61996C0351

I - Introduction

1 The Court is asked, in this reference from the French Cour de Cassation, to interpret the notion of `the same parties' in Article 21 of the Brussels Convention. (1) The issue is whether, in the context of a claim in general average made by an insurer in a French court and an earlier claim for a negative declaration against the insured in a Dutch court that there is no such liability, there is a lis alibi pendens for the purposes of Article 21. Accordingly, the issue effectively is whether the insured should be treated as the `same party' as its insurer.

II - The legal and factual background to the reference

A - The relevant provisions of the Convention

2 Title II of the Convention deals with `jurisdiction'. Whereas the general rules are set out in section 1, various special rules qualifying those general rules are established by sections 2 to 9.

3 Section 8 is entitled `Lis Pendens - related actions' and consists of Articles 21 to 23. Prior to its amendment by the San Sebastian Convention, Article 21 of the Convention was worded 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 decline jurisdiction in favour of that court.

A court which would be required to decline jurisdiction may stay its proceedings if the jurisdiction of the other court is contested.'

4 In the case of `related actions', the rule under Article 22 of the Convention is that the court other than that first seised may stay its proceedings. Related actions are defined as those which `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'.

5 Title III of the Convention concerns `recognition and enforcement'. In accordance with the general objective of the Convention, (2) the general principle stated in Article 26 is that `a judgment given in a Contracting State shall be recognised in the other Contracting States without any special procedure being required'. However, Article 27 prescribes a limited number of grounds upon which such recognition may be refused. For the purpose of the present case, only the third indent is potentially relevant:

`3. [I]f the judgment is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought.'

B - Factual background and procedure before the referring court

6 Consolidated Metallurgical Industries (hereinafter `CMI') charged Mr Velghe to transport on a barge, known as the Sequana, a cargo of ferrochromium from Rotterdam in the Netherlands to Garlinghem-Aire-la-Lys in France. (3) The vessel, having begun to take in water, foundered in Netherlands inland waters early on 4 August 1989, but not before the captain was apparently able to steer it from the main channel. Drouot Assurances SA (hereinafter `Drouot'), the insurer of the vessel (or hull), caused the ship to be refloated at its own expense, thus salvaging CMI's cargo. Drouot brought proceedings on 11 and 13 December 1990 before the Tribunal de Commerce (Commercial Court), Paris (4) against CMI, Protea Assurance (hereinafter `Protea', a South African company), the insurer of the cargo, as well as Protea's European representative, the Groupement d'intérêt économique (GIE) Réunion européenne (hereinafter `GIE'), (5) for payment of the sum of HFL 99 485.53, being the figure set by the average adjuster as the amount of the contribution of CMI and Protea to the general average. (6) However, CMI and Protea pleaded, by way of a procedural objection to the French action, a lis alibi pendens arising out of an action which they had earlier brought against Mr Walbrecq and Mr Velghe (7) before the Arrondissementsrechtbank (District Court), Rotterdam on 31 August 1990. (8) According to the case-file and the observations submitted to the Court, CMI and Protea sought, in the Netherlands action, a declaration to the effect that they were not obliged to contribute to the general average. Such a negative declaration, which, apparently, could not have been sought if the action had been initiated in France, was sought in the alternative to a claim that Mr Velghe be held responsible for the occurrence of the accident on the ground that, as captain, he had permitted the barge to become unseaworthy by overloading it at Rotterdam.

7 The lis alibi pendens plea was rejected on 11 March 1992 by the Tribunal de Commerce on the basis that the parties to the two actions were not the same; viz. Drouot was not a party to the Netherlands action and Messrs Velghe and Walbrecq were not parties to the proceedings before it. Moreover, in the view of the Tribunal de Commerce, the issues in the two actions were not the same. The defendants appealed to the Cour d'Appel (Court of Appeal), Paris.

