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Document 62002CC0039

Opinion of Mr Advocate General Léger delivered on 13 July 2004.
Mærsk Olie & Gas A/S v Firma M. de Haan en W. de Boer.
Reference for a preliminary ruling: Højesteret - Denmark.
Brussels Convention - Proceedings to establish a fund to limit liability in respect of the use of a ship - Action for damages - Article 21 - Lis pendens - Identical parties - Court first seised - Identical subject-matter and cause of action - None - Article 25 - 'Judgment' - Article 27(2) - Refusal to recognise.
Case C-39/02.

European Court Reports 2004 I-09657

ECLI identifier: ECLI:EU:C:2004:430

Conclusions

OPINION OF ADVOCATE GENERAL
LÉGER
delivered on 13 July 2004(1)



Case C-39/02



Mærsk Olie & Gas A/S
v
Firma M. de Haan en W. de Boer


(Reference for a preliminary ruling from the Højesteret (Denmark))

(Brussels Convention – Proceedings to establish a liability limitation fund for the use of a seagoing vessel – Action for damages – Article 21 – Lis pendens – Identical parties – Court first seised – Identical object cause of action – None – Article 25 – Definition of ‘judgment’ – Article 27(2) – Refusal to recognise)






1.        Pursuant to the International Convention relating to the Limitation of the Liability of Owners of Sea-going Ships, signed in Brussels on 10 October 1957, (2) a shipowner may arrange for his liability for certain marine damage to be limited to an amount specified by that Convention. The situation in the present case is that certain shipowners have initiated a procedure for the limitation of their liability before the court of the place where their vessel is registered in the Netherlands, while the victim of the damage attributed to the vessel has brought an action for damages before a Danish court.

2.        In these circumstances the Højeseteret (Supreme Court) (Denmark) has requested the Court for a preliminary ruling on several questions concerning the interpretation of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. (3) Accordingly the national court asks whether Article 21 of the Brussels Convention concerning lis pendens is applicable in the present case. The national court also asks whether the order made, upon application, by the Netherlands court authorising the constitution of a liability limitation fund is a judgment within the meaning of Article 25 of the Brussels Convention and to what extent it can be recognised in Denmark.

I –  The legal context

A – The 1957 Convention

3.        The limitation of liability in maritime law has long been accepted in many national legal systems as meeting an essential need, in so far as the risks inherent in shipping may be so great that they cannot be fully insured against. (4) Divergent national laws applying in this area and the international nature of maritime transport have led States to lay down uniform rules by means of a first international convention adopted in 1924 and subsequently the 1957 Convention.  (5)

4.        The 1957 Convention provides that a shipowner may limit his liability in respect of claims arising from any of the causes listed in the Convention unless the occurrence giving rise to the claim resulted from the actual fault of the owner. The said claims include damage to property caused by the act, neglect or default of any person on board the ship and occurring in the navigation of the ship. Under Article 1(7) of the 1957 Convention, the act of invoking limitation of liability does not constitute an admission of liability. The amount to which the shipowner may limit his liability is proportionate to the ship’s tonnage. The Convention specifies a certain amount, depending on the nature of the damage caused, for each tonne of the tonnage. Where the occurrence in question gives rise only to property claims, the owner’s liability may be limited to 1 000 francs for each tonne of the ship’s tonnage.  (6)

5.        Where the aggregate of all claims arising from the same harmful event exceeds the liability limit as defined, a fund of an amount corresponding to that limit may be constituted and it must be appropriated only to the payment of claims in respect of which limitation of liability can be invoked. The fund must be distributed among the claimants in proportion to the amount of their respective established claims. The rules relating to the constitution and distribution of the limitation fund and all rules of procedure are governed by the national law of the State in which the fund is constituted.  (7)

6.        The 1957 Convention was replaced by the Convention on the Limitation of Liability for Maritime Claims signed in London on 19 November 1976.  (8)

B – Netherlands law

7.        According to the provisions in force at the material time, Netherlands law provided for a liability limitation procedure in three stages. In the first stage, the shipowner or charterer files an application to the court at the place where the vessel is registered, stating the amount to which he requires his liability to be limited and the names and addresses of potential claimants. If the court grants the application, the court makes a provisional order stating the amount to which the applicant’s liability is to be limited and ordering him to pay that amount, with court costs, or to provide security for those amounts. The court also appoints a judge to oversee the matter and an administrator. The order, accompanied by the application, must be served by registered letter to the applicant and the claimants named in the application. The order must also be published in the Official Journal and other periodicals. The order is open to appeal by the applicant and the claimants who may, at this stage, seek to have the application dismissed or declared inadmissible. (9) An appeal on a point of law may be lodged against a decision given on appeal.

8.        At the second stage, the claimants are requested to register their claims. They may also challenge the shipowner’s right to obtain a limitation of liability and the amount at which the judge has provisionally fixed the limited liability. Likewise the shipowner may contest the claims. These objections are referred to the court for a decision either directly or after an unsuccessful attempt at conciliation by the judge overseeing the matter. (10) This stage concludes with the preparation by the administrator of a list for the distribution of the fund among the claimants whose claims have been registered. The claimants may challenge this list before the court. If no claims are proven, the shipowner is granted a decision permitting him to contest any action in the future relating to the occurrence in question. This decision is open to appeal.

9.        At the third stage, the claimants are requested by registered letter to accept the amount allocated to each. They must claim their share within one year. After a liability limitation fund has been distributed, the shipowner or charterer will have no further liability by reason of the harmful event.

C – The Brussels Convention

10.      According to the preamble to the Brussels Convention, its purpose is to facilitate the recognition and enforcement of judgments of courts or tribunals in accordance with Article 293 EC and to strengthen in the Community the legal protection of persons therein established. The preamble states that it is necessary for this purpose to determine the international jurisdiction of the courts of the Contracting States.

11.      Article 2 of the Brussels Convention lays down the general rule that persons domiciled in a Contracting State are to be sued in the courts of that State. Article 5 provides that, ‘in matters relating to tort, delict and quasi-delict’ the defendant may be sued ‘in the courts for the place where the harmful event occurred’.

12.      Article 6a of the Brussels Convention adds as follows:

‘Where by virtue of this Convention a court of a Contracting State has jurisdiction in actions relating to liability from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that State, shall also have jurisdiction over claims for limitation of such liability.’

