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The present appeals each involve the issue whether the consignors can found jurisdiction in England not only against the main contractors but also against sub- contractors as successive carriers within the meaning of CMR, by relying on the presence here of, and the proceedings brought against, the main contractors and/... |
The goods had a high value, put in the case of the first container at 624,000 plus 2.9m duty and/or taxes demanded by Belgian Customs, and in the case of the cartons missing from the second container at 30,000 plus over 500,000m duty and/or taxes. Ratio |
English law and English jurisdiction are said to offer the advantage that such duty and/or taxes are recoverable in a CMR claim against carriers, which is not the case in some other jurisdictions. Ratio |
Joinder of all carriers in English proceedings is said to have the advantage that it will ensure that all parties concerned and their witnesses will be involved in the same proceedings, in which the consignors intend to seek to establish wilful misconduct, so preventing any carrier liable from availing itself of the li... |
In a clearly reasoned judgment, given on 23 March 2012 within a week of the hearing before him, the judge (Cooke J) held that the consignors could not succeed in doing this, and set aside the proceedings against the sub-contractors: [2010] EWHC 694 (Comm); [2013] 1 WLR 397. RLC |
The Court of Appeal (McFarlane LJ, Sir Bernard Rix and Sir Timothy Lloyd) heard argument over two days on 5-6 February 2013, and in a detailed judgment given by Sir Bernard Rix on 30 October 2013 reached the opposite conclusion: [2013] EWCA Civ 1319; [2014] 1 WLR 4526. RLC |
The matter now comes to this court with our permission. Ratio |
The circumstances in greater detail FAC |
The two consignors were companies in the British American Tobacco group. FAC |
They are respondents on the appeal and have been referred to together as BAT. FAC |
The transport of the container loads took place under a framework agreement made by British American Tobacco (Supply Chain WE) Ltd (BAT SCWE) and a local agreement made by British American Tobacco (Holdings) Ltd (BAT Holdings) with the first defendants Exel Europe Ltd (Exel), who have played no part on these appeals. F... |
The appellants are in the first appeal H Essers Security Logistics BV (Essers Security) and H Essers Transport Co Nederland BV (Essers Transport), referred to collectively as Essers, and in the second appeal Kazemier Transport BV (Kazemier). FAC |
All the appellants are ordinarily resident in and have their principal place of business in the Netherlands. FAC |
Essers Security was engaged by Exel to carry the first container, and maintains that it in turn engaged Essers Transport to do this. FAC |
Kazemier was engaged by Exel to carry the second container. FAC |
Two CMR consignment notes are before the court. Ratio |
In relation to the first container, we have the consignors copy issued in Switzerland on 2 September 2011, showing the relevant BAT company as consignor and Maersk Shipping Lines as intended consignee and signed simply by Essers as carriers. Ratio |
In relation to the second container, we have the carriers copy issued in Hungary on 15 September 2011 showing the relevant BAT company as consignor, an associated Danish company as consignee and Kazemier as carrier. Ratio |
It is signed by a chauffeur, presumably Kazemiers driver, and, on receipt of the container at destination on 20 September 2011, by the Danish company with a notation regarding the missing cartons. Ratio |
The common ground about the CMR position Ratio |
There is much common ground between the parties. Ratio |
First, the two BAT companies who are consignors have been treated as parties to the framework and/or local agreement, each of which provides that it is governed by English law, and that each party irrevocably submits to the exclusive jurisdiction of the English courts in relation to all matters arising out of or in con... |
I note in parenthesis that the sub-contracts made by Exel with respectively Essers Security and Kazemier also contained identical provisions, regarding choice of law and court. Ratio |
Second, the arrangements between each BAT consignor and Exel constituted a contract for carriage by Exel within the meaning of CMR. Ratio |
Third, under the provisions of Chapter VI of the Convention relating to carriage performed by successive carriers, Exel was the first carrier, while one or other of the Essers companies was the last carrier and the carrier performing the carriage at the time of the loss of the first container, and Kazemier was the last... |
Chapter VI of the Convention commences with article 34, providing: If carriage governed by a single contract is performed by successive road carriers, each of them shall be responsible for the performance of the whole operation, the second carrier and each succeeding carrier becoming a party to the contract of carriage... |
In the French version (equally authentic at an international level), that reads: Si un transport rgi par un contrat unique est execut par des transporteurs routiers successifs, chacun de ceux-ci assume la responsabilit de excution du transport total, le second transporteur et chacun des transporteurs suivants devenant,... |
Article 35 gives a further indication as to how this system is envisaged as working. STA |
It provides: 1. STA |
A carrier accepting the goods from a previous carrier shall give the latter a dated and signed receipt. STA |
He shall enter his name and address on the second copy of the consignment note. STA |
Where applicable, he shall enter on the second copy of the consignment note and on the receipt reservations of the kind provided for in article 8, paragraph 2. 2. STA |
