Messier-Dowty Ltd v Sabena SA (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Woolf MR,Hale LJ,Lord Mustill |
| Judgment Date | 21 February 2000 |
| Date | 21 February 2000 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal (Civil Division).
Lord Woolf MR, Hale LJ and Lord Mustill.
Sir Sydney Kentridge QC and Michael Swainston (instructed by Herbert Smith) for the appellants.
Philip Shepherd (instructed by Beaumont & Son) for the respondents.
The following cases were referred to in the judgment of Woolf MR:
Boss Group Ltd v Boss France SA [1996] CLC 1419; [1997] 1 WLR 351.
Camilla Cotton Oil Co v Granadex SAUNK [1975] 1 Ll Rep 470 (CA); [1976] 2 Ll Rep 10 (HL).
Clay, ReELR [1919] 1 Ch 66.
First National Bank of Boston v Union Bank of SwitzerlandUNK [1990] 1 Ll Rep 32.
Gannon v British & Irish Steam Packet Co LtdIR [1993] 2 IR 359.
Handelskwekerij GJ Bier BV v Mines de Potasse d'Alsace SAECAS (Case 21/76) [1976] ECR 1735.
Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & CoECAS (Case C-189/87) [1988] ECR 5565[1990] 2 CEC 22.
Midland Bank plc v Laker Airways LtdELR [1986] QB 689.
New Hampshire Insurance Co v Aerospace Finance LtdUNK [1998] 2 Ll Rep 539.
S, Re (Hospital Patient: Court's Jurisdiction)ELR [1996] Fam 1.
Tatry v Maciej RatajECAS (Case C-406/92) [1995] CLC 275; [1994] ECR I-5439.
Volvox Hollandia, The [1988] 2 Ll Rep 361.
Conflict of laws — Negative declarations — Jurisdiction — Joinder — Proceedings arising out of collapse of aircraft landing gear on landing — Belgian aircraft owner sued French manufacturer in France under exclusive jurisdiction clause in sale contract — English supplier of landing gear sought declarations of non-liability — Whether court should join aircraft owner as defendant to English proceedings as matter of jurisdiction and discretion — Civil Jurisdiction and Judgments Act 1982, Sch. 1 (Brussels Convention), art. 2, 5(3), 6(1), 22.
This was an appeal by the claimants (“Dowty”) from a judgment of Moore-Bick J setting aside service of Dowty's claim for declarations of non-liability as against a Belgian company, “Sabena”.
In 1998 an Airbus A340 aircraft owned by Sabena was involved in an incident when its landing gear failed and the aircraft was extensively damaged on landing at Brussels Airport. The landing gear was manufactured by Dowty. The aircraft was supplied to Sabena by Airbus, a consortium of European aircraft manufacturers, under a contract governed by French law conferring exclusive jurisdiction on the Paris courts. Dowty supplied the landing gear to the English member of the Airbus consortium, “BAA”, acting for and on behalf of Airbus, under a contract governed by English law and conferring exclusive jurisdiction on the English courts. Dowty said that any faults in the landing gear were due to the failure of BAA and/or Airbus to provide design and manufacturing data.
Sabena applied to the Paris court to appoint experts under the French Civil Code to investigate the incident as a preliminary to potential proceedings. Dowty challenged the order appointing experts to investigate and report and issued English proceedings against Sabena, Airbus and BAA seeking declarations of non-liability. Langley J refused to stay the proceedings against Airbus ([2000] CLC 464). Moore-Bick J set aside the proceedings against Sabena on grounds that the court had no jurisdiction under the Brussels Convention and that the relief was unnecessary since Sabena had not made a claim against Dowty and, having issued proceedings against Airbus in France, might not take proceedings against Dowty if the French proceedings against Airbus were successful. Dowty appealed.
Held dismissing the appeal:
1.It was clear on the authorities that the granting of negative declarations in an appropriate case was not a matter of jurisdiction but one of discretion. The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. When considering the application of the Brussels Convention the correct approach was to treat negative declarations in the same way as claims for positive relief. Negative declarations could be granted in respect of possible tortious liability.
2.As a matter of domestic law alone the joinder of Sabena was not justified and was inconsistent with the requirement of the CPR to resolve the proceedings justly. That was because the proceedings could no longer all be heard together in England once Sabena had taken proceedings against Airbus in France. That was Sabena's primary claim and it had made no claim against Dowty and might never do so. There was therefore as yet no conflict of jurisdiction which might justify involving Sabena in the English proceedings.