13.      The Brussels Convention also seeks to avoid irreconcilable judgments. For this purpose, Article 21, relating to lis pendens, reads as follows:

‘Where proceedings involving the same cause of action and between the same parties are brought 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. A court which would be required to decline jurisdiction may stay its proceedings if the jurisdiction of the other court is contested.’

14.      Article 22 of the Brussels Convention in turn provides that, where 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 decline jurisdiction, subject to certain conditions. 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.

15.      Finally, Title III of the Brussels Convention provides for simplified rules for the recognition and enforcement of judgments. Article 25 defines ‘judgment’ as follows:

‘For the purposes of this Convention, “judgment” means any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.’

16.      Article 26 of the Brussels Convention provides as follows:

‘A judgment given in a Contracting State shall be recognised in the other Contracting States without any special procedure being required …’

17.      Article 27 of the Brussels Convention sets out the conditions under which judgments will not be recognised. It reads as follows:

‘A judgment shall not be recognised:

2         where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence;

…’

II –  The facts and procedure in the main proceedings

18.      In May 1985 Mærsk Olie & Gas A/S (‘Mærsk’) laid oil and gas pipelines in the North Sea. In June 1985 a trawler belonging to a partnership, M. de Haan and W. de Boer, represented by the partners Martinus de Haan and Willem de Boer (‘the shipowners’) was fishing in the vicinity of the pipelines. Mærsk established that the pipelines had been damaged. It wrote a letter of 3 July 1985 informing the shipowners that it held them liable for the damage and that the cost of repairs was estimated at USD 1 700 019 and GBP 51 961.58.

19.      On 23 April 1987 the shipowners lodged an application for the limitation of their liability at the Arrondissementsrechtbank (District Court) Groningen (Netherlands), the court of first instance for the place where their vessel was registered. On 27 May 1987 that court made an order provisionally limiting their liability to NLG 52 417.40 and ordering the shipowners to deposit that amount together with NLG 10 000 to cover the legal costs. The shipowners’ lawyers informed Mærsk of this decision by telex dated 5 June 1987.

20.      On 20 June 1987 Mærsk brought an action for damages against the shipowners before the Vestre Landsret (Western Regional Court) (Denmark) in respect of the damage caused to the pipelines.

21.      By a document of 24 June 1987 Mærsk appealed against the Netherlands court’s order of 27 May 1987 granting the shipowners’ application for the limitation of their liability, on the ground that the Netherlands court had no jurisdiction. On 6 January 1988 the Netherlands appeal court upheld that order.

22.      By registered letter of 1 February 1988, the administrator appointed by the Arrondissementsrechtbank Groningen gave Mærsk’s lawyer details of the order. By letter of 25 April 1988 the administrator requested Mærsk to submit its claim. Mærsk failed to do so and, as no other claims were submitted, the sum deposited by the shipowners was returned to them in December 1988.

23.      By decision of 27 April 1998, the Vestre Landsret ruled that, pursuant to the second paragraph of Article 21 of the Brussels Convention, it had to decline jurisdiction in favour of the Netherlands court. It found, first, that the Netherlands decisions of 27 May 1987 and 6 January 1988 had to be deemed to be judgments within the meaning of Article 25 of that Convention because Mærsk had had an opportunity to defend its position in the course of the proceedings. The Vestre Landsret found, secondly, that the parties to the Netherlands proceedings were the same as the parties to the Danish action and that the cause of action was the same. On this point the Vestre Landsret observed that the two cases were based on the same facts and that Mærsk could have made the same submissions in the Netherlands proceedings as it did before the Danish court. Finally, the Vestre Landsret noted that a decision on when proceedings were brought in a court for the purpose of Article 21 of the Brussels Convention had to be taken on the basis of the specific procedural law applicable before each of the national courts involved. According to those rules, the Netherlands proceedings had been brought on 23 April 1987, when the shipowners’ application was lodged, whereas the Danish proceedings were not commenced until 20 June 1987.

24.      Mærsk appealed against this judgment to the court which has requested a preliminary ruling. Mærsk submits, first, that the action before the Vestre Landsret must be regarded as having been brought first for the purpose of Article 21 of the Brussels Convention. It contends that an application for liability limitation is not an action for the purpose of that provision and, alternatively, that it did not have the status of a party to those proceedings until 24 June 1987, when it lodged an appeal against the order of 27 May 1987. Therefore the parties cannot have been the same for the purpose of Article 21 when it, Mærsk, brought its action for damages before the Vestre Landsret on 20 June 1987. Finally, Mærsk submits that the conditions of Article 27(2) of the Brussels Convention for the recognition in Denmark of the Netherlands order of 27 May 1987 were not fulfilled because that order was made in breach of the fundamental principle that both parties must have an opportunity to state their case.

25.      Conversely, the shipowners argued that the Vestre Landsret had to decline jurisdiction to take cognisance of Mærsk’s application pursuant to Article 21 of the Brussels Convention. They contended that both Netherlands law and Article 6a of the Brussels Convention conferred on the Arrondissementsrechtbank Groningen jurisdiction to rule on substantive issues of liability, that Mærsk was a claimant in the proceedings pending before that court and that it had appealed against the order made by that court. Alternatively, the shipowners argued that the decision closing the proceedings before the Arrondissementsrechtbank Groningen was a judgment within the meaning of Article 25 of the Brussels Convention which had to be recognised in Denmark. As that judgment had become final, the Danish action had to be declared inadmissible.

26.      Finally, the shipowners maintained that Mærsk had no grounds for pleading that it had not been duly summoned because it entered appearance in the Netherlands appeal proceedings without raising any objection on that point. The shipowners submit that the question of due service must be determined by reference to the Netherlands rules in force at the time and that those rules were complied with as Mærsk was effectively and continuously kept informed of the proceedings under way in the Netherlands.

III –  The questions referred to the Court

27.      The Højesteret decided to stay the proceedings and to refer the following questions to the Court:

‘(1)
Does a procedure to establish a liability limitation fund pursuant to an application by a shipowner under the Brussels Convention of 10 October 1957 constitute proceedings within the meaning of Article 21 of the 1968 Brussels Convention where it is evident from the application, where the relevant names are stated, who might be affected thereby as a potential injured party?

