This was an appeal in cassation from the judgment of the Douai Court of Appeal, 6 December 2012. On 1 May 2008, off Dunkirk, the sailboat El-Delphin, flying the flag of Luxembourg and belonging to X, collided with the sailboat Ultreia, flying the French flag and owned by Y. Having compensated Y for the damage caused by the collision, Pantaenius SAM and its co-insurers claimed by way of subrogation the payment of the sums paid to X and his insurer, Generali Versicherung AG. The Court refused to accept jurisdiction on the basis that it was incompetent to hear the claim.

Pantaenius SAM and the co-insurers of Y criticised the Court of Appeal judgment for having accepted this objection of incompetence on the grounds that:

1) under art 3.3 of the International Convention for the Unification of Certain Rules Relating to Civil Jurisdiction in Collision Matters 1952 (the Collision (Civil Jurisdiction) Convention 1952), in 'the case of a collision or collisions in which two or more vessels are involved nothing in this Convention shall prevent any Court seized of an action by reason of the provisions of this Convention, from exercising jurisdiction under its national laws in further actions arising out of the same incident'. Since at least two ships were involved in this collision, the referral to the tribunal authorizes the latter to apply its national competence criteria. The Court of Appeal, in deciding that art 3.3 of the Convention only applied in the event of multiple ships involved in the collision, implicitly when at least three vessels are involved in the collision, and that the mere seizure of a national court did not authorize the latter to apply its national criteria of jurisdiction, violated art 3.3 of the Convention.

2) under art 1.1.b of the Convention, an 'action for collision occurring between seagoing vessels, or between seagoing vessels and inland navigation craft, can only be introduced ... before the Court of the place where arrest has been effected of the defendant ship or of any other ship belonging to the defendant which can be lawfully arrested, or where arrest could have been effected and bail or other security has been furnished'. By confining itself to affirming, in order to exclude the jurisdiction of the Tribunal de Grande Instance of Dunkirk, that no attachment had been made and that no surety or guarantee had been given, without seeking, as it was invited to do, if the court of the place where the El-Delphin could have been seized was the Tribunal de Grande Instance of Dunkirk, the Court of Appeal deprived its decision of a legal basis with regard to article 1.1.b of the Convention.

3) under art 1.1.c of the Convention, an action for collision can be brought 'before the Court of the place of collision when the collision has occurred within the limits of a port or in inland waters'. By deciding to set aside the jurisdiction of the Dunkirk Tribunal de Grande Instance on the basis that the collision did not occur in ports and roadsteads, nor in internal waters but in French territorial waters, the Court was not competent to hear the dispute, although the consequences of a collision occurring in French territorial waters fall within the jurisdiction of the French courts, the Court of Appeal violated art 1.1.c of the Convention.

Held: Appeal dismissed.

Having noted that the parties to the dispute were not all French nationals and that the ships involved in the collision flew the flags of two States Parties to the Collision (Civil Jurisdiction) Convention 1952, the Court of Appeal correctly deduced that, in order to determine the competent Court, this Convention alone should be consulted, in application of the provisions combined with its art 8 and art 71.1 of Regulation (EC) No 44/2001 of 22 December 2000 concerning, in particular, judicial jurisdiction in civil and commercial matters, which reserves its execution between Member States of the European Union. Far from having violated art 3.3 of the Convention, the Court of Appeal interpreted it correctly by stating that this text has neither the object nor the effect of authorising a court seised other than in the cases exhaustively listed in art 1 of the Convention to retain jurisdiction with regard to the criteria of the law of the forum.

Under art 1.1.b of the Convention, the conditions of application of which are cumulative, the jurisdiction of the court of the place where the arrest of the defendant vessel could have been carried out, in the absence of having been authorised to do so, is only founded if, in that place, the defendant has given a surety or other guarantee. Having noted that no seizure had been made nor any bond or other guarantee given, the Court of Appeal did not have to investigate whether the seizure of the vessel El-Delphin could have taken place within the jurisdiction of the Dunkirk Tribunal de Grande Instance.

Finally, it follows from art 1.1.c of the Convention that the place of collision is a criterion conferring jurisdiction only when it is situated in ports, roadsteads or inland waters. Article 8.1 of UNCLOS, which codifies international custom in the matter, distinguishes the internal waters of a State from its adjacent territorial sea separated by its baseline. Having noted that collision did not occur in internal waters but 'at most' in French 'territorial waters' the Court of Appeal rightly rejected the head of jurisdiction based on the place of collision.