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Language of document : ECLI:EU:C:1998:509

JUDGMENT OF THE COURT (Third Chamber)

27 October 1998 (1)

(Brussels Convention Interpretation of Articles 5(1) and (3) and 6 Claim forcompensation by the consignee or insurer of the goods on the basis of the bill oflading against a defendant who did not issue the bill of lading but is regarded bythe plaintiff as the actual maritime carrier)

In Case C-51/97,

REFERENCE to the Court by the Cour de Cassation (France), under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of theConvention of 27 September 1968 on jurisdiction and the enforcement ofjudgments in civil and commercial matters, for a preliminary ruling in theproceedings pending before that court between

Réunion Européenne SA and Others

and

Spliethoff's Bevrachtingskantoor BV,

and the Master of the vessel Alblasgracht V002,

on the interpretation of Articles 5(1) and (3) and 6 of the said Convention of 27September 1968 (OJ 1975 L 204, p. 28), as amended by the Convention of 9October 1978 on the Accession of the Kingdom of Denmark, Ireland and theUnited Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and amended text p. 77), by the Convention of 25 October 1982 on the Accession

of the Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention of 26 May1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ1989 L 285, p. 1),

THE COURT (Third Chamber),

composed of: J.-P. Puissochet, President of the Chamber, J.C. Moitinho de Almeida(Rapporteur) and C. Gulmann, Judges,

Advocate General: G. Cosmas,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

Spliethoff's Bevrachtingskantoor BV and the Master of the AlblasgrachtV002, by D. Le Prado, of the Paris Bar,

the French Government, by K. Rispal-Bellanger, Head of Sub-directoratein the Legal Directorate, Ministry of Foreign Affairs, and J.-M. Belorgey,Chargé de Mission in the same Directorate, acting as Agents,

the German Government, by P. Gass, Ministerialdirigent in the FederalJustice Ministry, acting as Agent,

the Commission of the European Communities, by J.L. Iglesias, LegalAdviser, acting as Agent, assisted by H. Lehman, of the Paris Bar,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 5 February1998,

gives the following

Judgment

1.

By judgment of 28 January 1997, received at the Court on 7 February 1997, theCour de Cassation (Court of Cassation) referred to the Court for a preliminaryruling under the Protocol of 3 June 1971 on the interpretation by the Court ofJustice of the Convention of 27 September 1968 on jurisdiction and theenforcement of judgments in civil and commercial matters four questions on the

interpretation of Articles 5(1) and (3) and 6 of that convention (OJ 1975 L 204, p.28), as amended by the Convention of 9 October 1978 on the Accession of theKingdom of Denmark, Ireland and the United Kingdom of Great Britain andNorthern Ireland (OJ 1978 L 304, p. 1 and amended text p. 77), by theConvention of 25 October 1982 on the Accession of the Hellenic Republic (OJ1982 L 388, p. 1) and by the Convention of 26 May 1989 on the Accession of theKingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1).

2.

Those questions arose in proceedings brought by nine insurance companies and, aslead insurer, the company Réunion Européenne (hereinafter 'the insurers), whichhave been subrogated to the rights of the company Brambi Fruits (hereinafter'Brambi), whose registered office is in Rungis (France), against Spliethoff'sBevrachtingskantoor BV, whose registered office is in Amsterdam (Netherlands),and the Master of the vessel Alblasgracht V002, residing in the Netherlands,following the discovery of damage to a cargo of 5 199 cartons of pears deliveredto Brambi, in the carriage of which the defendants were involved.

The Convention

3.

The first paragraph of Article 2 of the Convention provides:

'Subject to the provisions of this Convention, persons domiciled in a ContractingState shall, whatever their nationality, be sued in the courts of that State.

4.

The first paragraph of Article 3 provides:

'Persons domiciled in a Contracting State may be sued in the courts of anotherContracting State only by virtue of the rules set out in Sections 2 to 6 of this Title.

5.

According to Article 5 of the Convention,

'[A] person domiciled in a Contracting State may, in another Contracting State, besued:

1. in matters relating to a contract, in the courts for the place of performanceof the obligation in question ...

...

3. in matters relating to tort, delict or quasi-delict, in the courts for the placewhere the harmful event occurred;

...

6.

