Opinion of Advocate General Tesauro delivered on 13 July 1994

1 Original language: Italian.

2 The order for reference is rather laconic in that respect, since for the most part it confines itself to setting out the preliminary questions referred to the Court. However, I consider that the matters of fact and law set out in the pleadings and documents lodged by the parties are more than sufficient. Moreover, having regard to the cooperation between the Community Court and national courts, the essence of which must, in my opinion, be preserved, I shall not in this case consider in detail the question whether the order for reference is formally apt for proper examination by the Court of Justice.

3 The text of the Convention is in International Transport Treaties, suppl. 12, May 1988, p. I-168.

4 For the sake of completeness, I should point out, finally, that other actions were subsequently commenced both by the cargo owners and the shipowners, but they are of limited relevance to the answers to the questions of interpretation referred to the Court. They are, in partieulan (a) actions for damages in respect of the alleged contamination of the soya bean oil discharged in Rotterdam, commenced in the Netherlands on a precautionary basis by Groups 2 and 3 on 29 September and 3 October 1989 respectively in case the English court should declare that it lacked jurisdiction; and (b) the action brought by the shipowners, again in the Netherlands, on 26 October 1990 to Emit their liability regarding the entire cargo discharged in Rotterdam and Hamburg, that action being based on the International Convention relating to the limitation of the liability of owners of seagoing ships, signed in Brussels on 10 October 1957.

5 For a bener understanding of the observations that follow, I think it is appropriate to set out the text of the provisions at issue Ín the questions referred to the Court as in force at the material time: Article 21 Where proceedings involving the same cause of action and between the same parties are Drought in the courts of different Contracting States, any court other than the court first seised shall of its own motion stay its proceedings until 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. Article 22Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings. A court other than the court first seised may also, on the application of one 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 purposes 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. Article 57l. 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 assummg 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; (b) judgments given in a Contracting Sute by a court in the exercise of jurisdiction provided Tor in a convention on a particular matter shall be recognized and enforced in the other Contracting Sute in accordance with this Convention. 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 of the Arrest Convention. In particular Article 3 confers upon the courts of the Contracting States jurisdiction to order the arrest of a ship in respect of which a maritime claim has arisen (or any other snip belonging to the same owner) as security for that claim. The term maritime claim used in the Convention is described in Article 1(1) thereof as referring in particular, and so far as is relevant here, to claims arising out of loss of or damage to goods including baggage carried on any ship (paragraph (0 ofthat provision). Finally, Article 7(1) confers upon the courts of the Contracting Sute in which the arrest is made jurisdiction also to determine the case upon its merits in certain circumstances: in that regard I shall only mention, since it is relevant to the facts at issue here, the case where the domestic law of the country in which the arrest was made gives jurisdiction to such courts for that purpose.

6 See in that connection the Jenard Report on the Brussels Convention, in OJ 1979 C 59, p. 1 et seq., in particular at page 50.

7 See, to that effect and for further bibliographical references, T. Vassalli di Dachenhausen, II coordinamento tra convenzioni di diritto internazionale privato e processuale, Naples, 1993, in particular at p. 106 et seq.

8 The Schlosser Report appears in OJ 1979 C 59, p. 71 et seq.

9 Schlosser report, paragraph 240.

10 Ibid, paragraph 240.

11 Ibid, paragraph 240, in which the problem of lis pendens is expressly raised and then left to be resolved by subsequent case-law.

12 Preamble to the Brussels Convention.

13 See, to that effect and for further bibliographical references, T. Vassalli di Dachenhausen, op. cit, P. Kaye, Civil Jurisdiction and Enforcement of Foreign Judgments, Abingdon, 1987 (p. 197 et seq.), O'Malley and Leyton, European Civil Practice, London 1989, (p. 858 et seq.) and A. Di Blase, Connessione e litispendenza nella convenzione di Bruxelles, Padua, 1993 (p. 142 et seq.).

14 See in particular the judgment of the Queen's Bench Division (Admiralty Court) of 17 July 1987 in The Nordglimt, in The Law Repons, 1988 p. 183 et seq., and of 23 October 1987 in The Linda, Lloyds Law Repons, 1988, p. 174 et seq.

15 Case 144/86 [1987] ECR 4861.

16 Ibid-, paragraph 8.

17 judgment in Case C-351/89 [1991] ECR I-3317, in particular paragraphs 12 to 17.

18 Gubisch Maschinenfabrik v Palumbo, cited above, paragraph 16.

19 On chat point, see Di Blase, op. cit., p. 75 et seq.

20 See in that connection the judgments in Gubisch Maschinenfabrik v Palumbo, cited above, paragraphs 6 to 8, and the earlier judgment in Case 12/76 Tessili [1976] ECR 1473.

21 Judgment of the Admiralty Court of 31 March, 1, 2 and 6 April 1992, in Lloyds Law Reports, 1992, p. 261 et seq.

22 It should be observed that, under English Maritime Law, in an actio in rem, in which a vessel is arrested, the defendant is not the owner or the shipping company but the vessel itself or the cargo and accordingly the writ of summons is served upon ... the vessel!

23 That view is expressed, although with some hesitancy, by Kaye, op. cit., p. 1227 et seq.

24 Opinion of Advocate General Mancini in Gttbisch Maschinenfabrik v Palumbo, cited above, at p. 4867 (see in particular p. 4869).

25 See the judgment of the Oberlandesgericht, Munich, of 22 December 1993 in Recht der internationalen Wirtschaft, [1994] p. 511: in that judgment, the German court, specifically referring to Gubisch Maschinenfabrik v Palumbo, considered that an action for a declaration of non-liability brought before an Italian court and a subsequent claim for damages brought in Germany had the same subject-matter and cause of action within the meaning of Article 21 of the Brussels Convention.

26 See the Jenard report, cited above, at pages 41 and 42, where it is stated, in particular, that since the expression related action does not have the same meaning in all the Member Sutes, the third paragraph of Article 22 provides a definition. This is based on the new Belgian judicial code (Article 30).

27 Judgment in Case 145/86 Hoffmann v Krieg [1988] ECR 645, in particular paragraphs 19 to 25.

28 Ibid., paragraph 24.

29 See in that connection the opinion of Advocate General Darmon in Case 189/76 Kaltelis; particularly at page 5574 et seq. of the Opinion.

30 Cited in the previous footnote — page 5575. For a similar approach, see P. Kaye, Civil Jurisdiction and Enforcement of Foreign Judgments, cited above, page 1233 et seq., and A. Di Blase, Connessione e litispendenza nella convenzione di Bruxelles, cited above, page 179 et seq.