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This principle is clearly enshrined in article 25 of the recast Brussels Regulation ((EU) No 1215/2012 of 12 December 2012) (OJ 2012 L351, p 1): 1. Ratio |
If the parties, regardless of their domicile, have agreed that a court or the courts of a member state are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null... |
Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Ratio |
The agreement conferring jurisdiction shall be either: (a) (b) in writing or evidenced in writing; in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been ... |
Accordingly, Essers and Kazemier submit that, in so far as the BAT companies seek to rely against them upon jurisdiction clauses which were contained in the contract between BAT and Exel and to which they did not agree, CMR cannot and should not be interpreted as binding them by such clauses. ARG |
The fact that, as it happened, the sub-contracts made by Exel with Essers Security and Kazemier were also subject to English choice of law and court clauses must, I accept, be legally irrelevant in this connection, however much it might be thought to diminish the attractiveness in non- legal terms of Essers and Kazemie... |
In the further alternative, BAT submit that, if CMR positively precludes the recognition or application of article 6(1) or of a similar principle, then CMR would lead to results which are less favourable for achieving sound operation of the internal market than those resulting from the provisions of the Brussels Regula... |
The quotations are from the Court of Justices judgments in Nipponkoa Insurance Co (Europe) Ltd v Inter-Zuid Transport BV (DTC Surhuisterveen BV intervening) (Case C-452/12) EU:C:2013:858; [2014] 1 All ER (Comm) 288, paras 37 and 44; see also TNT Express Nederland BV v Axa Versicherung AG (Case C-533/08) EU:C:2010:243; ... |
Article 31.1 general Ratio |
I turn to consider article 31.1. Ratio |
A significant element of the Court of Appeals reasoning was that, looking at the overall structure of CMR, article 31 was primarily concerned only with, on the one side, cargo interests in the form of the sender or consignee, and, on the other side, the carrier and [p]rima facie, therefore, in its place, is not address... |
On that basis, the Court of Appeal approached article 31 as not addressing the possibility of multiple carrier defendants, successive carriers being only introduced in the later Chapter VI (para 62). Ratio |
Article 31.1 thus balanced the interests of cargo interests and the original CMR carrier, by providing in paragraph (a) for jurisdictions looking to the interests of defendants and in paragraph (b) for jurisdictions looking to the interests of claimants (para 63). Ratio |
The Court of Appeals approach in this regard led into its view that it was natural to treat the last sentence of article 36 as a further jurisdictional provision directed to the position of successive carriers who had only been introduced in article 34. Ratio |
The difficulty I have with this approach is that, firstly, CMR must have been conceived as a whole and cannot be read as a series of sequential provisions, each unconscious of what was to follow. Ratio |
Even the Court of Appeals use of words primarily and prima facie contain a limited recognition of that truth. Ratio |
Secondly, the provisions of Chapter V, including article 31, must, on analysis, apply not only to disputes arising between cargo interests and the original CMR carrier, but also to situations where a successive carrier is involved. Ratio |
That is clearly true of article 30, dealing with checking and time limits for making reservations. Ratio |
It is also true of article 32 dealing with the one-year limitation period for actions. Ratio |
It must also be true of the provisions regarding lis pendens, enforceability, and security for costs in paras 2-5 of article 31. Ratio |
Article 31.1 must equally apply and have been envisaged as covering cases of successive carriage. Ratio |
Mr Charles Priday in his submissions for BAT recognised this by his submission that what article 31 envisaged in such a case was that the claimant would establish jurisdiction against at least one of the relevant carriers identified in article 36 (ie the first or last carrier or the carrier performing the carriage at t... |
Mr John Passmore QCs response for Essers and Kazemier is that this analysis effectively undermines and opens up the careful scheme of article 31. Ratio |
Article 31.1 jurisdiction designated by agreement Ratio |
Rather than take the questions which the parties have identified in the order they have addressed them, I think that it is helpful to go through the various heads of jurisdiction contained in article 31 in the order in which they appear. Ratio |
The opening provision of article 31.1 is that the plaintiff may bring an action in any court or tribunal of a contracting country designated by agreement between the parties. Ratio |
It is unnecessary on these appeals to decide whether that means between the parties to the carriage contract or the parties to the litigation. Ratio |
But I am of the view that it should be interpreted as meaning the latter. Ratio |
Article 31.1 is a provision dealing with jurisdiction to bring legal proceedings. Ratio |
Any agreement on jurisdiction between the parties to such proceedings is one for which one would naturally expect a Convention like CMR to cater. Ratio |
When article 31.2 goes on to preclude any new action between the same parties, it is also referring to the parties to the litigation. Ratio |
On this point, therefore, I would endorse Rix LJs view in Hatzl v XL Insurance Co Ltd [2009] EWCA Civ 223, [2010] 1 WLR 470, para 64. Ratio |
Whatever the position in that respect, however, the opening provision of article 31.1 clearly applies as between BAT and Exel. Ratio |
It provides one ground of jurisdiction for suing Exel in England (at least one other being, under paragraph (a), that Exels principal place of business is here). Ratio |
The words and, in addition in article 31 qualify the operation of the jurisdiction clause agreed between BAT and Exel only to the extent that the clause is not under CMR exclusive. Ratio |