Article 6(1) of the Convention adds that where such a person is one of a numberof defendants, he may also be sued in the courts for the place where any one ofthem is domiciled.

7.

Finally, Article 22 provides:

'Where related actions are brought in the courts of different Contracting States,any court other than the court first seised may, while the actions are pending atfirst instance, stay its proceedings.

The main proceedings

8.

The goods at issue in the main proceedings were carried by sea, in eightrefrigerated containers, from Melbourne (Australia) to Rotterdam (Netherlands)aboard the vessel Alblasgracht V002 under a bearer bill of lading issued on 8 May1992 in Sydney, Australia, by Refrigerated Container Carriers PTY Ltd (hereinafter'RCC), whose registered office is in Sydney, then by road under an internationalconsignment note, to Rungis in France, where Brambi discovered the damage. Thefruit had ripened prematurely owing to a breakdown in the cooling system.

9.

The insurers paid compensation for the damage suffered by Brambi. Having beensubrogated to that company's rights as a result of that payment, they broughtproceedings to recoup their loss against RCC on whose headed paper the bill oflading had been issued for the sea voyage, against Spliethoff's BevrachtingskantoorBV, which actually carried the goods by sea despite not being mentioned on the billof lading, and, finally, against the Master of the vessel Alblasgracht V002, asrepresentative of the owners and charterers of that vessel, before the Tribunal deCommerce (Commercial Court), Créteil, in whose jurisdiction Rungis is situated.

10.

By judgment of 17 May 1994 the Tribunal de Commerce, Créteil, declared that ithad jurisdiction as regards RCC, on the basis that the goods were to be deliveredto Brambi in Rungis. However, it declined jurisdiction under Article 5(1) of theConvention as regards Spliethoff's Bevrachtingskantoor BV and the Master of thevessel Alblasgracht V002, taking the view that the operation did not constitute athrough transport operation from Melbourne to Rungis since an internationalconsignment note had been drawn up for the carriage of the goods fromRotterdam to Rungis. The Tribunal de Commerce, Créteil, therefore consideredthat it should decline jurisdiction in the proceedings brought by the insurers againstSpliethoff's Bevrachtingskantoor BV and the Master of the vessel Alblasgracht V002in favour of the courts of Rotterdam, Rotterdam being the place of performanceof the obligation within the meaning of Article 5(1) of the Convention, or those ofAmsterdam or of Sydney pursuant to Article 6(1) of the Convention, according towhich a person who is one of a number of defendants may be sued before thecourts for the place where any one of them is domiciled.

11.

The Cour d'Appel (Court of Appeal), Paris, confirmed, by judgment of 16November 1994, that the Tribunal de Commerce, Créteil, lacked internationaljurisdiction as regards Spliethoff's Bevrachtingskantoor BV and the Master of thevessel Alblasgracht V002, whereupon the insurers appealed to the Cour deCassation, claiming that it had not been established that Brambi had concluded anagreement with those defendants and that the Cour d'Appel could not thereforeapply Article 5(1) of the Convention to them. According to the insurers, the Courd'Appel should have applied Article 5(3) of the Convention concerning jurisdictionin matters relating to tort, delict or quasi-delict.

12.

In the alternative, the insurers claimed that the dispute was indivisible since RCC,as well as both Spliethoff's Bevrachtingskantoor BV and the Master of the vesselAlblasgracht V002, had been involved in the same transport operation. TheTribunal de Commerce, Créteil, having accepted jurisdiction for the proceedingsagainst RCC, should have done so for the proceedings against the other twodefendants.

13.

Considering that the decision to be given depended on an interpretation of theConvention, the Cour de Cassation stayed proceedings pending a ruling from theCourt of Justice on the following questions:

1. Is an action by which the consignee of goods found to be damaged oncompletion of a transport operation by sea and then by land, or by whichhis insurer who has been subrogated to his rights after compensating him,seeks redress for the damage suffered, relying on the bill of lading coveringthe maritime transport, not against the person who issued that document onhis headed paper but against the person whom the plaintiff considered tobe the actual maritime carrier, based on the contract of transport and doesit, for that or any other reason, fall within the scope of matters relating tocontract within the meaning of Article 5(1) of the Convention?