3.The decision to exercise the discretion not to join Sabena was not contrary to the provisions of the Brussels Convention. There was nothing in the convention which required Dowty to bring proceedings in England and if proceedings were brought England did not have exclusive jurisdiction. The proceedings against Sabena could not be brought within art. 6(1) of the Brussels Convention on the basis of BAA's English domicile because art. 6(1) had to be read with art. 22 as encompassing only related actions where there was a risk of irreconcilable judgments which was not this case because Sabena had not proceeded against Dowty. (Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst & CoECAS(Case C-189/87)[1988] ECR 5565; [1990] 2 CEC 22applied.)
Lord Woolf MR: 1. This is an appeal by the claimants (“Dowty”) from a judgment given by Moore-Bick J on 26 July 1999. The judge set aside service of the claim form on the first defendant (“Sabena”), declared that the court had no jurisdiction over Sabena in respect of the causes of action (if any) set out in the claim form and stayed the effect of his order pending the present appeal. The judge gave leave to appeal because he accepted that the case raised questions of general importance in relation to the grant of negative declarations and as to the effect of the Brussels Convention. The convention has force of law in this jurisdiction in consequence of the Civil Jurisdiction and Judgments Act 1982.
2. The proceedings follow from an Airbus A340 aircraft owned by Sabena being involved in an incident when landing at Brussels Airport on 29 August 1998. The incident was caused by the aircraft's starboard landing gear failing. Fortunately the injuries to those on board were slight but the aircraft and its starboard engine were extensively damaged. The loss caused by the failure of the landing gear, including losses sustained as a result of the aircraft being out of use while being repaired, is said to be about US$50m. The aircraft was manufactured by the second defendant (“Airbus”). Airbus is a French economic entity registered under the laws of France. It is a consortium of European aircraft manufacturers. The British partner is the third defendant (“BAA”).
3. The landing gear was designed and manufactured by successive members of the Dowty group of companies to whom I will refer collectively as “Dowty”. Dowty and BAA are companies registered in this country. Sabena is a Belgian company.
4. Airbus was responsible for the manufacture and the supply to Sabena of the Airbus A340 involved in the incident. The aircraft was supplied by Airbus to Sabena under a contract governed by French law. The contract contains an exclusive jurisdiction clause, which gives jurisdiction to the “Tribunaux de Paris”. The contract relating to the design and supply of the landing gear states that it is made between BAA (“the purchaser”) and Dowty (“the supplier”). The contract recites that BAA is acting for and on behalf of Airbus. English Law is the applicable law of the contract and the English courts are given exclusive jurisdiction. The “purchaser” is recorded in the contract as having a number of obligations.
5. From the background facts which I have already set out, it is apparent that the incident on 29 August 1998 was likely to provide fertile ground for protracted and expensive litigation involving highly undesirable satellite disputes as to which jurisdiction is, or which jurisdictions are the appropriate seats for the litigation. As Sir Sydney Kentridge QC for Dowty accepted, it is now reasonably clear that the cause of the incident was faulty design or manufacture or both of the landing gear. It is no longer suggested that there has been any default on the part of Sabena. Sabena, subject to the terms of its contract with Airbus, would therefore appear to be in the relatively happy position of having a straightforward claim against Airbus for breach of the contract, which is governed by the French jurisdiction clause. Sabena could also have a claim against Dowty in tort or delict for breach of duty by Dowty in the design and manufacture of the landing gear. Under English law it could hardly be disputed that a designer and manufacturer of landing gear owes a duty of care to the operator of the aircraft for which the landing gear is provided. Equally, it is clear that Airbus could have a claim for indemnity in so far as the faulty design was the responsibility of Dowty under the contract with Dowty in so far as Dowty was in breach of contract.
6. It is Dowty's contention that the faults in the landing gear were due to the failure of BAA and/or Airbus to provide data for the design and manufacture of the landing gear which was “sufficiently demanding”. In particular the “fatigue spectra” which was provided to Dowty by BAA did not indicate the need for what would be an adequate fatigue strength. Dowty contends that BAA owed a duty of care to Dowty as to the provision of the data. Whether that duty was owed only in tort or in tort and contract depends upon whether BAA was a party to the contract.
7. On 15 April 1999 Sabena made an application to the Tribunal de Commerce in Paris under art. 145 of the new Civil Code. The application was for the appointment of a panel of experts to investigate and report on the causes of the incident on 15 April 1999. Dowty...
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