Lloyd's Maritime and Commercial Law Quarterly
THE BRUSSELS CONVENTION TAMES THE ARREST CONVENTION
The Tatry
The judgment of the European Court of Justice in The Tatry
1 raises a number of issues of importance for commercial litigators. A cargo of soya bean oil belonging to various owners had been carried by the Polish ship Tatry. Upon discharge it had been found to be contaminated. Rightly sensing trouble ahead, the shipowners smartly launched proceedings in Rotterdam for a declaration that they were not liable for the contamination. The defendants in the Rotterdam proceedings were some, but not all,2 of the cargo owners. Months afterwards, two actions were commenced in England. Some among the cargo owners defending the Dutch proceedings arrested the Maciej Rataj (sister ship to the Tatry) at Liverpool, serving on her a writ commencing proceedings3 in the Admiralty Court. Separately,4 cargo owners not involved in the Dutch proceedings commenced an identical action against the Maciej Rataj.5 The shipowners put up a guarantee to secure her release but, finding themselves defendants in the English proceedings, objected to the jurisdiction of the Admiralty Court. They pointed to the earlier Dutch proceedings, praying in aid the Brussels Convention on Jurisdiction and the Enforcement of Judgments 1968, Arts 21 and 22.6 The Court of Appeal referred various questions arising out of this untidy state of affairs to the European Court of Justice.
The issues for the court were five7 in number. First, the proceedings in the Admiralty Court had been commenced upon the arrest of a ship under the Arrest Convention.8 Though the shipowners had commenced the Dutch proceedings well before the Admiralty Court action, the Brussels Convention, Art. 57, contained the self-denying ordinance that
1. The owners of the cargo lately laden on board the ship Tatry v. The owners of the ship Maciej Rataj (Case C–406/92) [1995] 1 Lloyd’s Rep. 302. The reference from the Court of Appeal (sub nom. The Maciej Rataj) was reported at [1992] 2 Lloyd’s Rep. 552. See also Hartley, “The Effect of the 1968 Brussels Judgments Convention on Admiralty Actions in Rem” (1989) 105 L.Q.R. 640.
2. This was unfortunate for the shipowners, as it spoiled their victory. As to those who were sued, some were domiciled in Holland, and were so liable to the jurisdiction of the Dutch courts by reason of the Brussels Convention, Art. 2, and the others were brought in as co-defendants by reason of Art. 6(1).
3. Claiming for damage to the cargo.
4. But on the same day.
5. There were additional sets of proceedings, described in the judgment, paras 6–15, but they are not material to the present Comment.
6. Which deal with lis alibi pendens.
7. They have been renumbered and reordered in this Comment.
8. Of 10 May 1952. The Convention on the Arrest of Sea-going Ships, being signed at Brussels, is also referred to in some contexts as the Brussels Convention. For obvious reasons, that terminology is avoided here.
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