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In so far as it refers to the country where that defendant is ordinarily resident, or has his principal place of business, it is capable of applying in relation to any successive carrier, or, indeed, in the case of an action by a carrier in relation to any consignor or consignee sued by such a carrier. Ratio |
But the reference to the branch or agency through which the contract of carriage was made is much less obviously apt to apply as against anyone other than one of the original parties to the carriage contract, that is basically the consignor (and perhaps the consignee, if the consignor was acting as his agent) and the f... |
Mr Priday submits that that is wrong, and that, as successive carriers, Essers and Kazemier can be regarded as having contracted through the branch or agency of Exel because Exel made the framework and local agreement with BAT, to which Essers and Kazemier became parties under article 34. Ratio |
That I regard as distorting the plain purpose and effect of the relevant provisions of CMR. Ratio |
Essers and Kazemier are as successive carriers party to the original carriage contract under the terms of the consignment note not because anyone made a contract with them through any branch or agency, but simply because CMR makes them a party by statute in consequence of their accepting the goods and the consignment n... |
It follows that article 31.1 contains a variety of provisions: (i) a provision enabling the enforcement of any jurisdiction clause in favour of the court or tribunal of a contracting state which was (a) agreed between the parties to the original carriage contract, or (b) to be taken, in the light of article 34, to be a... |
(ii) provisions in paragraph (a) regarding ordinary residence and a principal place of business which can be relied upon as against any carrier or successive carrier liable to suit under article 36, as well as by a carrier bringing proceedings arising out of carriage under CMR against a consignor or consignee, (iii) a ... |
The important corollary of these provisions is that, under the final words of article 31.1, a claimant may not bring an action arising out of carriage under CMR in any other courts or tribunals. STA |
The relationship of articles 31.1, 36 and 39 Ratio |
BATs case is that, once jurisdiction is established over one carrier under article 31.1 in any of the jurisdictions provided by that article, then the last sentence of article 36 opens up the further possibility of joining in the same proceedings any other carrier or carriers potentially liable under article 36, even t... |
The alternative view of the last sentence of article 36, advocated by Essers and Kazemier, is that it is there to make clear that the liability of the first, last carrier and performing carriers under article 36 is joint and several, and not alternative as might otherwise have been capable of being suggested in view of... |
The provision that an action may be brought against several of these carriers at the same time, or in the French la fois, is on this alternative view merely confirming or emphasising that there is no need to pursue them sequentially. Ratio |
On BATs case, a jurisdiction clause agreed between the consignor and first carrier, but not mentioned in the CMR consignment note accepted by a successive carrier, would nonetheless enable the successive carrier to be added to the proceedings commenced against the first carrier in the court or tribunal of the place ass... |
Likewise, the ability to rely on any of the heads of jurisdiction provided by paragraph (a) of article 31.1 as against any relevant carrier (first, last or performing) would open up the same jurisdiction against any other of such carriers in relation to whom article 31.1 would not otherwise provide any ground of jurisd... |
As BAT contend on the present appeals, the principal place of business of any carrier (even though it was outside any contracting state) would suffice to ground jurisdiction against all relevant carriers, even though it has no connection with the physical carriage. Ratio |
On the face of it, such extensions of the carefully delineated jurisdiction provided by article 31.1 seem unlikely to have been intended. Ratio |
The interests of claimants are, as the Court of Appeal observed at para 63, served by paragraph (b). Ratio |
That paragraph enables all carriers potentially liable under article 36 to be joined in one forum. Ratio |
The opening up of the heads of jurisdiction specified in article 31.1 which on BATs case follows from the last sentence of article 36 sits uneasily with the final words of article 31.1 and in no other courts or tribunals. Ratio |
BAT submit that the interpretation of the last sentence of article 36 which they advance brings symmetry and order to CMRs treatment of claims involving multiple defendants. Ratio |
In a cargo claim, jurisdiction can be achieved against all by establishing it against one. Ratio |
That they submit is also what article 39.2 provides. Ratio |
The problem with this submission is that article 39.2 states this explicitly, by providing that a carrier who has paid compensation may seek recourse by making 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 bus... |
In contrast, article 31.1(a) in terms only confers jurisdiction against the individual defendant whose ordinary residence, principal place of business or branch or agency is relied upon. Ratio |
As to BATs submission that the last sentence of article 39.2 deals, as between carriers, with jurisdiction, and must have been seen as paralleling, also in relation to jurisdiction but here as between cargo interests and carriers, the last sentence of article 36, I do not consider that either sentence necessarily or cl... |
Both are well capable of being read as emphasising or confirming no more than that all or several carriers liable may be sued at the same time. Ratio |
BATs submission regarding symmetry also faces the objection that the claims covered by article 39.2 differ significantly in content and structure from those covered by article 31.1: (i) Article 31.1 does not only offer a claimant the jurisdiction of any individual defendants ordinary residence, principal place of busin... |