2. If the foregoing question is answered in the negative, is the matter onerelating to tort, delict or quasi-delict within the meaning of Article 5(3) ofthe Convention or is it appropriate to have recourse to the principle laiddown in Article 2 of the Convention that the courts of the State in whoseterritory the defendant is domiciled have jurisdiction?

3. In the event that the matter is to be regarded as one relating to tort, delictor quasi-delict, may the place where the consignee, after completion of themaritime transport operation and then the final overland transportoperation, merely discovered that the goods delivered to him were damaged,constitute and if so under what conditions the place of occurrence of thedamage which, according to the judgment of the Court of Justice of 30November 1976 in Case 21/76 Bier v Mines de Potasse d'Alsace [1976] ECR

1735, may be the place of the event giving rise to the damage within themeaning of Article 5(3) of the Convention?

4. May a defendant domiciled in the territory of a Contracting State bebrought, in another Contracting State, before the court hearing an actionagainst a co-defendant not domiciled in the territory of any ContractingState, on the ground that the dispute is indivisible, rather than merelydisplaying a connection?

The first and second questions

14.

According to Spliethoff's Bevrachtingskantoor BV and the Master of theAlblasgracht V002, the dispute is a matter relating to a contract within the meaningof Article 5(1) of the Convention since the action against them is based on the billof lading, the document containing the transport contract.

15.

It must be pointed out that, according to settled case-law (Case 34/82 Peters vZNAV [1983] ECR 987, paragraphs 9 and 10, Case 9/87 Arcado v Haviland [1988]ECR 1539, paragraphs 10 and 11, and Case C-26/91 Handte v Traitements Mécano-Chimiques des Surfaces [1992] ECR I-3967, paragraph 10), the phrase 'matterrelating to a contract in Article 5(1) of the Convention is to be interpretedindependently, having regard primarily to the objectives and general scheme of theConvention, in order to ensure that it is applied uniformly in all the ContractingStates; that phrase cannot therefore be taken to refer to how the legal relationshipin question before the national court is classified by the relevant national law.

16.

It is also settled case-law that, under the system of the Convention, the generalprinciple is that the courts of the Contracting State in which the defendant isdomiciled are to have jurisdiction and that it is only by way of derogation from thatprinciple that the Convention provides for cases, which are exhaustively listed, inwhich the defendant may or must, depending on the case, be sued in the courts ofanother Contracting State. Consequently, the rules of jurisdiction which derogatefrom that general principle cannot give rise to an interpretation going beyond thecases envisaged by the Convention (see, in particular, Case C-269/95 Benincasa vDentalkit [1997] ECR I-3767, paragraph 13).

17.

It follows, as the Court held in paragraph 15 of Handte, cited above, that thephrase 'matters relating to contract, as used in Article 5(1) of the Convention, isnot to be understood as covering a situation in which there is no obligation freelyassumed by one party towards the other.

18.

In this case, it is clear from the findings of the national courts at first instance andon appeal that the bearer bill of lading issued by RCC covers the carriage of thegoods by sea to Rotterdam, the port of discharge and delivery, that it specifies

Brambi as the person to whom the arrival of the goods must be notified and thatit indicates that the goods are to be carried aboard the Alblasgracht V002.

19.

It must therefore be held that that bill of lading discloses no contractualrelationship freely entered into between Brambi on the one hand and, on the other,Spliethoff's Bevrachtingskantoor BV and the Master of the Alblasgracht V002, who,according to the insurers, were the actual maritime carriers of the goods.

20.

In those circumstances, the action brought against the latter by the insurers cannotbe a matter relating to a contract within the meaning of Article 5(1) of theConvention.

21.

It is next necessary to determine whether such an action is concerned with a matterrelating to tort, delict or quasi-delict within the meaning of Article 5(3) of theConvention.

22.

In its judgment in Case 189/87 Kalfelis v Schröder [1988] ECR 5565, paragraph 18,the Court defined the concept of matters relating to tort, delict or quasi-delictwithin the meaning of Article 5(3) of the Convention as an independent conceptcovering all actions which seek to establish the liability of a defendant and whichare not related to a 'contract within the meaning of Article 5(1).

23.