8 According to the judgment of the Cour d'Appel, CMI and Protea contended before that court that the object of the two actions was the same and that Drouot was not a party to the Netherlands action only because Dutch procedural rules did not permit insurers to be named. In its judgment of 29 April 1994, the Cour d'Appel took the view that it was uncontested that Netherlands procedural rules precluded the possibility for an insurance company to be present in a case involving its insured. Having recited the broader scope of the Netherlands action (including, as it did, a claim regarding the owner's liability for the unseaworthy state of the vessel), it held that, in fact, it, none the less, encompassed the subject-matter of the French action. Furthermore, it held that Drouot could be regarded as a party to the Netherlands action `through the intermediary of the insured'. Accordingly, the plea of lis alibi pendens was upheld.

9 On appeal to the Cour de Cassation (Court of Cassation), Drouot contended, primarily, that the Cour d'Appel should not have upheld the lis alibi pendens plea, since neither the nature of the proceedings nor the identity of the parties in the two actions was the same, and that the impugned judgment was incompatible with Article 21 of the Convention. (9)

10 The Cour de Cassation, being of the view that the appeal before it turned on the interpretation of the concept of the `same parties' used in Article 21 of the Convention, (10) decided to refer the following question to the Court pursuant to Articles 1 to 3 of the Protocol of 3 June 1971 on the interpretation of the Convention: (11)

`... [W]hether, with regard in particular to the independent concept of "same parties" used in Article 21 of the Brussels Convention, there is inter-State lis alibi pendens for the purposes of that provision where a court of one Contracting State is seised by the insurer of a vessel that has been shipwrecked with an action seeking from the owner and the insurer of the cargo on board partial reimbursement, by way of contribution to the general average, of the refloating costs, when a court of another Contracting State was seised previously by that owner and insurer with an action against the owner and the charterer of the vessel for a declaration that they were not obliged to contribute to the general average, and the court seised second declines jurisdiction, despite the parties in the two cases not being strictly identical, on the ground that the procedural law applicable before the court seised first "restricts the opportunity for an insurer to be party to proceedings in which the insured is involved" so that the insurer of the vessel is in fact also involved, through the intermediary of the insured, in the case brought first.'

III - Observations

11 Written and oral observations have been submitted by Drouot, the French Republic and the Commission. On the other hand, GIE and the Federal Republic of Germany merely submitted written observations while CMI and Protea submitted joint oral observations. They may be summarised as follows.

12 At the hearing, counsel for Drouot pointed out that the general provisions of maritime law apply to fluvial transport on the Rhine and Moselle rivers, under which, he submitted, Drouot's contract of insurance, in the absence of an express stipulation to the contrary, must be regarded as merely covering the hull. Vessel insurance covers only liability for damage done by the vessel to other vessels or to port or riverside installations. Drouot also submitted that the maritime rules of general average (see further paragraphs 17 to 19 below) apply to navigation on the Rhine and Moselle rivers. Based on the case-law concerning Article 21 of the Convention (12) Drouot submits that no lis alibi pendens may arise unless the same parties figure in both proceedings. The criteria set out in Article 21 must be construed autonomously from related concepts in the respective laws of the Contracting States. Both the judgment and the Advocate General's Opinion in The Tatry support the view that there is lis alibi pendens only when there is a strict identity of parties in the two procedures. At the hearing, Drouot submitted that, for parties to be identical, they must have a common interest to defend or, at least, a common argument to make, which, in its view, cannot be the case regarding its supposed representation by Mr Velghe in the Netherlands action. It claims that, as insurer of the hull, it was not responsible for the general presumed liability of the boat-owner. In its written observations, Drouot submits that the status of a person as a party before a court allegedly first seised must be determined by the law of the forum where the plea of lis alibi pendens is raised, i.e. by French law in the present case. (13) Finally, Drouot submitted that, apart from the fact that it was neither voluntarily nor involuntarily a party to the Netherlands action, it had no interest in that action, since, as insurer of the Sequana, it was liable to reimburse Mr Velghe in respect of his contribution to the general average, notwithstanding the possible responsibility for the occurrence of the accident.