It offers the additional advantage of jurisdiction against all carriers potentially liable under article 36 (the first, the last and the performing carriers) in the place either of taking over or designated for delivery of the goods. Ratio |
No such jurisdiction is available under article 39.2 to a carrier seeking recourse from another carrier. Ratio |
(ii) Article 39.2 concerns recourse claims which fall under articles 37 and 38 to be divided pro rata, potentially between all carriers and not just the first, last or performing carrier. Ratio |
This is so, having regard to the specific provisions covering cases where more than one carrier was responsible for the loss or damage, or where it cannot be ascertained who was responsible or where a carrier otherwise liable to contribute is insolvent. Ratio |
There is an obvious imperative under article 39.2 to enable a claimant to bring all such claims in one jurisdiction. Ratio |
The same imperative does not exist under article 31.1, since cargo interests are under article 36 entitled to look to any one of the relevant carriers (first, last or performing) to meet their full claim, each being liable 100%. Ratio |
Further, in so far as cargo interests do wish to pursue all such relevant carriers together, they are able to do so in the place either of taking over or designated for delivery as stated in point (i). Ratio |
BAT rely on dicta in two Court of Appeal cases: Cummins Engine Co Ltd v Davis Freight Forwarding (Hull) Ltd [1981] 1 WLR 1363 and ITT Schaub-Lorenz Vertriebsgesellschaft mbH v Birkart Johann lnternationale Spedition GmbH & Co KG [1988] 1 Lloyds Rep 487. Ratio |
Both cases concerned recourse claims between carriers. Ratio |
In Cummins, Cummins as consignor had contracted with Davis, another English company, for the carriage of engines from England to Amsterdam. Ratio |
Davis instructed Charterway to undertake the leg from Rotterdam to Amsterdam, and Charterway in turn asked Graaf, who asked Boers to do this. Ratio |
Charterway, Graaf and Boers were all Dutch firms and all successive carriers under CMR. Ratio |
Cummins issued a writ in England against all four, but served only Davis. Ratio |
Davis issued third party proceedings to join and seek recourse from Charterway, Graaf and Boers, who applied, successfully, to have the third party proceedings set aside on the basis that under article 39.2 any recourse proceedings against them could only be in Holland. Ratio |
But at p 1371 Brandon LJ made the following general statement regarding jurisdiction in the main proceedings: It is clear from the provisions of CMR contained in Chapters V and VI that it contemplates two kinds of legal proceedings arising out of a contract of carriage. Ratio |
The first kind of legal proceedings which it contemplates are actions brought by a sender or consignee of goods against one or more carriers. Ratio |
Where successive carriers are involved, the effect of article 31, paragraph 1, combined with article 34, is that the plaintiff can bring a single action against one, more than one, or all the carriers concerned. Ratio |
Article 31, paragraph 1, further requires him to bring his action in certain courts only. Ratio |
These courts are, first, any court of a contracting state which has been agreed between the parties; secondly, the courts of the country where any of the carriers sued is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract of carriage was made; and, thirdly, t... |
It is on the basis of these provisions that, in the present case, Cummins issued a writ against four parties, Davis, Charterway, Graaf and Boers, although they have only served such writ on Davis. Ratio |
Brandon LJ went on specifically to address the recourse claims. Ratio |
In ITT Schaub-Lorenz, at p 494, Bingham LJ quoted the above passage and its continuation, and said that, although it could not be regarded as having more than persuasive authority, I think (with respect) that it is plainly right. Ratio |
Neither Cummins nor ITT Schaub-Lorenz required any precise examination of the accuracy of Brandon LJs statement that article 31.1 combined with article 34 allows a plaintiff to bring a single action against one, more than one, or all the carriers concerned in the courts of the country where any of the carriers concerne... |
Further, it is unclear by what reasoning Brandon LJ derived his summary from articles 31 and 34, the only articles which he cited. Ratio |
Article 31.1(a) does not on any view confer jurisdiction over one carrier concerned, simply because any of the other carriers concerned is ordinarily resident or has his principal place of business or relevant branch or agency in the country where proceedings are brought. Ratio |
It confers jurisdiction against a carrier who has such residence, place or branch or agency. Ratio |
It is only the last sentence of article 36 - which Brandon LJ did not mention at all - that arguably extends this jurisdiction to enable other carriers to be added to the proceedings against the carrier defendant who satisfies article 31.1(a). Ratio |
Further, in Cummins at pp 1374-1375 OConnor LJ also described the scheme of CMR in terms which were, I think, both more specific on the present issue and significantly different in effect from those used by Brandon LJ. PRE |
He said: It will be seen that the scheme of the Convention, starting in article 31, is that normally, unless the parties otherwise agree, any legal proceedings are to be originated in the jurisdiction of the defendant (article 31, paragraph 1(a)), and I am content, under the ordinary rules of interpretation, to read de... |
The only alternative there given is the place where the goods were taken over or the place designated for delivery. PRE |
The place where the goods were taken over by the carrier, in my judgment, refers to the place where the contract of carriage commenced (see article 1 of the Convention) and cannot be repeated down the line where successive carriers have participated in the carriage at various stages. PRE |
