This case involved carriage under straight bills of lading in October-November 2020 of two transformers on the Deo Volente from Naples (Italy) to Schiedam (the Netherlands), and Västerås (Sweden). The Deo Volente was beneficially owned by Deo Volente Seatrade CV, (Hartman Seatrade CV at the time of the carriage), with A, B and C as managing partners, who were later succeeded by Deo Volente Seatrade BV as the sole managing partner.

Amasus, which included both Amasus Shipping BV and Amasus Fleet BV (Amasus Fleet), was involved in the operation of the Deo Volente as the commercial manager. The contract of carriage was concluded by a booking made by Sodimax Srl (Sodimax) with Amasus Fleet, which represented Deo Volente Seatrade CV, and was recorded in a 'fixture recap' for a 'booking note'. The contract was expressly governed by English law. On the bills of lading signed by the master, Getra Power SpA (Getra) was named as the shipper and Amasus Fleet as the carrier. The bill of lading terms included a choice of forum for the 'principal place of business' of the 'Carrier'. After discharge in Rotterdam/Schiedam (the Netherlands) and Västerås (Sweden), Getra sued Amasus for damage to the transformers. In February 2023, Getra arrested the Deo Volente in the port of Imperia (Italy) to secure its claim for damages, after which NorthStandard, the P&I (re)insurer of the Deo Volente, provided a guarantee. Amasus sought a negative declaration of non-liability towards Getra. Getra raised a jurisdictional objection.

Held: The Court is authorised to hear the claims in so far as they concern liability based on the transport of the transformer that was to be delivered in Rotterdam/Schiedam. The Court has no jurisdiction to hear the claims concerning the transport of the transformer that was to be delivered in Västerås.

In May 2023, Getra initiated civil proceedings before the Court in Naples (Italy) claiming compensation for damage to the transformers. This claim was based on both the bills of lading and non-contractual grounds. In Italy, the claim was for compensation based on alleged liability, while in the Netherlands, the claim was for a negative declaration that Amasus and others were not liable. According to established case law, such mirror-image claims must be regarded as claims with the same subject matter and the same cause of action within the meaning of art 29 ff of EU Regulation 2015/2012 (Brussels I Regulation (Recast)) (see CJEC 6 December 1994, C-406/92, Schip en Schade 1996/1 (Tatry/Maciej Rataj) (CMI771) and CJEU 19 December 2013, C-452/12, Schip en Schade 2014/24 (Nipponkoa/Inter-Zuid)).

Since the proceedings in Rotterdam were brought earlier than those in Naples, the latter Court suspended its proceedings on the basis of art 29 ff of Brussels I (Recast), pending the determination by the Court in Rotterdam whether it had jurisdiction. If so, the proceedings in Rotterdam would take precedence.

Italy and the Netherlands are both parties to the Arrest Convention 1952. Article 7 of the Convention lays down jurisdictional rules in respect of the merits of the case where a seagoing vessel has been arrested in a Contracting State. Article 71 of Brussels I (Recast) stipulates that the Regulation does not affect the Conventions to which Member States are parties and which regulate jurisdiction in specific matters. The purpose of this exception is to ensure compliance with the rules of jurisdiction laid down in specific Conventions, as these rules take into account the specific characteristics of the matters to which they relate. The Arrest Convention is such a special Convention.

However, according to established case law of the CJEU, art 71 Brussels I (Recast) must be interpreted as precluding such a special Convention from being interpreted in a way that does not ensure compliance with the objectives and principles underlying that Regulation under conditions at least as favorable as those provided for in it (cp CJEU 19 December 2013, C-452/12, Schip en Schade 2014/24 (Nipponkoa/Inter-Zuid)). It must therefore be examined whether the Arrest Convention meets that criterion and whether its art 7 does indeed confer exclusive jurisdiction.

The interpretation of the provisions of the Arrest Convention must be based on arts 31-33 of the Vienna Convention on the Law of Treaties (the Vienna Convention), which must be considered a codification of current international law regarding the interpretation of treaties. Subject to the provisions of art 32 of the Vienna Convention, recourse may be had to the preparatory works (travaux préparatoires) in order to interpret that treaty.

Neither the text of art 7 of the Arrest Convention, nor its context, nor other provisions of the Convention lead to an interpretation of the provision that the Court within whose jurisdiction the arrest was effected has exclusive jurisdiction to hear the merits of the action. On the contrary, art 7.2 provides a provision for the case where the Court within whose jurisdiction the arrest was effected has no jurisdiction. Moreover, art 7.3 provides a provision for proceedings before another court (or arbitral tribunal). Article 7 of the Convention thus does not confer exclusive jurisdiction on the Court within whose jurisdiction the ship arrest was effected over the merits of the action.

Since art 7 of the Convention does not confer exclusive jurisdiction on the Court in whose jurisdiction the ship arrest was effected, this provision does not impede the jurisdiction of the Rotterdam Court under the jurisdiction rules of Brussels I (Recast).