their reasoning. The court second arate enforcement of each of them is not pre- seised should therefore be able to have cluded. 28 An example, which I take from the recourse to the machinery envisaged by that

1. Article 57 of the Convention must be interpreted as meaning that, if — as in the present case — a convention o n a particular matter contains no provisions concerning Us pendens and related actions, Articles 21 and 22 of the Conven- tion are applicable.

2. Article 21 of the Convention must be interpreted as meaning that lis pendens arises whenever there is total or partial identity of subject-matter, cause of action and parties as between two (or more) actions. In particular:

— an action brought in one Contracting State, in order to obtain a declaration that the plaintiff is not liable for damage allegedly suffered by the defen- dants, has the same subject-matter and cause of action as an action subse- quently commenced in another Contracting State by one of the defendants in the first action with a view to establishing that the plaintiff in the latter action is liable for the same damage;

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— in that regard, the fact that the forms of the actions differ under the pro- cedural laws of the two States concerned is unimportant;