That is the position in the main proceedings. Where insurers who have beensubrogated to the rights of the consignee of goods which, on completion of a seavoyage followed by overland transport, are found to be damaged claimcompensation for the loss, relying on the bill of lading for the sea voyage, from thepersons whom they regard as actually having carried the goods by sea, the purposeof their action is to establish the carriers' liability and does not, as is clear fromparagraphs 18 to 20 of this judgment, fall within the scope of 'matters relating toa contract within the meaning of Article 5(1) of the Convention.

24.

In those circumstances, it must be held that such an action is a matter relating totort, delict or quasi-delict within the meaning of Article 5(3) of the Convention andthat, therefore, the general principle that the courts of the State in which thedefendant is domiciled are to have jurisdiction, laid down in the first paragraph ofArticle 2 of the Convention, is inapplicable.

25.

The jurisdiction in matters relating to tort, delict or quasi-delict of the courts forthe place where the harmful event occurred is one of the 'special jurisdictionslisted in Articles 5 and 6 of the Convention, which constitute exceptions to thegeneral principle laid down in the first paragraph of Article 2.

26.

The answer to the first two questions must therefore be that an action by which theconsignee of goods found to be damaged on completion of a transport operationby sea and then by land, or by which his insurer who has been subrogated to his

rights after compensating him, seeks redress for the damage suffered, relying on thebill of lading covering the maritime transport, not against the person who issuedthat document on his headed paper but against the person whom the plaintiffconsidered to be the actual maritime carrier, falls within the scope not of mattersrelating to a contract within the meaning of Article 5(1) of the Convention but ofmatters relating to tort, delict or quasi-delict within the meaning of Article 5 (3) ofthe Convention.

The third question

27.

It must borne in mind at the outset that, as the Court has held on several occasions(see the judgments in Case 21/76 Bier v Mines de Potasse d'Alsace, cited above,paragraph 11, Case C-220/88 Dumez France and Tracoba [1990] ECR I-49,paragraph 17, Case C-68/93 Shevill and Others v Presse Alliance [1995] ECR I-415,paragraph 19, and Case C-364/93 Marinari v Lloyds Bank and Another [1995] ECRI-2719, paragraph 10), the rule of special jurisdiction in Article 5(3) of theConvention, the choice of which is a matter for the plaintiff, is based on theexistence of a particularly close connecting factor between the dispute and courtsother than those of the State of the defendant's domicile which justifies theattribution of jurisdiction to those courts for reasons relating to the soundadministration of justice and the efficacious conduct of proceedings.

28.

It must next be observed that in the judgments cited above in Mines de Potassed'Alsace, paragraphs 24 and 25, and Shevill and Others, paragraph 20, the Courtheld that, where the place of the happening of the event which may give rise toliability in tort, delict or quasi-delict and the place where that event results indamage are not identical, the expression 'place where the harmful event occurredin Article 5(3) of the Convention must be understood as being intended to coverboth the place where the damage occurred and the place of the event giving riseto it, so that the defendant may be sued, at the option of the plaintiff, in the courtsfor either of those places.

29.

In Marinari, cited above, paragraph 13, the Court made it clear that the choice thusavailable to the plaintiff cannot however be extended beyond the particularcircumstances which justify it, since otherwise the general principle laid down in thefirst paragraph of Article 2 of the Convention that the courts of the ContractingState where the defendant is domiciled are to have jurisdiction would be negated,with the result that, in cases other than those expressly provided for, jurisdictionwould be attributed to the courts of the plaintiff's domicile, a solution which theConvention does not favour since, in the second paragraph of Article 3, it excludesapplication of national provisions which make such jurisdiction available forproceedings against defendants domiciled in the territory of a Contracting State.

30.

The Court went on to infer, in paragraph 14 of that judgment, that whilst it hasthus been recognised that the term 'place where the event giving rise to the

damage occurred within the meaning of Article 5(3) of the Convention may coverboth the place where the damage occurred and the place of the event giving riseto it, that term cannot be construed so extensively as to encompass any place wherethe adverse consequences can be felt of an event which has already caused damageactually arising elsewhere.

31.

For the same reasons, in Dumez France and Tracoba, cited above, the Court heldthat the rule on jurisdiction laid down in Article 5(3) of the Convention cannot beinterpreted as permitting a plaintiff pleading damage which he claims to be theconsequence of the harm suffered by other persons who were direct victims of theharmful act to bring proceedings against the perpetrator of that act in the courtsof the place in which he himself ascertained the damage to his assets.

32.

