Lloyd's Maritime and Commercial Law Quarterly
COMING TO TERMS WITH THE BRUSSELS JURISDICTION AND JUDGMENTS CONVENTION
The Po
The facts of The Po
1 were so simple as to be commonplace. Two ships, the Po and the Bowditch, were anchored in the harbour of Rio de Janeiro. The Po dragged her anchor and collided with the Bowditch. Some time later, the Po called at Southampton and an Admiralty writ in rem was served on her. In order to prevent her arrest, the vessel’s P. & I. Club put up security.
On these facts, it might be thought that there could be no question of the English courts’ jurisdiction to hear the action being challenged, though an application for a stay on grounds of forum non conveniens might be made.2 This assumption, however, fails to take account of the 1968 Brussels Jurisdiction and Judgments Convention.3 It so happened that the owners of the Po were domiciled (in the Convention sense)4 in Italy (a Contracting State) and this brought the Convention into play. In a previous case, The Deichland,5 the Court of Appeal had held that the Convention applies to Admiralty actions in rem. In that case, the disponent owners of the vessel in question were domiciled in Germany. The claim was for damage to cargo and an Admiralty writ in rem was served on the vessel in an English port. Security was given to avoid arrest. The Court of Appeal held that the Convention precluded the English courts from taking jurisdiction: the action had to be brought in Germany. Did the same result ensue in The Pol
A word or two should be said about the way the Jurisdiction and Judgments Convention affects the jurisdiction of English courts.6 The Convention applies only where the subject-matter of the action falls within its scope. This is defined in Art. 1 as being “civil and commercial matters”. It does not matter what the nature is of the court or tribunal hearing the case. Certain matters are excluded from its scope, but none of these is relevant to maritime proceedings.7 With regard to proceedings within its scope, the Convention lays down jurisdictional rules which are binding on all English courts. Except in certain cases,8 however, these rules apply only where the defendant is domiciled (in the Convention sense)9 in another Contracting State. The basic jurisdictional rule, laid down in Art. 2, is that a defendant must be sued in the courts of his domicile. This gives the English courts jurisdiction whenever the
2. Such an application was made. It was dismissed.
3. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. For the amended text of the Convention, see the Civil Jurisdiction and Judgments Act 1982, Sched. 1.
4. See infra, fn. 9.
5. [1990] 1 Q.B. 361; [1989] 2 Lloyd’s Rep. 361 (C.A.); reversing
[1988] 2 Lloyd’s Rep. 454 (Sheen, J.).
6. For a more detailed discussion, see Hartley: “The Effect of the 1968 Brussels Judgments Convention on Admiralty Actions in rem” (1989) 105 L.Q.R. 640.
7. Bankruptcy and arbitration are the only such matters that might be even remotely relevant.
8. E.g., where Art. 16 (exclusive jurisdiction), Art. 17 (jurisdiction agreements) or Art. 21 (lis alibi pendens) is applicable.
9. See the Civil Jurisdiction and Judgments Act 1982, ss. 41 and 42. In the case of individuals, domicile in the Convention sense is close to habitual residence; a corporation is domiciled both where it is incorporated and where it has its central management and control.
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