(2)
Is an order to establish a liability limitation fund under the Netherlands procedural rules in force in 1986 a judgment within the meaning of Article 25 of the 1968 Brussels Convention?

(3)
Can a limitation fund which was established on 27 May 1987 by a Netherlands court pursuant to Netherlands procedural rules then in force without prior service on an affected claimant now be denied recognition in another Member State in relation to the claimant concerned pursuant to Article 27(2) of the 1968 Brussels Convention?

(4)
If Question 3 is answered in the affirmative, is the claimant concerned deprived of its right to rely on Article 27(2) by virtue of the fact that in the Member State which established the limitation fund it raised the matter of jurisdiction before a higher court without having previously objected to default of service?’

IV –  Assessment

A – The first question

28.      The first question from the national court is whether a procedure to establish a liability limitation fund pursuant to an application by a shipowner falls within the scope of Article 21 of the Brussels Convention where the application shows the name of the person who might be affected thereby as a potential injured party.

29.      This question seeks to ascertain whether the Vestre Landsret was justified in declining jurisdiction in favour of the Netherlands court pursuant to Article 21 of the Brussels Convention. The Højesteret thus wishes to establish whether the conditions of that article were met between the liability limitation procedure initiated by the shipowners before the Netherlands court and the action for damages brought by Mærsk before the Danish court. Therefore the first question must be construed as meaning that the national court is asking, in substance, whether a procedure seeking the creation of a liability limitation fund, such as that initiated in this case by shipowners under Netherlands law by means of an application referring by name to the potential injured party, and an action for damages brought by the said victim against the same shipowners are proceedings involving the same cause of action and between the same parties for the purposes of Article 21 of the Brussels Convention.

30.      First of all, I think there can be no doubt that a procedure for the creation of a liability limitation fund, such as that provided for by the Netherlands law in force at the material time, falls within the scope of Article 21. Neither that article nor any other provision of the Brussels Convention defines the type of case or dispute falling within its ambit. According to the French version, it applies to ‘demandes’ brought before courts. The use of the word ‘demande’, which has a very general meaning in French, suggests that the authors of the Convention did not intend to limit the application of the provisions concerning lis pendens to particular actions, but that, on the contrary, they intended to cover broadly all types of proceedings which can be submitted to a national court, regardless of their form or description in internal law. This conclusion is confirmed by the other language versions, where the meaning of the term is equally general. (11) In addition, as we know, the purpose of the Brussels Convention is to ensure the free movement of judgments between the Contracting States and, as the Court has consistently held,  (12) Article 21, like the other provisions of the Convention on lis pendens and related actions, aims to prevent so far as possible irreconcilable judgments from being given in different States concerning the same dispute. It aims to preclude from the outset the possibility of a situation arising where a judgment given in one Contracting State cannot be recognised in another Contracting State because it is irreconcilable with a judgment given in the latter State in a dispute between the same parties. With that objective in mind, the Court observed that Article 21 must be interpreted broadly so as to cover all situations of lis pendens (13) and that, for that purpose, the parties, the cause of action and the subject-matter must all be the same, and no further conditions are necessary.  (14)

31.      We may therefore conclude from the wording and the underlying purpose of Article 21 that, to give full effect to the Brussels Convention and avoid so far as possible irreconcilable judgments in different States, it is sufficient if an application is actually brought before a court seeking to obtain a judgment which may have legal effects or consequences for a third party named in the application for Article 21 to be applicable. In my view, a procedure seeking the creation of a liability limitation fund such as that provided for by Netherlands law fulfils these conditions. The purpose of such a procedure is to enable the owner or charterer of a ship to have their liability to one or more claimants in respect of damage caused by the ship limited by a legal decision to an amount calculated in accordance with the 1957 Convention, so that those claimants cannot, on the basis of the same harmful event, claim any more than the amounts allotted to them within the framework of that procedure. Therefore such a procedure aims to obtain a legal decision capable of having legal consequences for the claimant or claimants in question. A procedure aiming at the creation of a liability limitation fund such as that in the present case may therefore, as such, fall within the scope of Article 21 of the Brussels Convention. (15)

32.      Accordingly the question before the Court is whether a procedure such as that initiated by the shipowners in the present case by means of an application referring by name to the potential victim of damage and an action for damages brought by the victim against those shipowners involve the same parties, the same cause of action and the same subject-matter.

33.      It is clear from the wording of Article 21 of the Brussels Convention that all three conditions must be met. Therefore if one of them is not fulfilled there will not be a situation of lis pendens as between the two cases in question. As I shall show below, (16) I consider that the two cases here do not involve the same cause of action and the same subject-matter. However, in view of the wording of the question from the national court and the reasoning of the decision of the Vestre Landsret declining jurisdiction, I think it may assist the Højesteret if the concept of ‘the same parties’ is also considered, as all the interveners have done.

1. The concept of the ‘same parties’

34.      The question before the Court in the present case is whether Mærsk must be deemed to be a party to the liability limitation procedure merely because it was referred to in the application in question, although it was not notified of the application until after the order of 27 May 1987 had been made by the Netherlands court. As we have seen, under the Netherlands law in force, the first stage of the procedure does not entail submissions by both parties, these being made only at the second stage, after the order ruling on the application for the limitation of liability is made and is served, together with the application, on the claimants named in the application. Therefore the question is whether the fact that Mærsk was mentioned in the application for the limitation of liability gives it the status of a party to the liability limitation procedure from the first, non-adversarial, stage of the procedure, as the shipowners, the Netherlands Government and the United Kingdom Government maintain, or whether, as Mærsk and the Commission of the European Communities contend, it acquired that status only when it was notified of the order and the application or, possibly, when it appealed against the order. In other words, it is necessary to establish whether an application such as that submitted by the shipowners to the Netherlands court initiates proceedings for the purposes of Article 21 of the Brussels Convention against one or more of the claimants named therein. The answer to that question will determine, in the present case, which of the two courts, the Netherlands or the Danish, was the court first seised. It must be observed that, pursuant to Article 21 of the Brussels Convention, a plea of lis pendens can be raised only before the court second seised. (17)

35.      Contrary to the findings of the Vestre Landsret and the position adopted by the United Kingdom, I do not think the question whether Mærsk can be regarded as a party to the liability limitation procedure merely because it was named in the application in question must be decided by reference to national law, following the approach taken by the Court in the Zelger judgment. (18) In the Gubisch Maschinenfabrik (19) and TheTatry (20) judgments, the Court observed that, having regard to the objectives of the Brussels Convention, the term ‘the same parties’, like the terms ‘same cause of action’ and ‘same subject-matter’, had to be regarded as independent. I am inclined to the view that this rule applies not only to the question of whether the parties are the same, but also to the question of the moment from which the persons concerned acquired the status of a party in each of the cases in question. These two aspects seem to me closely connected in so far as the issue of whether the parties in the two procedures are the same depends on whether the persons concerned must be deemed to be parties in those procedures. Consequently, in my view, it is for the Court to set out the criteria by reference to which the national courts concerned must appraise the latter question.

