Lloyd's Maritime and Commercial Law Quarterly
MARITIME JURISDICTION AGREEMENTS IN THE EU
The Bergen
In 1968 the Member States of the then EEC entered into a Convention “with a view to securing for the benefit of their nationals the simplification of formalities governing the reciprocal recognition and enforcement of judgments …”1 in accordance with the Treaty of Rome, Art. 220. The Convention was quite a novel instrument, since for the first time rules on direct jurisdiction as well as rules on recognition and enforcement of judgments were dealt with on a major, multilateral scale. The Brussels Convention2 must be seen as the overall applicable Convention on these issues in the EU; but at the same time several other Conventions hold specific rules on similar matters. Rival Conventions are thus in existence, and rules governing the inevitable collisions between them are necessary. The issue of collision is covered by the Brussels Convention, Art. 57, which reads:3
This Convention shall not affect any conventions to which the Contracting States are or will be parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments.
The Arrest Convention4 is a Convention on a “particular” matter, the practical importance of which is obvious in maritime litigation.5 The application of that Convention within the scope of the Brussels Convention in relation to exclusive jurisdiction will be discussed in the light of Clarke, J.’s judgment in The Bergen.6
1. The Jenard Report OJ 1979 C.59/3.
2. The Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968, given effect in the Civil Jurisdiction and Judgments Act 1982.
3. See the Schlosser Report, OJ 1979 C. 59/139, 140: “The 1968 Convention contains the rules generally applicable in all Member States … In so far as a special convention does not contain rules covering a particular matter the 1968 Convention applies. This is also the case where the special convention includes rules of jurisdiction which do not altogether fit the inter-connecting provisions of the various parts of the 1968 Convention …”
4. The International Convention on the Arrest of Sea-Going Vessels 1952.
5. The Arrest Convention is one among numerous other Conventions governing jurisdictional matters etc. relating to maritime litigation. They include the Collision Convention 1952 and the Convention on Penal Jurisdiction in Matters of Collision 1952. The Hague Rules 1924, Art. II has, in some States, been seen as a means of setting aside jurisdiction or choice of law clauses, insofar as they lessen the liability put upon the carrier by the Hague Rules. The Athens Convention 1974 (“PAL 1974”) with Protocols, Art. 17, gives rules on exclusive jurisdiction and invalidates forum agreements, entered into before the incident. The CLC 1969, Art. IX as amended by the CLC Protocol 1992, Art. 8, gives rules on exclusive jurisdiction, and CLC 1969, Art. X deals with recognition and enforceability. The Hamburg Rules, Art. 21 gives rules regarding both direct jurisdiction and jurisdiction clauses. In Austria the Hamburg Rules entered into force on 1 August 1994, and the Lugano Convention on 1 September 1996. Consequently, if Austrian law applies to a contract of carriage of general cargo, the Hamburg Rules will prevail.
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