The provisions of article 9 shall apply to the relations between successive carriers. STA |
The common ground between the parties in the present case involves necessarily their acceptance that one or other of the Essers companies in the case of the first container and Kazemier in the case of the second was a successive carrier within article 34. Ratio |
In this connection, the present parties are content to proceed on the basis, said in Professor Malcolm Clarkes work International Carriage of Goods by Road: CMR, 6th ed (2014), para 50a(i) to be disputed but accepted by both Donaldson J and the Court of Appeal in Ulster-Swift v Taunton Meat Haulage [1975] 2 Lloyds Rep ... |
Further, although article 4 of CMR provides that The contract of carriage shall be confirmed by the making out of a consignment note, it continues by saying that The absence, irregularity or loss of the consignment note shall not affect the existence or the validity of the contract of carriage which shall remain subjec... |
However, article 34 provides that a second or succeeding carrier only becomes a successive carrier by becoming a party to the contract of carriage, under the terms of the consignment note, by reason of his acceptance of the goods and the consignment note. Ratio |
At this point, therefore, it might seem that the existence of a CMR note was of importance, and Professor Loewe, in a Commentary on the Convention of 19 May 1956 on the Contract for the International Carriage of Goods by Road (CMR), prepared for the United Nations in 1975 and expressed at paragraph 16 to be based on th... |
There appears in the present cases at least a real possibility that the two CMR consignment notes only came into existence at the time when the relevant Essers company and Kazemier collected the respective consignments and signed the relevant CMR consignment notes. Ratio |
Whether article 34 can apply to such a case is a point which we can however leave open, since the parties are prepared without further examination to proceed on the basis that these appeals both concern successive carriage, by the relevant Essers company or companies and by Kazemier, within the terms of article 34. Rat... |
Further provisions of CMR STA |
The appeals raise a number of particular issues, to address which it is necessary to set out further provisions of CMR: CHAPTER II PERSONS FOR WHOM THE CARRIER IS RESPONSIBLE Article 3. STA |
For the purposes of this Convention the carrier shall be responsible for the acts and omissions of his agents and servants and of any other persons of whose services he makes use for the performance of the carriage, when such agents, servants or other persons are acting within the scope of their employment, as if such ... |
CHAPTER III CONCLUSION AND PERFORMANCE OF THE CONTRACT OF CARRIAGE Article 4. STA |
[See above, para 12] Article 5. STA |
The consignment note shall be made out in three original copies signed by the sender and the carrier. STA |
Article 6.1. STA |
The consignment note shall contain the following particulars: (a) the date of the consignment note and the place at which it is made out; the name and address of the sender; the name and address of the carrier; the place and the date of taking over of the goods and the place designated for delivery; the name and addres... |
2 STA |
Where applicable, the consignment note shall also contain the following particulars: (a) (b) (c) (d) a statement that transhipment is not allowed; the charges which the sender undertakes to pay; the amount of cash on delivery charges; a declaration of the value of the goods and the amount representing special interest ... |
(e) (f) (g) 3. STA |
The parties may enter in the consignment note any other particulars which they may deem useful. STA |
Article 8.1. STA |
On taking over the goods, the carrier shall check: (a) (b) the accuracy of the statements in the consignment note as to the number of packages and their marks and numbers, and the apparent condition of the goods and their packaging. STA |
2 STA |
Where the carrier has no reasonable means of checking the accuracy of the statements referred to in paragraph l(a) of this article, he shall enter his reservations in the consignment note together with the grounds on which they are based. STA |
He shall likewise specify the grounds for any reservations which he makes with regard to the apparent condition of the goods and their packaging. STA |
Such reservations shall not bind the sender unless he has expressly agreed to be bound by them in the consignment note. STA |
Article 9.1. STA |
The consignment note shall be prima facie evidence of the making of the contract of carriage, the conditions of the contract and the receipt of the goods by the carrier. STA |
Article 13.1. STA |
After arrival of the goods at the place designated for delivery, the consignee shall be entitled to require the carrier to deliver to him, against a receipt, the second copy of the consignment note and the goods. STA |
If the loss of the goods is established or if the goods have not arrived after the expiry of the period provided for in article 19, the consignee shall be entitled to enforce in his own name against the carrier any rights arising from the contract of carriage. STA |
CHAPTER V CLAIMS AND ACTIONS Article 30.1 [Deals with checking of the goods by the consignee] 30.2. STA |
When the condition of the goods has been duly checked by the consignee and the carrier, evidence contradicting the result of this checking shall only be admissible in the case of loss or damage which is not apparent and provided that the consignee has duly sent reservations in writing to the carrier within seven days, ... |