36.      Regarding the determination of those criteria, I do not think it should lead to a definition of ‘party to proceedings’ which may appear to conflict with the safeguards laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 47 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), by virtue of which every person has the right to a fair hearing. The Court has consistently held that the right of every person to a fair hearing, which is based on those fundamental rights, is a general principle of Community law which is upheld by the Court. (21) The Court has held that the objective of the free movement of judgments pursued by the Brussels Convention must not be attained to the detriment of the fundamental rights which form an integral part of Community law, such as the right to conduct one’s defence. (22) This case-law, which has evolved in relation to the interpretation of Article 27 of the Convention, concerning the conditions under which a State may oppose the recognition in its territory of a judgment given in another Contracting State, is worth applying in the context of Article 21. The question of which is the court first seised has some bearing on the situation of each of the parties, taking into account the obligation on the court second seised to decline jurisdiction. On this point it must be observed that the principle laid down in Article 2 of the Brussels Convention that persons domiciled in a Contracting State are to be sued in the courts of that State is based on the consideration that it is more difficult, generally speaking, to defend oneself in the courts of a foreign country than in those of another town in the country where one is domiciled. (23) This is the consideration underlying most of the direct jurisdiction rules of the Brussels Convention. It could therefore be concluded that the status of a party for the purpose of Article 21 is subject to the condition that the person concerned has the right to defend himself, that is to say, he must be summoned to inter partes proceedings. In the objectives and the general scheme of Article 21 I see no compelling reason for waiving this requirement. The need to be able to determine precisely the moment at which each of the courts concerned was seised of the dispute for the purpose of applying the objective rules of automatic referral laid down by Article 21 (24) does not seem to me to be compromised by the principle that a court cannot be considered to be seised of proceedings against a party for the purpose of Article 21 unless those proceedings initiate an inter partes procedure.  (25)

37.      I therefore conclude that, in a procedure such as the liability limitation procedure provided for by the Netherlands legislation in force in 1986, a first, unilateral, stage must be followed by an inter partes stage and only after the completion of the formalities for summoning to the proceedings the person or persons named by the applicant in his initial application can such person or persons be deemed to be a party or parties to the proceedings.

38.      This conclusion also has the advantage of being consistent with the definition of the term ‘document which instituted the proceedings’ given by the Court in relation to Article 27(2) of the Brussels Convention, (26) concerning payment order procedures in German law and Italian law. As in the Netherlands liability limitation procedure, those procedures consist in an ex parte stage followed by an inter partes stage. In both procedures, a creditor can obtain a payment order against a debtor which is made on an application which is not served on the other party. The payment order and the application are then both served on the debtor, who has a certain period in which to lodge an objection. In the judgments in the Klomps (27) and the Hengst Import (28) cases, the Court found that the term ‘document which instituted the proceedings’ within the meaning of Article 27(2) of the Brussels Convention means the document or documents which must be served on the defendant in order to enable him to assert his rights before an enforceable judgment is given. The Court concluded that the payment order (Zahlungsbefehl) in German law and the payment order (decreto ingiuntivo) accompanied by the application in Italian law constituted the document instituting the proceedings within the meaning of Article 27(2). It may therefore be concluded that an application such as that submitted by the shipowners to the Netherlands court does not institute proceedings against the claimant or claimants named therein, for the purpose of Article 21 of the Brussels Convention, and that proceedings will not be instituted until the claimant is notified of the order made on completion of the ex parte stage.

39.      This assessment would entail the following consequences in the present case. Mærsk could not be regarded as a party to the liability limitation procedure following the lodging of the application with the Netherlands court on 23 April 1987. On the other hand, Mærsk was notified by registered letter of 1 February 1988 (29) of the order made by the Netherlands court on 27 May 1987. In addition, Mærsk lodged an appeal against the order on 24 June 1987. Mærsk could therefore be regarded as being a party to the procedure on that date or, at the latest, on 1 February 1988. In so far as Mærsk brought its action for damages before the Danish court on 20 June 1987 it is possible that, under the Danish procedural rules concerning the date on which a court is actually seised, the Vestre Landsret must be deemed to be the court first seised.

2. The same cause of action

40.      As I have already stated, I take the view that the two sets of proceedings in question do not have the same cause of action and the same object within the meaning of Article 21 of the Brussels Convention. It has consistently been held that, in spite of certain divergences in the different language versions of Article 21, (30) the cause of action and the object are two different concepts. (31) As I have said, these are independent concepts which have been defined by the Court. The ‘cause of action’ comprises the facts and the rule of law relied on as the basis of the action. (32) So far as the object is concerned, it consists in the end the action has in view. (33) However, the Court added that the concept of ‘object’ could not be restricted so as to mean two claims which are formally identical. Accordingly, the Court observed that an action to enforce a contract of sale and an action for its rescission or discharge had the same subject-matter because the binding force of the contract was at the heart of the two actions, one action seeking to give effect to the contract and the other aimed at depriving it of any effect. (34) The Court has extended this case-law to apply in the matter of liability in finding that an action seeking a declaration that the plaintiff is not liable for damage alleged by the defendants and an action commenced by those defendants seeking to have the plaintiff in the first action held liable for causing loss and ordered to pay damages also have the same subject-matter.  (35)

41.      Like Mærsk, the Commission and the Højesteret, (36) my view is that the two procedures in the present case do not constitute one and the same action for the purpose of Article 21 of the Brussels Convention. So far as their cause of action is concerned, the facts giving rise to the two procedures are, in principle, the same, (37) but the legal rule forming the basis of each of the two disputed claims is based differs because an action for damages is based on the law of non-contractual liability, as in the present case, or contractual liability, whereas a liability limitation procedure is based on the 1957 International Convention and the national legislation incorporating it into the national legal system.

