Tatry Notes

Tatry (1994)

Facts

In September 1988 a cargo of soya bean oil belonging to a number of owners (hereinafter "the cargo owners") was carried in bulk aboard the vessel Tatry, belonging to a Polish shipping company, Zegluga Polska Spolka Alceyjna - referred to in the order for reference as "the shipowners". The voyage was from Brazil to Rotterdam for part of the cargo and to Hamburg for the rest. The cargo owners complained to the shipowners that in the course of the voyage the cargo was contaminated with diesel or other hydrocarbons.

There were three separate groups of cargo owners who all sued separately.

Proceedings by Ship-owners: The shipowners brought an action before the Arrondissementsrechtbank (District Court), Rotterdam against Groups 1 and 3, with the exception of Phibro, seeking a declaration that they were not liable or not fully liable for the alleged contamination.

Proceedings by Cargo-owners: After an unsuccessful attempt to arrest the Tatry in Hamburg, Group 3 brought an action in rem (hereinafter "Folio 2006") before the High Court of Justice, Queens' s Bench Division, Admiralty Court, against the Tatry and another ship, the Maciej Rataj, whose owners are the same as the owners of the Tatry.

The action instituted by the Cargo owners before English Courts claimed damages for breach of contract while the action in Rotterdam by the shipowners was for a declaratory relief.

Questions

Interpretation of “same parties”

For the purposes of the application of Article 21 of the Brussels Convention 1968 (as amended), where proceedings are brought in a Contracting State which involve the same cause of action as prior proceedings brought in another Contracting State, must the courts of the Contracting State second seised decline jurisdiction

(a) only where there is a complete identity of parties between the two sets of proceedings or

(b) only where all the parties to the proceedings in the courts of the Contracting State second seised are also parties to the proceedings in the courts of the Contracting State first seised or

(c) whenever at least one of the plaintiffs and one of the defendants to the proceedings before the courts of the Contracting State second seised are also parties to the proceedings in the courts of the Contracting State first seised or

(d) whenever the parties in the two sets of proceedings are substantially the same?

Interpretation of “same cause of action”

In relation to the carriage of goods by sea in circumstances where goods are discharged in an allegedly damaged condition, does a claim brought by the cargo owners in a Contracting State in respect of such alleged damage in an action which was commenced in rem against either the carrying vessel or a sister ship thereof pursuant to the United Kingdom' s admiralty jurisdiction involve the same parties and the same cause of action for the purposes of Article 21 of the Brussels Convention 1968 (as amended) as in personam proceedings previously brought in another Contracting State by the ship owner against the cargo owners in respect of such alleged damage if the shipowner acknowledges service and procures the release from arrest of the vessel upon provision of security and thereafter

(a) the admiralty action continues both in rem and in personam or

(b) the admiralty action continues only in personam?

Proceedings for “declaration” and “enforcement”

In relation to the carriage of goods by sea in circumstances where goods are discharged in an allegedly damaged condition, if

(i) the shipowner commences proceedings in a Contracting State which involve a claim for a declaration of non-liability to cargo interests in respect of such alleged damage and

(ii) the cargo claimants subsequently commence the proceedings in another Contracting State in which they claim damages against the shipowner for negligence and/or breach of contract and/or duty in respect of such alleged damage to their cargo,

do the latter proceedings involve the same cause of action as the former proceedings for the purposes of Article 21 of the 1968 Brussels Convention (as amended) so that the courts of the latter Contracting State must decline jurisdiction pursuant to Article 21?

Meaning of “related actions”

For the purposes of Article 22 of the Brussels Convention 1968 (as amended):

(a) Does the third paragraph of Article 22 provide an exclusive definition of 'related proceedings?'

(b) In order for the courts of a Contracting State to decline jurisdiction or to stay their proceedings under Article 22, is it necessary for there to be a risk that if the two sets of proceedings are heard and determined separately, this might lead to legal consequences which are mutually exclusive?

(c) If proceedings are brought in one Contracting State in respect of a claim by one group of cargo owners against a shipowner for damage to their portion of a bulk cargo carried under specified contracts of carriage and if separate proceedings are brought in another Contracting State against the same shipowner based on essentially similar issues of fact and law but by a different cargo owner for damage to its portion of the same bulk cargo carried under separate contracts of carriage on the same terms, do these proceedings, if heard and determined separately, involve the risk of giving rise to legal consequences which are mutually exclusive or are they otherwise related actions for the purposes of Article 22?

Holding

Interpretation of “same parties”

Moreover, as the Advocate General noted in his Opinion (paragraph 14), it follows by implication from that judgment that the question whether the parties are the same 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.

In the light of the wording of Article 21 of the Convention and the objective set out above, that article must be understood as requiring, as a condition of the obligation of the second court seised to...

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