Lloyd's Maritime and Commercial Law Quarterly
LIS ALIBI PENDENS UNDER THE CMR
Merzario
v. Leitner
At the outset of his judgment in Andrea Merzario Ltd
v. Internationale Spedition Leitner Gesellschaft GmbH,
1
Rix, L.J., observed that the Convention for the International Carriage of Goods (“CMR") was “notoriously difficult” to interpret. Rix, L.J., and his brethren2
then went on to discuss the doctrine of lis alibi pendens
as codified in CMR, Art. 31(2). Regrettably, the Court of Appeal’s decision does little to reduce the CMR’s notorious difficulty.
A. Background
Andrea Merzario Ltd. (“Merzario”) sued Internationale Spedition Leitner Gesellschaft GmbH (“Leitner”) in the English Commercial Court for damages under an international contract for the carriage of goods. In turn, Leitner sued Merzario in Austria seeking a negative declaration of non-liability. Leitner’s form of claim (Klageschrift)
was filed on 16 July 1999. Before the action was served on the defendant, the Austrian Supreme Court (Oberster Gerichtshof)
was called upon to designate the proper venue within Austria and it was decided that the Commercial Court of Vienna should hear the case. Service on Merzario was effected as late as 22 December 1999. Merzario’s action in England was filed on 15 October and served on Leitner on 21 October 1999.
On appeal, it was no longer disputed that both the English and the Austrian courts were competent to hear the case under CMR, Art. 31(1)(b). Leitner sought the dismissal of the English action pursuant to CMR, Art. 31(2). According to that provision, “no new action shall be started between the same parties on the same grounds” as long as “an action is pending before a court or tribunal competent” under Art. 31(1). The Court of Appeal had to decide whether the Austrian action was already “pending” for the purposes of Art. 31(2) when Merzario commenced its action in England and whether Leitner’s Austrian action could give rise to the defence of lis alibi pendens
under CMR, Art. 31(2), even
1. [2001] EWCA Civ. 61; [2001] 1 Lloyd’s Rep. 490, [para. 1].
2. Sir Andrew Morritt, V.-C, and Chadwick, L.J.
CASE AND COMMENT
461