42.      Likewise, regarding subject-matter or object, an action for damages has the purpose of obtaining a finding that the defendant is liable for the alleged damage and an order for the defendant to make reparation for it. Consequently, the main object of the action is the recognition of the defendant’s liability. It is a matter of recognising in law that such liability exists. The purpose of a liability limitation procedure, on the other hand, is to limit the liability of a shipowner or charterer who might be sued on the grounds of a maritime activity to an amount fixed pursuant to the 1957 Convention. Therefore the main object of such a procedure is the limitation of liability. The applicant’s essential aim is to have the benefit of the maximum amounts provided for by the said Convention. Consequently, the procedure does not have the object of denying liability, nor does it imply an admission of liability. (38) Therefore the existence of liability is by no means the central point of the procedure.

43.      This conclusion is not altered by the fact, invoked by the Netherlands Government, that in the framework of that procedure claims must be verified and may be disputed by the debtor. Regarding, first, the verification of claims by the administrator, I do not think this can be treated as a dispute between claimant and debtor. Secondly, the fact that the debtor can dispute the existence and the amount of the claim in the second stage of the procedure does not seem to me relevant in the light of the Court’s case-law. The Court has ruled that, in order to determine whether two actions between the same parties before the courts of different Contracting States have the same subject-matter, account should be taken only of the claims of the respective applicants, to the exclusion of the defence submissions raised by a defendant.  (39) There is nothing in the information provided by the national court or in the parties’ observations to indicate that a potential claimant is informed, when the order authorising the establishment of the liability limitation fund and the application are served on him, as to whether the shipowner or charterer intends to dispute liability to that claimant in principle. This is why it seems to me that the Court’s reasoning in the TheTatry, concerning actions for a declaration of liability and for a declaration of non-liability, to the effect that an action for a declaration of non-liability implicitly entails submissions denying the existence of an obligation to pay damages, cannot be transposed to a liability limitation procedure.

44.      Consequently I think that there is no situation of lis pendens as between a liability limitation procedure, such as that in the present case under Netherlands law, and an action for damages.

45.      No doubt a liability limitation procedure may result in a decision which transpires to be to some extent irreconcilable with a judgment given in another Contracting State because the object of such a procedure is to prevent a claimant from pursuing recovery of his claim over and above the amount which may be allocated to him under the 1957 Convention. Consequently, the decision made on the completion of the procedure may prove to be irreconcilable with a final judgment obtained in another Contracting State ordering the owner or charterer of the ship which caused the damage to pay damages exceeding the maximum compensation fixed by the 1957 Convention. However, this is not sufficient to constitute a situation of lis pendens because not all the conditions of Article 21 of the Brussels Convention are fulfilled. Furthermore, the risk of irreconcilable judgments may be precluded to a large extent by the application of Article 22 of the Brussels Convention concerning related actions, which states that, where 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. This reasoning is also confirmed by the Schlosser Report, (40) which states that Article 22 of the Brussels Convention is applicable in a hypothetical situation where proceedings to limit liability have been brought in one State and an application to establish the claim is lodged in another State. (41) The court second seised with a claim for damages may, in such a hypothetical situation, decline jurisdiction in favour of the court first seised with an application for the limitation of liability. Likewise, in a situation where, as appears to be the case here, (42) an action for damages was brought first, the court dealing with the liability limitation procedure could stay judgment until a decision on the claim for damages has been given. Consequently, the rule on related actions could, in both situations, enable the court dealing with the liability limitation procedure, and with which the liability limitation fund has been placed on deposit, to determine or verify whether such limitation can be relied upon as against the claimants concerned and then to distribute the fund. In any case, as the Højesteret observes, (43) a liability limitation scheme such as that provided for by Netherlands law does not prevent claims from being determined beforehand by a court of another Contracting State.

46.      In view of all the foregoing factors, I propose that the Court’s reply to the first question from the Højesteret should be that a procedure to establish a liability limitation fund, such as that initiated in the present case by the shipowners under Netherlands law by means of an application naming the potential victim of the damage, and an action for damages brought by that victim against those shipowners are not proceedings involving the same cause of action within the meaning of Article 21 of the Brussels Convention.

B – The second question

47.      The Højesteret’s second question is whether an order to establish a liability limitation fund under the Netherlands procedural rules in force in 1986 is a judgment within the meaning of Article 25 of the Brussels Convention. This question, it seems to me, seeks to ascertain whether the order made by the Arrondissementsrechtbank Groningen on 27 May 1987 must be regarded as a judgment within the meaning of that article.

48.      As I have stated, Article 25 of the Brussels Convention defines ‘judgment’ for the purposes of the Convention as ‘any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution’. The wording of the article shows that two criteria are relevant for a reply to the question before the Court. First, Article 25 seeks to cover all judgments, whatever they may be called in the national legal system, which fall within the substantive ambit of the Brussels Convention. As the Schlosser report, cited above, (44) makes clear, it is not limited to a judgment terminating in whole or in part the proceedings before the court. It also covers interlocutory court decisions and decisions ordering provisional or protective measures. An order which, as in the present case, fixes provisionally the amount to which a shipowner’s liability is limited is therefore intended to fall within the scope of Article 25.