13 In their oral observations, CMI and Protea, first, contended that Drouot was not merely, as claimed, the insurer of the vessel but also of the personal liabilities of its captain and owner, namely Mr Velghe. Secondly, counsel for CMI and Protea pointed out that his clients had initially brought an action in France before the Tribunal de Commerce, Béthune (the place of Mr Velghe's residence) against both Mr Velghe and Drouot, in which, it was alleged, Drouot claimed that the action against it should have been brought in Rotterdam. Accordingly, CMI and Protea instituted the Netherlands action but did not cite Drouot because of the alleged Dutch procedural rules which prevent the insurer being a party to proceedings brought against its insured. As regards the interpretation of Article 21 of the Convention, CMI and Protea contended that the most important consideration was the avoidance of the adoption of incompatible decisions by courts in different Contracting States. They relied in particular on Gubisch as establishing the identity of two causes of action concerning, on the one hand, the annulment of a contract and, on the other, its enforcement.

14 France submits that the autonomy of the conditions required for the occurrence of a lis alibi pendens by Article 21 of the Convention would be undermined if the peculiarities of the procedural law of a Contracting State were to determine whether the `same parties' are present. (14) It laid particular emphasis on the need to respect the rights of defence, or fair hearing, of the insured. An insurer is not represented in national proceedings by its insured. It does not have access to the court in legal proceedings involving its insured, so as to permit it to present its own arguments or defend its position, and the legal rights and interests of an insurer and its insured often do not coincide. Thus, even assuming identity between insurer and insured, the rights of defence of insurance companies could only properly be guaranteed if Article 21 of the Convention were interpreted as requiring, as a prerequisite to upholding a plea of lis alibi pendens, that the parties supposedly present in both actions actually be involved as principal parties.

15 Germany also stresses the importance of adopting an autonomous interpretation but argues for a broad concept of `same parties' so as to avoid the occurrence of irreconcilable judgments within the meaning of the third indent of Article 27 of the Convention. Given the relationship between the concepts of lis alibi pendens and res judicata, Germany contends that parties to a second action, who are not formally identical to those involved in a first action, should not be regarded as being `the same', unless they would be bound by the effects of the judgment given by the court first seised, so as to create a danger of irreconcilable judgments if the plea were not upheld. For this purpose, the second court seised should refer to either the substantive or procedural rules of the first court seised, as well as its own, in order to determine whether any binding third-party effects of the first court's judgment would be recognised. Finally, Germany emphasises the need to ensure that Article 21 be applied in a manner that respects the requirements of effective access to court. Thus, where a plea of lis alibi pendens is upheld but the first action is unsuccessful, it must remain possible for the party whose second action was affected by that plea subsequently to resume its action before the second court.

16 The Commission, though recognising that the question referred focuses only on the concept of the `same parties', submits that the two actions may be regarded as having the same cause of action and object. (15) On the identity of the parties, the Commission observes that the question referred raises the novel issue as to whether Article 21 of the Convention permits a court before which a plea of lis alibi pendens is raised to go beyond the formal identification of the parties in the proceedings before the court first seised. The concept of the `same parties' should, in its view, be interpreted strictly. Besides the need to preserve the autonomy of that concept from the laws of the Contracting State concerning matters such as subrogation, there are various other reasons which militate against assimilating an insurer with its insured. The interests of an insured and an insurer are not necessarily identical; the efficient administration of justice may not be well served by making the insurer await the outcome of a first set of proceedings to which it is not a party whenever it wishes to claim, in a different action, that, for example, no subrogation actually arises. In the Commission's view the wording of Article 21, by referring to the same parties and not to other parties who may have rights or liabilities arising from the rights or liabilities of the actual parties, supports this approach. At the hearing, the Commission's agent questioned the practicality of the approach suggested by Germany: if the second court seised were obliged systematically to assess the binding effects of a potential judgment to be given by the first court seised before upholding a plea, the practical application of the notion of lis alibi pendens in Article 21 would become unduly complicated.

IV - Analysis

A - Introduction

17 The disputed claim in the French action concerns a contribution to general average. Although, as France rightly points out, the Court has not been asked to assess the similarity of that cause of action with those involved in the Netherlands action, I think that it would still be helpful to take cognizance of the nature of a claim for general average contribution. A short review of the particularities of the legal doctrine of general average will, I think, assist the application in this particular case of the concept of identity of parties in Article 21 of the Convention.

