#5041 - Reunion Europenne - Conflict of Laws BCL

Reunion Europenne

Facts

Those questions arose in proceedings brought by nine insurance companies and, as lead insurer, the company Réunion Européenne (hereinafter 'the insurers'), which have been subrogated to the rights of the company Brambi Fruits (hereinafter 'Brambi'), whose registered office is in Rungis (France), against Spliethoff's Bevrachtingskantoor BV, whose registered office is in Amsterdam (Netherlands), and the Master of the vessel Alblasgracht V002, residing in the Netherlands, following the discovery of damage to a cargo of 5 199 cartons of pears delivered to Brambi, in the carriage of which the defendants were involved.

The action was brought relying on Art. 5(1) for the breach of a contractual obligation or in the alternative, under Art. 5(3).

Question

May a defendant domiciled in the territory of a Contracting State be brought, in another Contracting State, before the court hearing an action against a co-defendant not domiciled in the territory of any Contracting State, on the ground that the dispute is indivisible, rather than merely displaying a connection?

Holding

Place where the damage occurred

The consignee had entered into a contract under which goods were first transported by sea and then by land. The claim here is against the sea-carrier and the question is where the damage occurred.

It follows that a consignee of goods who, on completion of a transport operation by sea and then by land, finds that the goods delivered to him are damaged may bring proceedings against the person whom he regards as the actual maritime carrier either before the courts for the place where the damage occurred or the courts for the place of the event giving rise to it.

As the Advocate General emphasises in points 54 to 56 of his Opinion, in an international transport operation of the kind at issue in the main proceedings the place where the event giving rise to the damage occurred may be difficult or indeed impossible to determine. In such circumstances, it will be for the consignee of the damaged goods to bring the actual maritime carrier before the courts for the place where the damage occurred. It must be pointed out in that regard that, in an international transport operation of the kind at issue in the main proceedings, the place where the damage occurred cannot be either the place of final delivery, which, as the Commission rightly pointed out, can be changed in mid-voyage, or the place where the damage was ascertained.

To allow the consignee to bring the actual maritime carrier before the courts for the place of final delivery or before those for the place where the damage was ascertained would in most cases mean attributing jurisdiction to the courts for the place of the plaintiff's domicile.

In those circumstances, the place where the damage arose in the case of an international transport operation of the kind at issue in the main proceedings can only be the place where the actual maritime carrier was to deliver the goods.

The answer to be given to the third question must therefore be that the place where the consignee of the goods, on completion of a transport operation by sea and then by land, merely discovered the existence of the damage to the goods delivered to him cannot serve to determine the 'place where the harmful event occurred' within the meaning of Article 5(3) of the Convention, as interpreted by the Court.

Application of Art. 6(1) – at least one defendant must be domiciled in the State

Those rules include, in Article 6(1) of the Convention, the rule that a person may also be sued, 'where he is one of a number of defendants, in the courts for the place where any one of them is domiciled'.

As is clear from the very wording of...