49.      Secondly, the decision in question must issue from a court of a Contracting State. This requirement means, in the first place, that the body from which the decision originated acted independently of the other organs of the State. On this first point, it does not appear to be open to question and it is not disputed that the Arrondissmentsrechtbank Groningen adopted the decision in question in the exercise of its adjudicative function. In the second place, the procedure which led to the adoption of the decision must be conducted with due regard to the rights of the defence. This requirement is the counterpart of the simplified rules for the recognition and enforcement in one State of judgments delivered in another Contracting State. As the Court observed in the Denilauler judgment, (45) ‘it is because of the guarantees given to the defendant in the original proceedings that the [Brussels] Convention, in Title III, is very liberal in regard to recognition and enforcement’. The Court concluded that the Convention is fundamentally concerned with judicial decisions which, before their recognition and enforcement are sought, have been, or have been capable of being, the subject, under various procedures, of an inquiry in adversarial proceedings.  (46)

50.      It is this second requirement which is in issue in the present case. According to Mærsk, the order of 27 May 1987 is not a judgment within the meaning of Article 25 of the Brussels Convention because it was made at the conclusion of an ex parte procedure, the shipowners’ application not having been served on Mærsk. Like the other interveners, I am inclined to the view that this does not accord with the Court’s case-law. In my opinion, it is clear from the reasoning of the Denilauler judgment that the important point is that the decision in question should have been capable of being the subject of an inter partes procedure before a request was made for the decision to be recognised and enforced in a State other than the State in which it originated. This is confirmed by the position taken by the Court in the Hengst Import judgment, in which the Court considered the payment order procedure in Italian law which enables a creditor, following an application which is not at first served on the debtor, to obtain an order for payment, (decreto ingiuntivo).  (47) The Court stated that the order at issue was undoubtedly a judgment capable of recognition and enforcement under Title III of the Brussels Convention since there could have been an inter partes hearing in the State where it was made before recognition and enforcement were sought in another State. (48) It follows that, even if the original procedure which led to the decision concerned was unilateral, it is sufficient that it could have become an inter partes procedure in the State where the decision was made before the enforcement of that decision was sought in another State for the decision to be deemed a judgment within the meaning of Article 25 of the Brussels Convention and to be covered by the simplified rules of recognition and enforcement.

51.      I think these precedents can be transposed to the liability limitation procedure in force in Netherlands law in 1986. As in the payment order procedure described above, the order made on the conclusion of the first, ex parte, stage does not take effect before it has been served on the claimants and they can lodge objections for the purpose of challenging, before the court which made the order, any aspect of the order which may prejudice their interests, namely the debtor’s right to have his liability limited and the amount of such limitation. Furthermore, the claimants may appeal against the order as soon as it is made and challenge the jurisdiction of the court which made it. It is not until after the decisions of the court hearing these appeals have become final that the administrator draws up a distribution statement which, when finalised, has the effect of extinguishing the claims of those claimants who, although duly notified, have not proved their claims, and has also the effect of blocking separate proceedings by claimants named on the distribution list.

52.      Consequently, it was only after the order granting the application for the limitation of liability had been served on the claimants named therein that they were in a position to challenge the order in principle and as to the amount in question, and only after they were called upon to prove their claim was the limitation effective as against them so as to preclude proceedings by them against the debtor on the basis of the same harmful event. Therefore it may be concluded that the liability limitation ordered by the Netherlands court could prevent other proceedings by the claimants only after both parties had been given an opportunity to make submissions on the substance of the case.

53.      In view of the foregoing, I propose that the Court’s reply to the second question from the national court should be that a decision ordering the establishment of a liability limitation fund in accordance with the Netherlands procedural rules in force in 1986 is a judgment of a court or tribunal for the purposes of Article 25 of the Brussels Convention.

C – The third and fourth questions

54.      I shall examine these two questions together. By its third question, the national court asks whether a decision constituting a liability limitation fund without prior service on the claimant concerned can be denied recognition in another Contracting State on the basis of Article 27(2) of the Brussels Convention. The fourth question is whether, if the reply to the third question is in the affirmative, the claimant concerned may be denied the benefit of Article 27(2) if he has brought an action before a higher court challenging the jurisdiction of the court which made the decision authorising the liability limitation fund, but did not raise the objection that the decision was not served on him.

55.      With these questions, the national court seeks to ascertain, first, whether the order of 27 May 1987 may be denied recognition in another Contracting State on the basis of Article 27(2) by reason of the fact that the order was made without the shipowners’ application having been served on Mærsk beforehand. Secondly, the national court asks whether, if the reply to the previous question is in the affirmative, the fact that Mærsk appealed against the order and challenged the jurisdiction of the court which made the order, without raising the objection that it, Mærsk, had not been notified of the initial application, must have the consequence that Article 27(2) is not applicable.

56.      It must be observed that, under Article 27(2), a judgment is not to be recognised where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence. This provision, which is an exception to the principle of mutual recognition of judgments delivered in the Contracting States, has the purpose of safeguarding the rights of the defence. According to settled case-law, Article 27(2) is intended to ensure that a judgment is not recognised or enforced under the Brussels Convention if the defendant has not had an opportunity of defending himself before the court first seised. (49) The corollary of Article 27(2) is Article 20, which requires a court, where a defendant domiciled in another Contracting State does not enter an appearance, to declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of the Convention, and to stay the proceedings so long as it is not shown that the defendant was in a position to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence.

57.      When examining the previous question, I showed that the order granting an application for the limitation of liability made pursuant to the Netherlands procedure applicable at the material time may be regarded as a judgment within the meaning of Article 25 of the Brussels Convention because the order is capable of giving rise to an inter partes procedure. Consequently the notification of the order enables the claimants concerned to challenge before the court which made the order the debtor’s right to have his liability limited and the amount to which it is to be limited. I have also shown from the Court’s case-law that, in the Netherlands liability-limitation procedure, the order accompanied by the application must be deemed to be the document instituting the proceedings within the meaning of Article 27(2).

58.      It follows, in my view, that failure to serve the application for the limitation of liability on the claimants concerned does not justify a refusal to recognise the order authorising the constitution of a liability limitation fund as the order was, or could have been, the subject of inter partes proceedings on the basis of the conditions described above. In other words, Article 27(2) should not be applied if the claimant concerned was duly notified of the order in sufficient time to enable him to arrange for his defence. Consequently, it was through notification of the order that the claimant receiving it became a party to the liability limitation proceedings before the court of first instance and was enabled to submit a defence by lodging objections for the purpose of contesting the debtor’s right to have his liability limited and the amount to which it was to be limited.