So BAT could, if they had wished, have sued in one of the other jurisdictions provided by paragraphs (a) and (b) of article 31.1. Ratio |
But it is common ground that they were as against Exel entitled to take advantage of the English jurisdiction clause. Ratio |
Since it is also common ground on these appeals that Essers Security and/or Essers Transport in respect of the first container and Kazemier in respect of the second were successive carriers, it follows that they must, under article 34, have become party to the respective contract or contracts of carriage made between B... |
If the matter stopped there, that would on the face of it mean party to those contracts whatever their terms. Ratio |
But article 34 qualifies the position, by adding that a successive carrier becomes 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, or in French becomes par leur acceptation de la marchandise et de la lettre de voiture, parties... |
These references to the terms or conditions of the consignment note are general. Ratio |
They clearly refer to something different from any reservations which the first carrier may have entered regarding the number, marks, numbers, condition or packaging of the goods taken over under article 8.1, or which a successive carrier may have entered on his acceptance of the goods under article 35.1. Ratio |
Such reservations are not terms or conditions by which anyone is bound. Ratio |
Equally, since the consignment note is intended to confirm the contract of carriage (article 4) and is prima facie evidence of both its making and its conditions (article 9.1), it is difficult to understand the purpose of the reference to terms or conditions in article 34, unless it is intended to mean that a successiv... |
CMR in a number of places refers to carriage, liability or conduct under the terms of or in accordance with a Convention, contract, article or law, and these also envisage that the former will be measured or controlled by reference to the latter. Ratio |
Article 6 contains a full list of particulars which are required to appear in a consignment note and by their nature will disclose core terms of the main carriage contract. Ratio |
But neither article 6 nor the present consignment notes make mention of any choice of law or court clause or agreement. Ratio |
Particulars of any such clause or agreement might have been added as contemplated by article 6.3 of CMR in the boxes entitled Conventions particulires or Besondere Vereinbarungen on the consignment note. Ratio |
But these boxes were in each case left empty. Ratio |
There is of course nothing unusual about either a choice of law and court clause, or a clause providing for dispute resolution before an arbitration tribunal. Ratio |
Both are common enough in international trade. Ratio |
Article 31 contemplates that a contract of carriage may contain either, and the latter is for good measure also expressly permitted by article 33. Ratio |
But that does not mean that CMR necessarily intended that a successive carrier should become party to such a clause, without having any notice of it or the express opportunity to decline to carry on its terms. Ratio |
BAT rely on the fact that neither article 6.1 nor article 6.2 of CMR requires a CMR consignment note to state the existence of a choice of law or court clause. Ratio |
But that to my mind tends to confirm that the transposition of application of such a clause to the relationship between the consignor or consignee and a successive carrier depends on agreement, and here in particular upon the use of the boxes provided pursuant to article 6.3. Ratio |
Had it been contemplated that a successive carrier would automatically be bound by such a clause, one would have expected the existence of such a clause to have been among the particulars required by these paragraphs to appear in the consignment note for the very purpose of giving the successive carrier notice of them.... |
That is one obvious reason why, alongside basic details relating to the parties, the carriage and the goods (including in the case of dangerous goods their generally recognised description), the consignment note is required also to include for example, a statement that the carriage is subject to CMR, and further detail... |
These are all matters in relation to which a successive carrier would be expected to be bound and would accordingly need to know. Ratio |
A choice of court clause is, on the contrary, a particular which the parties to a consignment note (particularly the consignors as the most likely claimant against a successive carrier) might consider it appropriate to identify in the relevant box, Conventions particulires, if they wished to bind a successive carrier b... |
It would fall within article 6.3. Ratio |
But there is no reason why they should be bound to do this. Ratio |
At a more fundamental level, I am now also persuaded that it would be contrary to general principle to hold a successive carrier bound by a choice of court clause, or any other contractual clause not evidenced by the consignment note, of which he had no express notice. Ratio |
To do so would involve an unfamiliar and undesirable invasion of the general principle that contract depends on agreement. Ratio |
It is true that CMR itself provides that a successive carrier becomes a party to the original carriage contract by acceptance of the goods and the consignment note. Ratio |
But that is the published and, by now at least, familiar scheme of CMR, which any road carrier carrying on business within the CMR states may be taken to know, and of which the consignment note is also required to give express notice. Ratio |
To hold a successive carrier liable by reference to terms or conditions not mentioned in the consignment note would be a quite different matter. Ratio |
The consignor and a first carrier may have agreed all sorts of onerous obligations by which it would be most unfair to hold a successive carrier bound. Ratio |
In the present case, it is alleged that Exel had been specifically instructed not to park the second container overnight. Ratio |
No such instruction was recorded on the consignment note. Ratio |
While we heard no argument on this specific point, it seems difficult to suggest that any such instruction could bind anyone contractually other than Exel. Ratio |