B - The notion of general average

18 The notion of general average lies at the heart of both the proceedings instituted by Drouot in France and the alternative claim by Protea and CMI in the Netherlands. (16) It is a notion of maritime law of great antiquity. Its origins can be traced to the Rhodian Sea Law, which also found later expression in Roman Law, whereby the owner of cargo subjected to jettison (jactus factus levandae navis gratia) to save a vessel could spread his loss, by claiming contribution, among the owner of the vessel and other cargo owners. (17) It came, over time, to include claims based on other types of damage and expense incurred to avoid it. In modern times, it generally takes the form, in practice, of the incorporation into contracts of affreightment and policies of marine insurance of the conventional York-Antwerp Rules. These rules, regularly revised since the first International General Average Rules were adopted at York in 1864, appear to have been given effect in French law by a law of 1967. (18) The nautical event giving rise to the claims at issue before the Dutch and French courts did not, however, take place at sea but on a part of the Rhine and Moselle waterway system. Counsel for Drouot explained at the hearing that, by virtue of a law of 1895, passed during the period of the attachment of Alsace to Germany, maritime law was applied to navigation on the Rhine and Moselle. The rules specifically applied in the charter-party in this case are those of Rhine, Antwerp and Rotterdam and, as appears from the case-file, general average is therein defined as the sacrifices and expenses reasonably made and incurred with the object of saving a boat and its cargo from common peril.

19 The gist, therefore, of the notion of general average is that participants in a common commercial adventure should contribute equitably to the damage or loss of one of the participants who has, for the benefit of all, suffered a sacrifice or, by extension, reasonably incurred expense to prevent loss. Insurers of the hull and cargo are treated as participants and may claim or be liable for general average contribution. A claim for general average contribution is, therefore, not necessarily made by an insurer.

20 That conclusion seems to me to have a bearing on the question of the capacity of Mr Velghe (and Mr Walbrecq) before the Dutch court. It is true that an insurer, having fully discharged its liability to its insured, may in certain circumstances, by virtue of a right of subrogation, effectively step into the shoes of the insured so as to pursue claims (including a claim for general average contribution) against third parties. This right may, depending on the applicable law, be exercised either in the name of the insured or by the insurer in its own name, but only so as to invoke the rights of the insured and after payment. That clearly does not apply to the Netherlands action; nor does it apply to the French action where Drouot's claim is not based on subrogation to any rights of Mr Velghe but on its general average claim. The precise nature of the action before the Dutch court is known only indirectly; but it is generally agreed that it includes, as one element, a claim for a negative declaration that CMI and Protea be held not liable to contribute to general average. Thus, in the particular context of a general average claim, it is difficult to see how the prima facie lack of identity between Mr Velghe and Drouot should be merged into an identity of interest.

21 However, there are other problems of a practical nature to be addressed in considering whether a party should be treated as representing his insurers for the purposes of Article 21 of the Brussels Convention. The court in the Contracting State where the issue of lis alibi pendens in the sense of Article 21 of the Convention is raised, and which is informed of the existence of a prior action claimed to be between the same parties in another Contracting State, will need to conclude that an insured, a named party in the other contracting State, should be treated as being the same party as his insurer. To start with, that court will need to investigate the relationship between insurer and insured. It is notorious that disputes between insurer and insured take a great variety of forms. I will cite only a few. The very existence of the policy may be in dispute; if its existence is established or admitted its validity may be contested on grounds of fraud, misrepresentation or non-disclosure; its application to the particular loss may be in doubt, as may be the quantum of the loss, the means of proving it or the time for payment. Even in the present case, there is a dispute between CMI and Protea, on the one hand, and Drouot, on the other (though not, so far as I am aware, between Drouot and Mr Velghe), regarding the scope of the cover under Drouot's policy of insurance. The second national court, in my hypothesis, might have to reach a conclusion on any of those potentially complex issues by reference to the law applicable in the other, or even a third, Contracting State.

22 The comparison of the capacity in which the claim for general average contribution is made by Drouot in the French court with that of Mr Velghe in the Dutch court is the key to the application of Article 21 of the Convention. The Drouot claim is made in its capacity as a party to the enterprise having made a sacrifice. It is not made as representative of Mr Velghe. Indeed, any claim made by the owner of a vessel which had sunk against the owner of the damaged cargo would be met, to say the least, with surprise, unless it were itself based on general average, i.e. on sacrifice. However, in the present case, Mr Velghe would not appear to have participated in the salvage of the vessel and, thus, would scarcely have incurred any such sacrifice.