59.      I would also be inclined to conclude that an appeal against the order to a higher court which is confined to disputing the jurisdiction of the court first seised should not make it unnecessary to give due notice of the order. It does not seem to me that such an appeal can be treated as the appearance of the defendant before the court of the State in which judgment was given for the purpose of Article 27(2). It is clear from the Court’s case-law that the phrase ‘in default of appearance’ in Article 27(2) must not be interpreted in the light of national procedural rules, but must be given a Community definition. (50) In the Sonntag judgment, the Court explained the meaning of ‘appearance’. The issue in that case was whether a defendant who had arranged for his defence in criminal proceedings which were also intended to lead to a ruling on the civil interests of the victim should be deemed to have appeared in relating to the civil proceedings which had been the subject of oral submissions during which he was present, but on which he had made no observations. The Court found that where the defendant answers at the trial to the charges against him and is aware of the civil-law claim made against him in the context of the criminal prosecution, he must in principle be regarded as having appeared in the proceedings taken as a whole. However, the Court added that this did not preclude the possibility for the defendant to decline to appear in the civil action. Furthermore, the Court observed that the counsel chosen by the defendant in the main proceedings had raised no objections to the civil claim, even during oral argument on that claim. (51) Accordingly, the Court reached the logical conclusion that, because the defendant had arranged for his defence in the criminal proceedings and had then attended the hearing of the civil action without objecting to the latter, he had appeared also in the civil proceedings.

60.      The facts are very different in a situation such as that in the main proceedings here. Unlike the defendant in the Sonntag case, Mærsk was not present at the proceedings concerning the shipowners’ right to have their liability limited and the amount to which it was to be limited. Such proceedings could not take place because, as we have seen, they are deemed to take place after the order is made, if the person concerned lodges an objection on those points. Therefore it does not seem to me that the mere fact that Mærsk was aware of the order of 27 May 1987, on the ground that it appealed against it, can be treated as an appearance at a hearing in the course of which those points were put to Mærsk or its representative without any objection on their part. I do not wish to question the principle that an order made on application, on the completion of an ex parte procedure, may be regarded as a judgment because it is capable of being the subject of inter partes proceedings after it is made. This legal doctrine, which enables account to be taken of the payment order procedures in force in several Contracting States, meets a genuine need, particularly in relation to the treatment of disputed claims in an insolvency. However, this doctrine must maintain a fair balance between the rights of creditors and the rights of the defence. I would therefore be inclined to take the view that an appeal against an order made without prior submissions by both parties, that order not having been served in accordance with the procedural requirements, does not render notification of the order unnecessary on the ground that the appeal relates only to the jurisdiction of the court which made the order, with the result that the other aspects of the order which affect the defendant’s interests will not be the subject of submissions by both parties when the appeal is heard. We may therefore conclude that Mærsk’s appeal against the order of 27 May 1987 on the jurisdiction of the court seised cannot lead to the presumption that Mærsk made an appearance in the liability limitation procedure, so that Article 27(2) of the Brussels Convention is not applicable. Consequently the appeal could not disperse with the need to effect due service on Mærsk of the document instituting the proceedings, namely the order of 27 May 1987.

61.      In this connection the summary of the facts provided by the Højesteret shows that the administrator appointed by the Arrondissementsrechtbank Groningen sent a registered letter of 1 February 1988 which ‘informed’ Mærsk’s lawyer of that order. The appropriate court of the State in which recognition is sought will have to determine whether that registered letter may be deemed to constitute due service of the order. It must be observed that this question must be decided on the basis of the legislation of the State in which judgment was given and of the conventions binding on the two States in question.  (52) Therefore the question must be decided by reference to the Netherlands rules on the limitation of liability. Moreover, as the Netherlands Government points out, Article 10 of the Hague Convention,  (53) to which the Kingdom of the Netherlands and the Kingdom of Denmark were parties at the material time, provides for the option of sending judicial documents to persons abroad directly by post. The court of the State in which recognition is sought will also have to decide whether service was effected in good time to enable the defendant to arrange for his defence. It must also be observed that, when considering this question, the court may take into account all the facts of the case and also the conduct of the parties.  (54)

62.      In the light of these matters and of the fact that Mærsk was requested to prove its claim in the Netherlands procedure by letter of 25 April 1988, it appears possible that the decision closing the Netherlands liability limitation procedure not only precludes actions by Mærsk in the Netherlands but must also be recognised in Denmark and prevents the enforcement there of a judgment which would require the shipowners to pay damages to Mærsk in respect of the harmful event in question.

63.      As a result, I am of the opinion that a decision constituting a liability limitation fund in accordance with the Netherlands procedure in force, without service of the application for the limitation of liability on an affected claimant, cannot be denied recognition in another Contracting State on the basis of Article 27(2) of the Brussels Convention inasmuch as due service of the order on the claimant was effected in good time to enable him to safeguard his rights of defence and, in particular, to challenge the debtor’s right to the limitation of his liability and the amount to which it was to be limited. The fact that the claimant challenged before a higher court the jurisdiction of the court which made the decision authorising the constitution of a liability limitation fund, without raising the objection that prior service of the application for limitation of liability had not been effected, does not remove the obligation to effect due service of the order in good time.

V –  Conclusion

64.      In the light of the foregoing, I accordingly propose that the Court reply as follows to the questions referred to it by the Højesteret:

(1)
A procedure for the establishment of a liability limitation fund, such as that initiated in the present case by shipowners under Netherlands law by means of an application naming the potential victim of the damage, and an action for damages brought by that victim against those shipowners are not proceedings involving the same cause of action within the meaning of Article 21 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland.

(2)
A decision ordering the establishment of a liability limitation fund in accordance with the Netherlands procedural rules in force in 1986 is a judgment within the meaning of Article 25 of that Convention.

(3)
A decision to establish a liability limitation fund taken in accordance with the Netherlands procedure in force, in the absence of service of the application for the limitation of liability on an affected claimant, cannot be refused recognition in another Contracting State on the basis of Article 27(2) of the Brussels Convention in so far as due service of the order on the claimant was effected in good time to enable him to safeguard his rights of defence and, in particular, to challenge the debtor’s right to limit his liability and the amount to which it was to be limited. The fact that the claimant challenged before a higher court the jurisdiction of the court which made the decision authorising the establishment of a liability limitation fund, without raising the objection that prior service of the application for limitation of liability had not been effected, does not remove the obligation to effect due service of the order in good time.


1
Original language: French.


2
.International Transport Treaties, suppl. 1-10 (January 19865), p. 81, ‘the 1957 Convention’.


3
OJ 1978 L 304, p. 36, as amended by the Convention of 9 October 1978 on the Accession of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and amended text, p. 77), (‘the Brussels Convention’).