To attempt to distinguish between specific instructions of a usual and an unusual nature would, in my view, be to make bricks without straw. Ratio |
CMR neither contains nor hints at any such distinction. Ratio |
Article 34 makes the straightforward point that successive carriers take over the goods and become parties to the original contract on the terms or conditions of the consignment note. Ratio |
On that basis, I have ultimately reached the clear conclusion that there is no basis upon which Essers or Kazemier can have become bound by an English jurisdiction clause in the original contract or contracts to which they became party, but which was not identified in the terms or conditions of the CMR consignment note... |
I note that Professor Loewe takes a different view in para 282 of the paper to which I have already referred, considering that a successive carrier who on his view becomes bound by a jurisdiction clause of which he had no notice in the consignment note could bring an action for damages against the first carrier. Ratio |
This view is not based on any reference to negotiations preceding CMR, and is stated in simple conclusionary terms. Ratio |
Why and how a successive carrier could or would have any claim for damages against a first carrier, who had no duty to identify the jurisdiction clause on the consignment note, is also unexplained. Ratio |
Other commentators have not accepted Professor Loewes view on this point, though their reasoning varies. Ratio |
In Hill and Messents CMR: Contracts for the International Carriage of Goods by Road 3rd ed (2000), paras 11.37 and 11.67 take the view which I have expressed. Ratio |
At the same time, paras 10.27 and 10.28 suggest that a consignee may (like a privy or assignee) be bound by a jurisdiction clause, even though it is not mentioned in the consignment note. Ratio |
But, if that is correct (on which I need express no concluded view), it does not undermine paras 11.37 and 11.67; rather it is because under article 13 a consignee stands, without more, in the same position as the consignor with regard to the enforcement of any rights arising from the contract of carriage, and, unlike ... |
In contrast, Professor Malcolm Clarke in his work, cited above, para 46c suggests that the designation of a court or tribunal by agreement between sender and carrier will not bind the consignee or a successive carrier unless the latter [sic] has notice of the designation. Ratio |
But he does so on a basis which makes no reference to the language of article 34 and relies on two French decisions: one by the Court of Appeal of Paris dated 14 November 1969, the other by the Court of Appeal of Colmar dated 26 November 2001. Ratio |
In the former, a French consignee suing in France was held not bound by any German jurisdiction clause, firstly because none had been proved even between the German consignor and the carrier, and secondly because the only document of a contractual nature evidencing the carriage terms which the consignee ever saw and ac... |
In the latter case, the French consignor (Amural) was claiming, firstly, against the German buyer/consignee (Neuendorf) of frozen duck fillets for withholding 15% of the invoice amount on account of the high temperature of the fillets on arrival and, secondly or alternatively, against the carriers (TAC Transports) and ... |
There was clearly French jurisdiction against both carriers under article 31.1(a) and (b), but there was an internal issue as to whether the Regional Court of Mulhouse had been chosen by agreement between Amural and TAC Transports or whether, failing such choice and as the court held, the Commercial Court of Meaux was ... |
Neuendorf as buyer/consignee accepted that CMR governed his relationship with Amural. Ratio |
This seems very strange in respect of a claim by Amural which appears to have been, as against Neuendorf, for the balance of the unpaid price of goods. Ratio |
But, on the basis that CMR applied, Neuendorf contended that he could only be sued in Bochum, Germany as the place where he resided and the place of delivery. Ratio |
This suggestion was summarily rejected by the court on the ground that article 31 conferred jurisdiction on France. Ratio |
As against Neuendorf, and on the apparently odd assumption that CMR regulated its sale of goods relationship with Amural, this was presumably on the basis that France was where the goods were taken over for carriage. Ratio |
Neither of the French cases cited by Professor Clarke seems to me therefore to offer any real guidance as to the proper approach to the application of an agreed jurisdiction clause as against a successive carrier. Ratio |
However, in the light of the other considerations which I have set out, and contrary to my initial reaction, I have come the clear conclusion that the qualifying phrase in article 34 has the effect that a successive carrier will not be bound by a jurisdiction clause agreed between the consignor and the first carrier un... |
Article 31.1 further provisions Ratio |
I move accordingly to the further provisions of article 31.1. Ratio |
It is common ground, and in any event clearly correct, that paragraph (b) refers to the places of taking over by the carrier and designated for delivery under the CMR contract made between the consignor and the first carrier. Ratio |
The only caveat that may be appropriate is that, as regards a successive carrier, the position could (again in the light of article 34) be different if the CMR consignment note failed correctly to reflect the place of taking over or the place designated for delivery actually agreed between the consignor and first carri... |
That, hopefully rare, case does not require further consideration here. Ratio |
The effect of paragraph (b) is that any carrier against whom proceedings can be brought under article 36 can be sued in either the place where the goods were taken over or the place designated for their delivery. Ratio |
Paragraph (a) of article 31.1 is on the other hand concerned with the position of the particular defendant under consideration, whether or not there are other co- defendants. Ratio |
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