The Gazette 1985

GAZETTE

SEPTEMBER1985

Article 5(3) provides that in matters relating to tort a defendant may be sued in the place where the harmful event occured. An interesting and important judgement on Article 5(3) is that in case 21/76. 16 The case con- cerned an action brought in Holland against the French defendant in respect of damage caused in Holland by the discharge of waste into the Rhine in France. The Court of Justice held that the expression "where the harmful event occured" in Article 5(3) must be under- stood as being intended to cover both the place where the damage occurred and the place of the events giving rise to it. Thus the plaintiff is given a further choice. Article 5(4) provides that in cases of civil claims for damages based on an act giving rise to criminal proceed- ings a defendant may be sued in the court seized of the criminal proceedings (provided of course that the criminal court is empowered under national law to make civil awards). Article 5(5) provides that as regards a dispute arising out of the operations of a branch or agency or other establishment a defendant may be sued in the place where the branch or agency or other establishment is situate. This exception deals with the case where a company is domiciled in one Contracting State but has a branch or agency in another. In two earlier cases 17 the Court decided that the essential characteristic of all three concepts of branch, agency or other establishment was the fact of being subject to the direction and control of the parent body. And, in a later case 18 it was decided that an independent commercial agent who merely negotiates business and who is basically free to arrange his own work and decide what proportion of his time to

devote to the interests of the undertaking which he agrees to represent and who cannot be prevented from representing competing firms and who merely transmits orders without being involved in their terms or executions does not have the character of a branch, agency or other establishment within the meaning of Article 5(5). Article 5(6) is a new exception introduced by the 1978 Convention whereby a settlor or, trustee or beneficiary may be sued, in his capacity as such, in the State where the trust is domiciled. Article 5(7) was introduced by the 1978 Convention to take account of the particular circumstances of the Admiralty jurisdictions of the Irish and U.K. courts. The strict application of the other rules of jurisdiction would have unreasonably taken away important juris- dictions based on the arrest of vessels or their cargo. Article 5(7) provides that the court under whose authority cargo has been arrested in respect of a salvage will have jurisdiction. Also, special transitional rules are laid down in Article 36 of the 1978 Convention which allow the Irish and Danish courts to exercise special jurisdiction in Admiralty claims. The rules are transitional because it is recommended that Ireland and Denmark ratify the 1952 Convention on the arrest of seagoing vessels. 19 Article 29 of the 1978 Convention adds a provision to the effect that in proceedings involv- ing a dispute between the master and a member of the crew of a ship registered in Denmark or Ireland con- cerning terms of employment the court in question must establish whether the diplomatic or consular officer has been notified. The court must stay the proceedings if the officer has not been notified or if he exercises powers vested in him by a consular convention or, indeed, if he objects to the court exercising jurisdiction.

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