4
Georges, J., ‘La limitation de la responsabilité des propriétaires de bateaux’, Sauveplane Rome éditions Unidroit, 1959, p. 62.


5
The 1957 Convention, which entered into force on 31 May 1968, was ratified by the Kingdom of the Netherlands on 10 December 1965. The Netherlands gave notice of its withdrawal from the Convention on 1 October 1989. The Kingdom of Denmark was also a party to the Convention from 1 March 1965 to 1 April 1984 and was therefore not bound by the Convention at the material time, namely June 1985. However, the national court draws no inference from this and does not mention it. Consequently I shall not take it into account in this Opinion.


6
Article 3.


7
Article 4.


8
.International Transport Treaties, suppl. 1-10 (January 1986), p. 255. This Convention did not come into force in Denmark until 1 December 1986 and in the Netherlands until 1 September 1990. It extended to other persons the right to benefit from the limitation. It provided that only intentional or inexcusable fault on the part of the liable party could eliminate the right to the limitation and it increased the maximum liability in certain cases.


9
Observations of the Netherlands Government, paragraph 32.


10
Ibid., paragraphs 40 and 41.


11
I refer, in particular, to ‘Klagen’ in the German version, ‘vorderingen’ in the Dutch version, ‘domande’ in the Italian version, ‘proceedings’ in the English version, ‘demandas’ in the Spanish version, ‘acções’ in the Portuguese version and ‘krav’ in the Danish version.


12
See the judgments in Case 144/86 Gubisch Maschinenfabrik [1987] ECR 4861, paragraph 8; Case C-351/89 Overseas Union Insurance and Others [1991] ECR I-3317, paragraph 16; Case C-406/92 TheTatry [1994] ECR I-5439, paragraph 32; and Case C-116/02 Gasser [2003] ECR I-14693, paragraph 41.


13
See Overseas Union Insurance, paragraph 16.


14
See Gubisch Maschinenfabrik, paragraph 14, and Overseas Union Insurance and Others, paragraphs 15 to 18.


15
It is not certain that such a procedure can exist in the framework of the Convention concluded in London on 19 November 1976 because, according to Articles 10 to 12 thereof, the limitation of liability can no longer be invoked as a preventive measure, as on the basis of the 1957 Convention, but only as a defence to an action for damages. The liability limitation fund may be placed on deposit at the court dealing with the action for damages or with any other competent authority of the State in which the action was brought.


16
Points 40 to 46.


17
Case 129/83 [1984] ECR 2397, paragraph 14.


18
In that judgment the Court found that the court ‘first seised’, within the meaning of Article 21 of the Brussels Convention, is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned (paragraph 16). I think this reply holds true in the situation where two courts are seised of inter partes proceedings. In the Zelger case, the question was whether, in that situation, the moment at which the document initiating the proceedings was lodged with the court was decisive or the moment at which that document was served on the defendant.


19
Paragraph 11.


20
Paragraph 30.


21
See Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraphs 20 and 21, and Joined Cases C-174/98 P and C-189/98 P Netherlands and van der Wal v Commission [2000] ECR I-1, paragraph 17.


22
See Case 49/84 Debaecker and Plouvier [1985] ECR 1779, paragraph 10, and Case C-7/98 Krombach [2000] ECR I-1935, paragraph 43.


23
See the Jenard Report on the Brussels Convention, OJ 1979 C 59, p. 1, 10.


24
See Case C-111/01 Gantner Electronic [2003] ECR I-4207, paragraph 30.


25
It must be observed that Article 30 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which replaces the Brussels Convention from 1 March 2002, provides that, for the purposes of applying the rules on lis pendens and related actions, a court is deemed to be seised: ‘1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or 2. if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court.’ Consequently both these situations refer to an inter partes procedure.


26
Article 27(2) provides that a judgment is not to be recognised where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence.


27
Case 166/80 [1981] ECR 1593, paragraph 9.


28
Case C-474/93 [1995] ECR I-2113, paragraph 19.


29
The national court states that ‘by registered letter of 1 February 1988 … the liquidator … informed Mærsk’s lawyer of the court’s order requiring the constitution of a limitation fund’ (p. 11 of the English version).


30
The English version refers only to ‘the same cause of action’ and the German version does not distinguish between ‘subject-matter’ and ‘cause of action’.


31
See Gubisch Maschinenfabrik, paragraph 14.


32
See TheTatry, paragraph 39.


33
Ibid., paragraph 41.


34
See Gubisch Maschinenfabrik, paragraph 16.


35
See TheTatry, paragraph 42.


36
Order for reference, point 2.5.


37
That is to say, the damage said to have been caused by the shipowners’ trawler to the pipelines laid by Mærsk in the North Sea while the trawler was fishing in June 1985.


38
It must be observed that, under Article 1(7) of the 1957 Convention, ‘the act of invoking limitation of liability does not constitute an admission of liability’.


39
.Gantner Electronic.


40
Schlosser Report on the Convention on the Accession of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and to the Protocol on its interpretation by the Court of Justice, OJ 1979 C 59, p. 71.


41
Point 129.


42
The reasoning to the effect that it is not the application for the opening of a liability limitation procedure which initiated the proceedings before the Netherlands court, but rather the order of 27 May 1987, seems to me to be perfectly applicable in the context of Article 22 of the Brussels Convention.


43
Order for reference, point 2.5.


44
Paragraph 184.


45
Case 125/79 [1980] ECR 1553, paragraph 13.


46
Ibid.


47
In Italian law, this decision and the application must be served on the debtor, who then has a certain period within which to appeal. If the debtor appeals, the civil inter partes procedure of general law is followed. Failing an appeal, the court declares the order enforceable on application by the creditor.


48
.Hengst Import, paragraph 14.


49
.Klomps, paragraph 9; Case C-123/91 Minalmet [1992] ECR I-5661, paragraph 18; and Case C‑172/91 Sonntag [1993] ECR I-1963, paragraph 38.


50
See the judgments in Klomps, paragraphs 12 and 13, Minalmet, paragraphs 19 to 22, and Sonntag, paragraphs 39 to 44.


51
Paragraphs 41 and 42.


52
See Klomps, paragraph 15.


53
Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.


54
See Klomps, paragraph 20, and Debaecker and Plouvier, paragraphs 20, 22, 27 and 31 to 33.

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