Keywords
Summary

Keywords

Convention on Jurisdiction and the Enforcement of Judgments - Lis alibi pendens - Proceedings between the `same parties' - Definition - Whether insurer and its insured are to be treated as the same party - Condition - Litigation concerning the obligation of the owner of the cargo of a vessel to contribute to the general average following the foundering of the vessel

(Convention of 27 September 1968, Art. 21)

Summary

An insurer and its insured must be considered to be one and the same party for the purposes of the application of Article 21 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, where there is such a degree of identity between their interests that a judgment delivered against one of them would have the force of res judicata as against the other. On the other hand, application of the said article cannot have the effect of precluding the insurer and its insured, where their interests diverge, from asserting their respective interests before the courts as against the other parties concerned.

Thus, Article 21 of the Convention is not applicable in the case of two actions for contribution to general average, one brought by the insurer of the hull of a vessel which has foundered against the owner and the insurer of the cargo which the vessel was carrying when it sank, the other brought by the latter two parties against the owner and the charterer of the vessel, unless it is established that, with regard to the subject-matter of the two disputes, the interests of the insurer of the hull of the vessel are identical to and indissociable from those of its insured, the owner and the charterer of that vessel.