## Facts

- A Danish company operated underwater oil and gas pipelines on the Danish continental shelf in the North Sea.
- A Dutch-flag fishing trawler allegedly damaged the pipelines while fishing; the trawler was owned by a Dutch partnership.
- The shipowners sought to limit liability under the 1957 shipowners’ limitation convention by initiating proceedings in the Netherlands to constitute a limitation fund and obtain a liability cap.
- A Dutch court ordered the constitution of the fund and limited the shipowners’ liability under national law implementing the convention.
- The pipeline operator did not submit a claim to the fund, contested the Dutch court’s jurisdiction in the limitation proceedings, and appealed the fund order.
- Separately, the pipeline operator sued the shipowners for damages in Denmark under the Brussels Convention jurisdiction regime.
- The shipowners argued the Danish action was barred by lis pendens due to the earlier Dutch fund-constitution proceedings; Danish courts declined jurisdiction and referred interpretive questions to the Court of Justice.

## Issues

1. Whether shipowners’ proceedings to constitute a limitation fund in one Contracting State and a victim’s damages action in another involve the same parties, cause of action, and subject matter, creating lis pendens under Article 21 of the Brussels Convention.
2. Whether a court order constituting a limitation fund and limiting liability qualifies as a “judgment” under Article 25 of the Brussels Convention.
3. Whether recognition of such an order may be refused under Article 27(2) where the defendant in default of appearance was not served or notified, in time and properly, of the initiating document (or an equivalent document) sufficient to prepare a defense.

## Decision

- The Court held Article 21 lis pendens did not apply because the limitation-fund proceedings and the damages action lacked the same subject matter and cause of action.
- The Court held an order constituting a limitation fund and limiting liability is a “judgment” within Article 25 and is generally subject to recognition and enforcement.
- The Court held recognition may be refused under Article 27(2) if the party in default was not served or notified of the initiating document, or an equivalent document, in sufficient time and in a manner enabling a defense.
- The Court further held that if national procedure treats the fund order as the first document informing interested parties, that order can be an “equivalent document” and must be notified consistently with Article 27(2).
- The referring court was left to apply these standards to the конкрете circumstances.

## Legal Principles

- For Article 21 lis pendens, “cause of action” turns on the facts and rule of law relied upon, and “subject matter” turns on the end sought; proceedings are not parallel merely because they arise from the same event.
- A shipowner’s limitation-fund application seeks a liability cap and creation of a dedicated fund for qualifying claims; it does not determine substantive liability or full damages, and invoking limitation does not admit liability.
- A court order establishing a limitation fund and limiting liability has binding legal effects and qualifies as a “judgment” under Article 25 of the Brussels Convention.
- Article 27(2) permits refusal of recognition where a defendant in default was not served or notified of the instituting document (or an equivalent document) in sufficient time and in a proper manner to arrange a defense.
- The recognizing court must assess, case by case, whether service/notification safeguards were met, including where the limitation order itself functions as the first notice to affected parties.

## Conclusion

The Court of Justice ruled that limitation-fund proceedings and a separate damages suit are not lis pendens under the Brussels Convention, while confirming that a fund-constitution order is a recognizable “judgment,” subject to refusal of recognition if notice and opportunity to defend were not adequately provided to a party in default.


Maersk Olie & Gas A/S v. Firma M. de Haan en W. de Boer, Case C-39/02, [2004] E.C.R. I-9657 (C.J.E.U. 2004)