3 Ratio |
No compensation shall be payable for delay in delivery unless a reservation has been sent in writing to the carrier, within 21 days from the time that the goods were placed at the disposal of the consignee. STA |
5 STA |
The carrier and the consignee shall give each other every reasonable facility for making the requisite investigations and checks. STA |
Article 31.1 1. STA |
In legal proceedings arising out of carriage under this Convention, the plaintiff may bring an action in any court or tribunal of a contracting country designated by agreement between the parties and in addition, in the courts or tribunals of a country within whose territory (a) the defendant is ordinarily resident, or... |
2 STA |
Where in respect of a claim referred to in paragraph 1 of this article an action is pending before a court or tribunal competent under that paragraph, or where in respect of such a claim a judgment has been entered by such a court or tribunal no new action shall be started between the same parties on the same grounds u... |
Article 32: The period of limitation for an action arising out of carriage under this Convention shall be one year. STA |
Nevertheless, in the case of wilful misconduct, or such default as in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct, the period of limitation shall be three years. STA |
Article 33. STA |
The contract of carriage may contain a clause conferring competence on an arbitration tribunal if the clause conferring competence on the tribunal provides that the tribunal shall apply this Convention. STA |
CHAPTER VI PROVISIONS RELATING TO CARRIAGE PERFORMED BY SUCCESSIVE CARRIERS Articles 34 and 35 [See above, paras 10 and 11] Article 36. STA |
Except in the case of a counter-claim or a set-off raised in an action concerning a claim based on the same contract of carriage, legal proceedings in respect of liability for loss, damage or delay may only be brought against the first carrier, the last carrier or the carrier who was performing that portion of the carr... |
Article 37. STA |
A carrier who has paid compensation in compliance with the provisions of this Convention, shall be entitled to recover such compensation, together with interest thereon and all costs and expenses incurred by reason of the claim, from the other carriers who have taken part in the carriage, subject to the following provi... |
(c) Article 38. STA |
If one of the carriers is insolvent, the share of the compensation due from him and unpaid by him shall be divided among the other carriers in proportion to the share of the payment for the carriage due to them. STA |
Article 39.1. STA |
No carrier against whom a claim is made under articles 37 and 38 shall be entitled to dispute the validity of the payment made by the carrier making the claim if the amount of the compensation was determined by judicial authority after the first mentioned carrier had been given due notice of the proceedings and afforde... |
2 STA |
A carrier wishing to take proceedings to enforce his right of recovery may make his claim before the competent court or tribunal of the country in which one of the carriers concerned is ordinarily resident, or has his principal place of business or the branch or agency through which the contract of carriage was made. S... |
All the carriers concerned may be made defendants in the same action. STA |
The issues Ratio |
The following particular issues arise: (i) First, can article 31 and 36 be read together, so that, once a claimant has established jurisdiction against one defendant under article 31.1(a), it can then bring into that jurisdiction any other successive carrier potentially liable under article 36? (ii) Second, is it under... |
The answers to the first three questions all require a proper understanding of the significance of article 31, in a context where there are successive carriers. Ratio |
Each side has also submitted that the fourth question may bear on jurisdiction generally or at least on the first two questions. Ratio |
I will therefore start by outlining how they have submitted that this may be so. Ratio |
Article 6(1) of the Brussels Regulation provides: A person domiciled in a member state may also be sued: where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avo... |
A similar provision exists, of course, in a non-Union context in Practice Direction 6B para 3.1(3) governing the heads of English and Welsh jurisdiction. Ratio |
BAT submit that this reflects a principle of general international acceptance that should inform the interpretation of articles 31 and 36 of CMR, and so the answer to the first question. Ratio |
Alternatively, they submit that, if CMR has otherwise no like provision, there is a lacuna, which falls to be filled by article 6(1) of the Brussels Regulation. Ratio |
In Frans Maas Logistics (UK) Ltd v CDR Trucking BV [1999] 1 All ER (Comm) 737; [1999] 2 Lloyds Rep 179, Colman J held article 31.2 of CMR to be limited to proceedings brought by same claimant against the same defendant, and that, on that basis, the lis pendens provisions of articles 21 and 22 of the Brussels Convention... |
Colman Js decision limiting article 31.2 to claims by the same claimant against the same defendant was overruled by the Court of Appeal in Andrea Merzario Ltd v Internationale Spedition Leitner Gesellschaft GmbH [2001] 1 AER (Comm) 883; [2001] 1 Lloyds Rep 490, though this does not of itself necessarily mean that Colma... |
As to the second question, Essers and Kazemier rely on the principle, which I have no difficulty in accepting, that jurisdiction clauses generally derive their validity from agreement between the parties (or their privies). Ratio |
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