23 Consequently, viewing the matter exclusively within the context of the present claim for general average contribution, there is no such identity of interest between Drouot and Mr Velghe as would justify, even if that were permitted, overlooking their nominal and real differences of identity so as to treat them as the `same party'.

C - The same parties

24 In upholding the plea of lis alibi pendens in the present case, the Cour d'Appel, in determining the identity of the parties to the Netherlands action, has relied upon a principle which, in its opinion, forms part of the procedural law of the Netherlands. It is right to point out that the provisions of the Convention were not cited to the Cour d'Appel. Nevertheless, the approach which it has adopted is not, in my opinion, compatible with the Court's decisions in Gubisch and The Tatry, where the Court declared unambiguously that the `substantive conditions' prescribed by Article 21 of the Convention for a successful plea of lis alibi pendens `must be regarded as independent'. (19) These substantive conditions represent a considered choice and the implicit rejection of the possibility of referring to the term lis alibi pendens as used in the different national legal systems of the Contracting States. (20) The application of the Convention concept of `the same parties' cannot, in my view, depend on the existence and scope of the Netherlands-law principle relied upon by the Cour d'Appel, since that represents a consideration of the law of the first court seised.

25 Next, it is necessary to assess what guidance the Court's case-law furnishes in respect of the autonomous Convention concept of the `same parties'. Zelger is not relevant because it only concerned the procedural formalities regulating the temporal point at which a court may be regarded as having been seised of an action. (21) In Gubisch, the Court was concerned with a situation whose `salient features' were that `one of the parties [had] brought an action before a court of first instance for the enforcement of an obligation stipulated in an international contract of sale ... [while] an action was subsequently brought against him by the other party in another Contracting State for the rescission or discharge of the same contract'. (22) The Court declared that the conditions laid down by Article 21 are exhaustive; namely, the two actions must be `between the same parties and involve the same cause of action and the same subject-matter'. (23) It proceeded, in circumstances where the present issue of identity of parties was not in doubt, to take the view that the concept of the same cause of action `cannot be restricted so as to mean two claims which are entirely identical'. (24) That the Court was clearly motivated by the need to avoid conflicting judgments emerges clearly from its statement that in circumstances such as those of the case before it: (25)

`There can be no doubt that a judgment given in a Contracting State requiring performance of the contract would not be recognised in the State in which recognition is sought if a court in that State had given a judgment rescinding or discharging the contract. Such a result, restricting the effects of each judgment to the territory of the State concerned, would run counter to the objectives of the Convention, which is intended to strengthen legal protection throughout the territory of the Community and to facilitate recognition in each Contracting State of judgments given in any other Contracting State.'

26 CMI and Protea have argued from Gubisch for a broad and flexible interpretation of the concept of the `same cause of action' and, by extension, of `the same parties' as those terms are used in Article 21 of the Convention. It is true that, in Gubisch, the Court held that the concept of `the same subject-matter', which, in effect, it interpreted into the English text by reference to the other language versions, could not `be restricted so as to mean two claims which are entirely identical'. (26) In practice, it applied that reasoning to the two actions one of which was brought to enforce and the other to rescind or discharge the same contract. In doing so, it attached great importance to the purpose expressed, inter alia, in Article 27(3) of the Convention of avoiding irreconcilable judgments between the same parties and how such judgments could arise if the competing claims had to be `entirely identical' before a lis alibi pendens plea could be upheld. That reasoning is not, however, equally applicable to the concept of `the same parties', since the judgment proceeds on the assumption that, whatever differences exist in the subject-matter, the parties are the same. Nothing in the judgment, in the text of Article 21 or in the purpose of the Convention requires that a flexible approach be adopted in that instance. The contrary is rather the case. Judgments are, in my view, truly irreconcilable only if they are contrary and given in actions between the same parties.

