Lloyd's Maritime and Commercial Law Quarterly
THE UNCERTAINTY OF SPECIAL JURISDICTION
Marinari v. Lloyds Bank Plc 1
Mr Marinari, who was domiciled in Italy, had come by a parcel of promissory notes issued by the Negros Oriental province of the Philippines in favour of Zubaidi Trading Co. of Beirut, and having an exchange value of $752 million. When he took them into Lloyds Bank in Manchester, the bank called the police, and the notes were confiscated.2 In due course Marinari brought proceedings in the Italian courts, claiming as damages the value of the confiscated notes.3 He sought to rely on Art. 5(3) of the Brussels Convention.4 This allows a claim in tort to be brought in the place in which the damage (or the act giving rise to it) occurred.5 Marinari argued that the financial loss of which he complained took place in Italy, as a result of conduct which had taken place in England. The Court of Justice ruled in effect that the Italian court did not have jurisdiction.
The court explained that Art. 5(3) had to be given a narrow interpretation, reflecting the expectation of a close connection between the facts of the case and the court seised.6 This was not novel. It also ruled that the damage in question indicated the immediate damage, and not the subsequent feeling or recording of damage which had already occurred elsewhere.7 As a result it appears that the relevant damage occurred in England, where the notes were confiscated; and that Marinari will not be entitled to sue in Italy, where he is domiciled and keeps his books, and where, perhaps, the damage was sustained and
1. Judgment of 19 September 1995. The reference was made from the Italian courts.
2. Marinari’s criminal prosecution in England resulted in his acquittal, but not in the return of the notes.
3. He also claimed for other alleged losses resulting from the treatment he claimed to have received at the hands of the bank. If any separate issues relate to these, they are not pursued here.
4. Brussels Convention on Jurisdiction and the Enforcement of Foreign Judgments in Civil and Commercial Matters: Civil Jurisdiction and Judgments Act 1982, Sched. 1.
5. This being the interpretation given by the court in Bier v. Mines de Potasse d’Alsace [1976] ECR 1735 to the words “place where the harmful event occurred” of Art. 5(3). It was the view of the Advocate-General, Mr Darmon (echoing his earlier view in Dumez France v. Hersische Landesbank (Helaba) (Case C–220/88 [1990] I ECR 49, 66) that there is apt to be confusion between the place where damage occurs (which is jurisdictionally significant) and the place where it is suffered (which is not). The court did not, in terms at least, adopt this analysis. That is a pity.
6. Paras 10, 13. Paragraph 13 would even suggest that a plaintiff falling squarely within the letter of Art. 5(3) may be deprived of his choice if the court actually has no close connection with the facts of the case. This would be a most remarkable acceptance of the plea of forum non conveniens: remarkable, because the court expressly refused to countenance such an argument in relation to Art. 5(1) (as to which, see infra) in Custom Made Commercial Ltd. v. Stawa Metallbau GmbH (Case C–288/92) [1994] I ECR 2913. Either the court did not intend para. 13 of its judgment to be taken literally, or it believes that Art. 5(3), if properly construed, will never ascribe jurisdiction to a court lacking a strong connection to a given case. If the latter, it may simply be observed that Art. 5(1), properly construed, does do just that. A defendant has therefore been given at least some encouragement to make forum non conveniens arguments within the context of Art. 5(3).
7. Cf. fn. 5, supra.
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