On 25 March 1987, the plaintiffs' ship, the Arco Humber, collided with the defendants' ship, the Linda, while navigating in fog in the Scheur Channel off the coast of Belgium. On 14 April 1987, the defendants arrested the Arco Humber at Flushing in England. Security was provided and the vessel was released from arrest on the same day. On 16 April 1987, the defendants commenced proceedings in the District Court of Middelburg, Netherlands, claiming damages from the owners of Arco Humber. It was accepted by the plaintiffs that the Middelburg Court was seised of jurisdiction that day.

On 18 May 1987, the plaintiffs issued a writ in rem against the Linda. The writ was served upon the Linda in England, and the vessel was arrested. The defendants put up security, and the Linda was released. Even though the English action commenced in rem, the defendants acknowledged service of the writ, and therefore the action became an action in rem and in personam.

The defendants submitted that the court should make an order declining jurisdiction in favour of the Dutch Court, and that all subsequent proceedings be set aside. Alternatively, all further proceedings in the English action should be stayed. The defendants based their argument on arts 21 and 22 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (the 1968 Convention) which was domestically enacted by s 2 of the Civil Jurisdiction and Judgments Act 1982 (UK).

Held: Court must decline jurisdiction.

The defendants argued that art 21 of the 1968 Convention must be applied because: 1) the English and Dutch proceedings involve the same cause of action; 2) both proceedings involve the same parties; and 3) the Dutch Court was the first seised.

The plaintiffs relied on art 57 of the 1968 Convention to argue that if the Court were to interpret the 1968 Convention in the manner submitted by the defendants, it would ‘affect’ the Arrest Convention 1952, because it would prevent the Court from assuming jurisdiction under the Arrest Convention.

The Court explained that the Arrest Convention sets out several claims designated as 'maritime claims'. It also stipulates that a ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any of the Contracting States in respect of any maritime claim, but not in respect of any other claim. Article 7 of the Convention further states that the courts of the country in which the arrest was made shall have jurisdiction to determine the case on its merits if the domestic law of the country grants jurisdiction to such courts. The effect of this provision is that owners of ships may be sued in a country where they are not domiciled but where the ship was arrested.

However, the Court also noted that art 57 of the 1968 Convention makes it clear that the jurisdiction granted to a court in accordance with the Arrest Convention is not affected by the 1968 Convention. The general provisions of the 1968 Convention yield to the specific provisions of the Arrest Convention.

The Court rejected the plaintiffs' contention that pursuant to art 57 of the 1968 Convention, arts 21 and 22 of that Convention do not apply because jurisdiction was founded upon a statute based on the Arrest Convention. The Court held that the Arrest Convention does not contain any provisions which set out what should happen if two actions arising out of the same incident are commenced in different countries. As such, arts 21 and 22 of the 1968 Convention do not affect the Arrest Convention, and this Court must give effect to one or other of those articles.

Finally, the Court considered whether art 21 did apply, and in doing so, had to answer two questions. The first question was whether the two sets of proceedings involved the same cause of action, and the second was whether the proceedings in both countries involved the same parties. First, the Court found that the proceedings commenced by the defendants in the Netherlands involved the same cause of action as that involved in this case. Secondly, it found that both sets of proceedings were between the same parties. Therefore, art 21 applies, and the Court must give effect to it by declining jurisdiction.