27 The judgment in The Tatry confirms this view and has the merit of having addressed the issue of identity of parties, albeit not in the radical form suggested in the instant case. The Court had to examine whether the Convention could be regarded as applicable in the case of two sets of proceedings involving the same cause of action but where some but not all of the parties were the same; i.e. where at least one of the plaintiffs and one of the defendants to the proceedings first commenced were among the plaintiffs and defendants in the second proceedings, or vice versa. (27) The Court first agreed with the recommendation of its Advocate General to the effect that the identity of the parties `cannot depend on the procedural position of each of them in the two actions, and that the plaintiff in the first action may be the defendant in the second'. (28) Having regard to the wording and objective of Article 21, `to prevent parallel proceedings...', (29) the Court declared that Article 21 `must be understood as requiring, as a condition of the obligation of the second court seised to decline jurisdiction, that the parties to the two actions be identical'. (30) It follows that this requirement must be strictly construed.

28 Thus, in The Tatry, the Court ruled that, `where some of the parties are the same as the parties to an action which has already been started, Article 21 requires the second court seised to decline jurisdiction only to the extent to which the parties to the proceedings pending before it are also parties to the action previously started before the court of another Contracting State'. (31) I agree with the Commission's contention that the application of Article 21 of the Convention cannot depend on the court before which the plea of lis alibi pendens is raised carrying out an inquiry into the true capacity of parties before the court of a different Contracting State.

29 My view, therefore, is that the concept of `same parties' is to be interpreted literally and strictly. The Court has used the word `identical'. This means that not only must the parties to the two actions be the same in the literal sense of the same natural or legal person, but also that they must appear in the same right. In particular, a person suing in his own right and for his own benefit is obviously not to be equated with the same person suing or being sued in a purely representative capacity, for example, as the legal personal representative of a deceased person or a person under a disability, or in any of the wide range of cases where a person may, in law, be named to represent corporate bodies or their creditors in cases of insolvency.

30 This does not, to my mind, create too rigid a framework for the operation of Article 21 of the Convention. On the contrary, it is in conformity with the objective of `simplification of formalities governing the reciprocal recognition and enforcement of judgments ...' found in Article 220 of the EC (formerly EEC) Treaty, which authorised the Member States, among other things, to enter into the Convention. Simple and transparent rules, capable of being applied on the basis of objective and readily accessible factors best serve this objective. Cases where a broader discretion is required to stay proceedings where related actions are brought in the courts of different Contracting States are catered for by Article 22 of the Convention. As Advocate General Tesauro explained in his Opinion in The Tatry, the idea of `irreconcilable' judgments in the third paragraph of Article 22 does not bear `the same restrictive meaning' as in Article 27(3). (32) According to him, Article 22 `is intended rather to improve coordination of the judicial function within the Community and to avoid conflicting and contradictory decisions, even where the separate enforcement of each of them is not precluded'; that is to say, `the rationale of the provision is therefore to encourage harmonious judicial decisions and thereby obviate the danger of judgments which conflict with each other, albeit only as regards their reasoning'. (33) An unduly broad interpretation of the requirements of Article 21 would run the risk of confusing related actions with lis alibi pendens. No question has, however, been referred to the Court in this case with regard to the exercise of the discretionary power conferred by Article 22.

31 Moreover, I share the concerns expressed, particularly in the observations of France and the Commission, that a more flexible approach to the application of the condition that the parties must be the same in order for an obligation to decline jurisdiction to arise under Article 21 of the Convention could seriously imperil the right to a fair hearing and, in some cases, even the efficient administration of justice. In the instant case, it is apposite to recall that the principle of Netherlands procedural law which forms the basis for the supposed implicit presence of Drouot in the Netherlands action - at least if the Court were to accept the uncontradicted description furnished by counsel for Drouot at the hearing - would appear to have `slipped onto' the case-file before the Cour d'Appel. (34) As Advocate General Tesauro pointed out in his Opinion in The Tatry, when `reference to the domestic laws of Contracting States [is] rendered necessary by the incompleteness of the rules contained in the Brussels Convention, ... [it] must be conducive to the application of the provisions of the Convention and may not in any circumstances lead to results which conflict with its aims and rationale'. (35) Accordingly, I do not think that the right of Drouot to a fair hearing would be served if Article 21 of the Convention were to be interpreted as imposing an obligation, in circumstances such as those of the present case, on the Cour d'Appel to decline jurisdiction in respect of its claim in the French action when its right to be heard in the Netherlands action would effectively depend on the attitude of Mr Velghe.