It follows that a consignee of goods who, on completion of a transport operationby sea and then by land, finds that the goods delivered to him are damaged maybring proceedings against the person whom he regards as the actual maritimecarrier either before the courts for the place where the damage occurred or thecourts for the place of the event giving rise to it.

33.

As the Advocate General emphasises in points 54 to 56 of his Opinion, in aninternational transport operation of the kind at issue in the main proceedings theplace where the event giving rise to the damage occurred may be difficult or indeedimpossible to determine. In such circumstances, it will be for the consignee of thedamaged goods to bring the actual maritime carrier before the courts for the placewhere the damage occurred. It must be pointed out in that regard that, in aninternational transport operation of the kind at issue in the main proceedings, theplace where the damage occurred cannot be either the place of final delivery,which, as the Commission rightly pointed out, can be changed in mid-voyage, or theplace where the damage was ascertained.

34.

To allow the consignee to bring the actual maritime carrier before the courts forthe place of final delivery or before those for the place where the damage wasascertained would in most cases mean attributing jurisdiction to the courts for theplace of the plaintiff's domicile, whereas the authors of the Conventiondemonstrated their opposition to such attribution of jurisdiction otherwise than inthe cases for which it expressly provides (see, to that effect, Dumez France andTracoba, cited above, paragraphs 16 and 19, and Case C-89/91 Shearson LehmanHutton v TVB [1993] ECR I-139, paragraph 17). Furthermore, such aninterpretation of the Convention would make the determination of the competentcourt depend on uncertain factors, which would be incompatible with the objectiveof the Convention which is to provide for a clear and certain attribution ofjurisdiction (see, to that effect, Marinari, paragraph 19, and Handte, paragraph 19,both cited above).

35.

In those circumstances, the place where the damage arose in the case of aninternational transport operation of the kind at issue in the main proceedings canonly be the place where the actual maritime carrier was to deliver the goods.

36.

That place meets the requirements of foreseeability and certainty imposed by theConvention and displays a particularly close connecting factor with the dispute inthe main proceedings, so that the attribution of jurisdiction to the courts for thatplace is justified by reasons relating to the sound administration of justice and theefficacious conduct of proceedings.

37.

The answer to be given to the third question must therefore be that the placewhere the consignee of the goods, on completion of a transport operation by seaand then by land, merely discovered the existence of the damage to the goodsdelivered to him cannot serve to determine the 'place where the harmful eventoccurred within the meaning of Article 5(3) of the Convention, as interpreted bythe Court.

The fourth question

38.

It must be noted at the outset that the Convention does not use the term'indivisible in relation to disputes but only the term 'related, in Article 22.

39.

As the Court made clear in Case 150/80 Elefanten Schuh v Jacqmain [1981] ECR1671, paragraph 19, Article 22 of the Convention is intended to establish howrelated actions which have been brought before courts of different ContractingStates are to be dealt with. It does not confer jurisdiction; in particular, it does notaccord jurisdiction to a court of a Contracting State to try an action which is relatedto another action of which that court is seised pursuant to the rules of theConvention.

40.

In that judgment the Court held that Article 22 of the Convention applies onlywhere related actions are brought before courts of two or more Contracting States.

41.

It is clear from the documents before the Court in this case that separate actionshave not been brought before the courts of different Contracting States, so that, inany event, the conditions for the application of Article 22 are not met.

42.

It must next be borne in mind that, under Article 3 of the Convention, personsdomiciled in a Contracting State may be sued in the courts of another ContractingState only by virtue of the rules set out in Sections 2 to 6 of Title II.

43.

Those rules include, in Article 6(1) of the Convention, the rule that a person mayalso be sued, 'where he is one of a number of defendants, in the courts for theplace where any one of them is domiciled.

44.

As is clear from the very wording of Article 6(1), it applies only if the proceedingsin question are brought before the courts for the place where one of thedefendants is domiciled.

45.

That is not the case here.

46.

It must be observed that the objective of legal certainty pursued by the Conventionwould not be attained if the fact that a court in a Contracting State had acceptedjurisdiction as regards one of the defendants not domiciled in a Contracting Statemade it possible to bring another defendant, domiciled in a Contracting State,before that same court in cases other than those envisaged by the Convention,thereby depriving him of the benefit of the protective rules laid down by it.

