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.

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

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

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.

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.

INDEPENDENT

BALCOMBES

The Loss Assessors

Specialising in assessing damage for

claimants:-

62 MERRION SQUARE

DUBLIN 2

Telephone: (01)604577

INSURANCE CLAIMS -

THEFT, FIRE or FLOOD etc.

MALICIOUS INJURY CLAIMS

Telex: 91631

THIRD PARTY CLAIMS

DON'T SETTLE FOR

LESS!

CONSEQUENTIAL LOSS CLAIMS

MARINE CLAIMS -

HULL, MACHINERY, CARGO

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