32 The conclusion which must, to my mind, be drawn in circumstances such as those of the present case is that no lis alibi pendens for the purposes of Article 21 of the Convention arises.

V - Conclusion

33 In the light of all the foregoing considerations, I recommend that the Court answer the question referred by the French Cour de Cassation as follows:

No lis alibi pendens for the purposes 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, arises where a court of one Contracting State is seised by the insurer of a vessel that has been shipwrecked with an action seeking from the owner and the insurer of the cargo on board partial reimbursement, by way of contribution to the general average, of the refloating costs, when a court of another Contracting State was seised previously by that owner and insurer with an action against the owner of the vessel for a declaration that they were not obliged to contribute to the general average.

(1) - The Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), 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 (OJ 1978 L 304, p. 1) and the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1), hereinafter `the Convention'. Article 21 has been amended by Article 8 of the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (hereinafter `the San Sebastian Convention'; OJ 1989 L 285, p. 1), but the amended version entered into force between France and the Netherlands - the two Contracting States concerned by the legal proceedings brought in the present case - only on 1 February 1991. Although the facts of this case arose in 1990, no changes made by the San Sebastian Convention are material to it.

(2) - The first recital in the preamble to the Convention refers to the desire of the Contracting States `to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals'.

(3) - According to the order for reference, the vessel was owned by Mr Walbrecq and chartered by Mr Velghe. However, it emerged at the oral hearing that Mr Walbrecq, having died in 1981, had actually been replaced as owner of the Sequana by Mr Velghe sometime before the accident occurred. In their written observations Drouot and the Commission submitted that Mr Velghe was also the captain of the barge at the time it sank, and that the barge had in fact been chartered by another company not involved in either of the actions at issue in the main proceedings. This view, which was generally accepted at the hearing, is consistent with the judgment of the Cour d'Appel, which is included in the case-file sent to the Court.

(4) - For convenience, I shall hereinafter refer to this action as `the French action'.

(5) - It appears from Drouot's written observations that the action against GIE was initiated separately on 11 February 1991.

(6) - The nature of the system of general average will be discussed below (see, in particular paragraphs 17 to 19). An average adjuster is a professional who specialises in determining the amounts of the contributions which should be made, respectively, by each of the participants in the venture to which the general average relates.

(7) - In view of the death in 1981 of Mr Walbrecq, the CMI and Protea action may now only concern Mr Velghe and the status of Mr Walbrecq is not material to the reference before the Court.

(8) - This action will for convenience hereinafter be referred to as `the Netherlands action'. When reference is hereinafter made to both actions collectively, they will be described as `the two actions'.

(9) - At the oral hearing, counsel for Drouot explained that, under the procedural rules of the Cour de Cassation, it had not been possible for it to question the finding of the Cour d'Appel regarding its presence through its insured in the Netherlands action.

(10) - The reference was received at the Court on 25 October 1996. The report of the Cour de Cassation's rapporteur, included in the case-file sent to this Court, assists in appreciating the concerns that motivated the reference in the instant case. The report notes that the Court's case-law regarding Article 21 of the Convention requires that it be interpreted autonomously and that this would appear to preclude the application of the French-law principle under which there would be identity of parties if the party opposing the plea of lis alibi pendens were `represented' by another party in allegedly related foreign proceedings. While expressing some doubt as to the precise nature of the principle of Netherlands law relied upon in the judgment of the Cour d'Appel, the report suggests that the presumed presence at issue could satisfy the French-law notion of effective `representation'.

(11) - See, for the English version of the Protocol, OJ 1978 L 304, p. 97.

(12) - It refers to Case 129/83 Zelger v Salinitri [1984] ECR 2397 (hereinafter `Zelger'), Case 144/86 Gubisch Maschinenfabrik v Palumbo [1987] ECR 4861 (hereinafter `Gubisch') and Case C-406/92 The Tatry [1994] ECR I-5439.