47.

In any event, the exception provided for in Article 6(1) of the Convention,derogating from the principle that the courts of the State in which the defendantis domiciled are to have jurisdiction, must be construed in such a way that there isno possibility of the very existence of that principle being called in question, inparticular by allowing a plaintiff to make a claim against a number of defendantswith the sole purpose of ousting the jurisdiction of the courts of the State whereone of those defendants is domiciled (Kalfelis, cited above, paragraphs 8 and 9).

48.

Accordingly, after pointing out that the purpose of Article 6(1) of the Convention,and of Article 22, is to ensure that judgments which are incompatible with eachother are not given in the Contracting States, the Court held in Kalfelis that, forArticle 6(1) of the Convention to apply there must exist between the variousactions brought by the same plaintiff against different defendants a connection ofsuch a kind that it is expedient to determine the actions together in order to avoidthe risk of irreconcilable judgments resulting from separate proceedings.

49.

In that connection, the Court also held in Kalfelis that a court which has jurisdictionunder Article 5(3) of the Convention over an action in so far as it is based on tortor delict does not have jurisdiction over that action in so far as it is not so based.

50.

It follows that two claims in one action for compensation, directed against differentdefendants and based in one instance on contractual liability and in the other onliability in tort or delict cannot be regarded as connected.

51.

Finally, as the Court held in paragraph 20 of Kalfelis, whilst it is true thatdisadvantages arise from different aspects of the same dispute being adjudicatedupon by different courts, it must be pointed out, on the one hand, that a plaintiffis always entitled to bring his action in its entirety before the courts for the domicileof the defendant and, on the other, that Article 22 of the Convention allows thefirst court seised, in certain circumstances, to hear the case in its entirety providedthat there is a connection between the actions brought before the different courts.

52.

The answer to the fourth question must therefore be that Article 6(1) of theConvention must be interpreted as meaning that a defendant domiciled in aContracting State cannot be sued in another Contracting State before a court seisedof an action against a co-defendant not domiciled in a Contracting State on theground that the dispute is indivisible rather than merely displaying a connection.

Costs

53.

The costs incurred by the French and German Governments and the Commissionof the European Communities, which have submitted observations to the Court, arenot recoverable. Since these proceedings are, for the parties to the mainproceedings, a step in the proceedings pending before the national court, thedecision on costs is a matter for that court.

On those grounds,

THE COURT (Third Chamber)

in answer to the questions referred to it by the Cour de Cassation by judment of28 January 1997, hereby rules:

1. An action by which the consignee of goods found to be damaged oncompletion of a transport operation by sea and then by land, or by whichhis insurer who has been subrogated to his rights after compensating him,seeks redress for the damage suffered, relying on the bill of lading coveringthe maritime transport, not against the person who issued that documenton his headed paper but against the person whom the plaintiff consideredto be the actual maritime carrier, falls within the scope not of mattersrelating to a contract within the meaning of Article 5(1) of the Conventionof 27 September 1968 on jurisdiction and the enforcement of judgments incivil and commercial matters, as amended by the Convention of 9 October1978 on the Accession of the Kingdom of Denmark, Ireland and the UnitedKingdom of Great Britain and Northern Ireland, by the Convention of 25October 1982 on the Accession of the Hellenic Republic and by theConvention of 26 May 1989 on the Accession of the Kingdom of Spain andthe Portuguese Republic, but of matters relating to tort, delict orquasi-delict within the meaning of Article 5(3) of that Convention.

2. The place where the consignee of the goods, on completion of a transportoperation by sea and then by land, merely discovered the existence of thedamage to the goods delivered to him cannot serve to determine the 'placewhere the harmful event occurred within the meaning of Article 5(3) of theConvention of 28 September 1968, as interpreted by the Court.

3. Article 6(1) of the Convention of 27 September 1968 must be interpretedas meaning that a defendant domiciled in a Contracting State cannot besued in another Contracting State before a court seised of an action againsta co-defendant not domiciled in a Contracting State on the ground that thedispute is indivisible rather than merely displaying a connection.

Puissochet Moitinho de Almeida

Gulmann

Delivered in open court in Luxembourg on 27 October 1998.

R. Grass

J.-P. Puissochet

Registrar

President of the Third Chamber

1: Language of the case: French.