This was an application brought by the claimant to dismiss and strike out part of the defendant's counterclaim which sought to advance claims in tort based on the alleged wrongful arrest of the Pola Devora in Gibraltar in July 2020. The arrest arose out of a charterparty dispute. The relevant charterparty contained an exclusive English law and forum clause. The claimant's position was that it arrested the vessel on the basis of a Lloyd's List Intelligence report which described the defendant as the beneficial owner of the vessel. The defendant alleged that it was merely the time charterer of the vessel. The claimant released the vessel following provision of a copy of the time charter, but did not concede that the defendant was not the beneficial owner, or that the arrest was wrongful.

The claimant's application was brought under CPR r 11.1 and r 3.4(2). The claimant submitted that the English Court had no jurisdiction to try the defendant’s tort claims and should decline jurisdiction in favour of the Supreme Court of Gibraltar.

Held: The claimant's application is dismissed. This Court has a discretion to exercise its jurisdiction under art 22 of the Brussels Convention 1968, even though it is the Court second seised as between the two sets of related proceedings. In the particular circumstances of this case, including but not limited to the fact that the tort claims come within the scope of a clause conferring jurisdiction on this Court so as to engage art 17 of the Brussels Convention 1968, it is appropriate to exercise this discretion to refuse to decline jurisdiction or to stay the defendant's tort counterclaims.

The defendant's counterclaim for damages in respect of the arrest is advanced on a number of alternative bases, all of them under English law: breach of the Torts (Interference with Goods) Act 1977 (UK), tortious interference with use of the vessel, conversion of the vessel, and a tortious inducement of a breach of contract (ie the time charter of the vessel).

At first blush that is difficult to reconcile with art 6 of the International Convention Relating to the Arrest of Sea-Going Ships 1952 (the Arrest Convention 1952) which provides that: 'All questions whether in any case the claimant is liable in damages for the arrest of a ship or for the costs of the bail or other security furnished to release or prevent the arrest of a ship, shall be determined by the law of the Contracting State in whose jurisdiction the arrest was made or applied for.' Furthermore, the claimant contends that The Evangelismos (1858) 12 Moo PC 352, 14 ER 945 established that it is necessary to prove malice or gross negligence in order to recover damages for wrongful arrest. The counterclaim does not appear to be making any such allegation, as presently drafted. These, however, are all matters to be litigated out in whatever is determined to be the appropriate jurisdiction.

It is common ground that matters of jurisdiction as between this Court and the Supreme Court of Gibraltar are governed by the Brussels Convention 1968, and that this remains the case notwithstanding Brexit. That results from the Civil Jurisdiction and Judgments Act 1982 (Gibraltar) Order 1997 (SI 1997/2602), which applies Sch 1 to the Civil Jurisdiction and Judgments Act 1982 (UK) (ie the Brussels Convention 1968) as if England and Gibraltar had been separate contracting States to the Convention. This is therefore one of the rare cases in which the Court still has to look to the Brussels Convention 1968, rather than any of its successors.

The following provisions of the Arrest Convention are also relevant here:

a. Article 4 provides that: 'A ship may only be arrested under the authority of a Court or of the appropriate judicial authority of the Contracting State in which the arrest is made.' That confers exclusive jurisdiction on the Supreme Court of Gibraltar as regards giving authority to arrest a ship for a maritime claim.

b. Article 6 makes provision, among other things, as to which law is to govern liability in damages for wrongful arrest, namely the law of the jurisdiction where the arrest was made, but does not specify that only the Court with jurisdiction to make the arrest in the first place should determine any claim for consequential damages. That is plainly not the case, as is illustrated for example by The Damianos [1971] 1 Lloyd's Rep 502.

c. Article 7:

i. This gives the Courts where the arrest was made jurisdiction to determine 'the case' upon its merits if the domestic law of the country in which the arrest is made gives jurisdiction to such Courts, or in a number of specified cases (none of which are applicable here). Where the arresting Court does not have jurisdiction over the merits, the 'bail or other security given in accordance with Article 5 to procure the release of the ship shall specifically provide that it is given as security for the satisfaction of any judgment which may eventually be pronounced by a Court having jurisdiction so to decide'.

ii. That latter provision is consistent with the policy behind Article 24 of the Brussels Convention 1968, in allowing protective measures in jurisdictions that do not have jurisdiction over the substantive claim.

iii. Here, the arrest was sought expressly on the footing that the merits of the claims were a matter for the English Court, by virtue of art 17 of the Brussels Convention 1968, and that the arrest was being applied for solely by way of security. The Arrest Convention 1952 does not itself make provision in respect of lis alibi pendens but falls to be read together with the Brussels Convention 1968 in that respect: The Tatry [1999] QB 515.

The effect of these provisions is that the obtaining of security, by way of an arrest, can (by virtue of art 4 of the Arrest Convention 1952) only be done by applying to the Court where the ship sought to be arrested is located (in this case, Gibraltar). However, it does not follow that that Court also has exclusive jurisdiction as to whether the claimant is liable in tort as a consequence of having taken that step in Gibraltar (albeit establishing the wrongfulness of the arrest as a matter of Gibraltarian law is a necessary component in any such cause of action). The Arrest Convention leaves that question open.