(13) - Drouot cites Zelger, paragraph 15, in favour of this contention and alleges that, in French law, it could not, by virtue merely of being the insurer of the Sequana, be considered a party to the Netherlands action.

(14) - It refers especially to paragraph 19 of the Opinion of Advocate General Tesauro in The Tatry, loc. cit.

(15) - At the oral hearing the Commission's agent nevertheless expressed doubts as to whether this initial assessment was correct.

(16) - The term `general average' in the English language, is liable to lead to confusion, since it is quite distinct from the word `average' in its normal sense. In fact, it shares an etymology with the French word `avaries communes', the Dutch `averij grosse' and the German `große Haverei' (see E. Ledocte, Legal Dictionary in Four Languages, Maarten Kluwer, Antwerp, 1982); the word `average' in this context thus means damage, which is the starting point of any general average claim.

(17) - See, for example, Arnould's Law of Marine Insurance and Average, 16th ed., Stevens and Sons, London 1981, Vol. 2, paragraph 916; Ripert, Droit Maritime, quatrième édition, Editions Rousseau et Cie., Paris 1953, Tome III, paragraph 2213 et seq.

(18) - See, according to the case-file, Law No 67-545 of 7 July 1967 concerning incidents at sea (Loi n. 67-545 du 7 juillet 1967 relative aux événements de mer).

(19) - Gubisch, paragraph 11: see also The Tatry, paragraph 30.

(20) - See footnote 10 above regarding the possible position in French law.

(21) - Loc. cit., see paragraphs 13 to 16.

(22) - Loc. cit., paragraph 13.

(23) - Gubisch, paragraph 14. The Court, by oversight, stated, also in paragraph 14, that only `the German version of Article 21 (which refers to: "... Klagen wegen desselben Anspruchs zwischen denselben Parteien anhängig gemacht") does not expressly distinguish between the terms "subject-matter" and "cause of action"' and that, accordingly, `it must be construed in the same manner as the other language versions, all of which make that distinction' (emphasis added). In fact, at least the English and Irish versions of Article 21 of the Convention also make no such distinction; thus, the English version refers to proceedings `involving the same cause of action and between the same parties' while the Irish version refers to `...imeachtaí leis an gcúis chéanna chaingne agus idir na páirtithe céanna' (emphases added). The Danish text, for example, would also appear merely to contain two conditions: `... derhar samme genstand og hviler pa samme grundlag' (emphasis added). However, in paragraph 38 of its judgment in The Tatry, the Court implicitly corrected the slip made in Gubisch by recognising that `the English version of Article 21 does not expressly distinguish between the concepts of "object" and "cause of action"'. Reiterating the principle declared in Gubisch, the Court stated that `that language version must however be construed in the same manner as the majority of the other language versions in which that distinction is made'.

(24) - Gubisch, paragraph 17.

(25) - Ibid., paragraph 18.

(26) - Paragraph 17.

(27) - See paragraphs 29 and 30. The fifth question concerned the alleged identity of the causes of action in the two actions; namely, an action brought by cargo owners in one Contracting State (the Netherlands) in respect of damage caused during transit to their goods and an action previously brought in another Contracting State (the United Kingdom) by the shipowner whereby the latter effectively sought a negative declaration regarding its possible liability for the damage to the cargo. The Court took the view that such causes of action were the same, since the positive and negative terms in which they were couched did not render their object (to wit the determination of liability) different; see, in particular, paragraph 43.

(28) - Ibid., paragraph 31; see also paragraph 14 of the Opinion of Advocate General Tesauro.

(29) - The Tatry, paragraph 32.

(30) - Ibid., paragraph 33 (emphasis added). In the English language, at least, the adjective `identical' refers to a thing that agrees `in every detail' with another thing (see, for example, The Concise Oxford Dictionary, Oxford, 1990, at p. 585).

(31) - The Tatry, paragraph 34 (emphasis added).

(32) - See paragraph 28 of his Opinion.

(33) - Ibid.

(34) - It should perhaps be added, although no criticism of the Cour d'Appel is intended, that there is nothing on the case-file to indicate that its finding in respect of Dutch law was based either on expert evidence or other reliable sources of that law.

(35) - See paragraph 19 of his Opinion.