That in the present case was Scotland and the place of delivery was Holland. Ratio |
Therefore, Cummins were limited to bringing the action, as far as the jurisdiction of the defendant was concerned, either in England (Davis) or in Holland the other three. Ratio |
It is clear from this passage that OConnor LJ did not accept that Cummins could under CMR properly bring English proceedings against any defendant other than Davis, which alone fell within article 31.1(a). Ratio |
That corresponds with the case advanced by Essers and Kazemier on these appeals. Ratio |
Academic commentary also supports Essers and Kazemiers position on this point: see Professor Loewes paper, para 281, Hill & Messent, para 11.67 and KF Haak in The Liability of the Carrier under the CMR (Stichting Vervoeradres The Hague 1986), p 114, para 2, where the requirement to bring each successive carrier held li... |
The desirability of joining all possible defendants Ratio |
This brings me to a fundamental element of BATs case, the desirability of, and suggested imperative to arrive at, an interpretation or solution enabling all claims by goods interests against all carriers to be resolved in one place and one set of proceedings. Ratio |
That this can be a relevant approach is certainly borne out by article 6(1) of the Brussels Regulation, as well as, domestically, by Practice Direction 6B para 3.1(3): see para 16 above. Ratio |
But it is not an invariable approach, and it is not the approach taken in the Warsaw Convention 1929 (for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929), the language of which the relevant provisions of CMR to a large degree reflect. Ratio |
The Warsaw Convention provided: Article 28.1. Ratio |
An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or bef... |
Article 30.1. Ratio |
In the case of carriage to be performed by various successive carriers and falling within the definition set out in the third paragraph of article 1, each carrier who accepts passengers, luggage or goods is subjected to the rules set out in this Convention, and is deemed to be one of the contracting parties to the cont... |
3 Ratio |
As regards luggage or goods, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier who performed the carriage during which th... |
These carriers will be jointly and severally liable to the passenger or to the consignor or consignee. Ratio |
Under the Warsaw Convention, it is clear that article 28 defines jurisdiction, while the last sentence of article 30.3 deals, like the rest of that article, with liability by emphasising that all potentially liable carriers are jointly and severally liable for loss, damage or delay in respect of goods and luggage. Rati... |
CMR rephrases the last sentence of article 36, but not in a way which suggests that it is now intended to have the fundamentally different purpose of addressing not liability (like the rest of article 36), but jurisdiction. Ratio |
Viewing the position more generally, article 31.1 of CMR affords clearly defined heads of jurisdiction additional to those provided by the Warsaw Convention in particular jurisdiction based on any agreement between the parties to a court or tribunal in a contracting state, and jurisdiction at the place of taking over o... |
As to the Brussels Regulation, there are, unsurprisingly, parallels between some of its provisions and those of CMR. Ratio |
A defendants domicile in a member state is the general head of jurisdiction under article 2.1 of the Brussels Regulation, while article 5.5 provides a special head as regards disputes arising out of the operations of a branch or agency. Ratio |
These heads broadly parallel the heads found in article 31.1(a) of CMR. Ratio |
In other respects, there are however differences in both directions in the jurisdictions available under CMR and the Brussels Regulation. Ratio |
Article 5.1 of the Brussels Regulation offers as special heads the place of performance of the obligation in question in a contract claim or the place where the harmful event occurred in a tort claim. Ratio |
Article 31.1(b) of CMR offers in contrast the place designated for delivery, which may correspond with the place for performance of the obligation in question, if the relevant law enables suit against a carrier on the basis of a failure to deliver or to deliver in good condition at destination. Ratio |
Finally, the Brussels Regulation does not offer any general head of jurisdiction paralleling the right to sue at the place of taking over the goods conferred by article 31.1(b). Ratio |
On the other hand, coming to the nub of BATs case on this point, the Brussels Regulation contains the further special head that: 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 . Ratio |
On Essers and Kazemiers case, CMR contains no such provision. Ratio |
On BATs case, the last sentence of article 36 of CMR has an effect which is similar - similar, but necessarily wider since it would expose any successive carrier potentially liable under article 36 to being sued by cargo interests in any jurisdiction anywhere in the world which happened to be that of the principal plac... |
A lesser point, not without all practical relevance, is that BATs reading of the last sentence of article 36 would also provide an automatic ground of jurisdiction against any such carrier without the qualifying condition inserted into article 6.1 of the Brussels Regulation, that the claims should be so closely connect... |
The absence of such a qualification could be significant if, for example, a claim was brought against a first carrier based on a special term included in the original carriage contract, but not binding on a successive carrier because it was not included in the consignment note. Ratio |
In these circumstances, I do not consider that the desirability in some contexts of a provision such as article 6.1 of the Brussels Regulation or Practice Direction 6B para 3.1(1) can affect or impact on the interpretation of articles 31, 34 and 36 of CMR in any significant way. Ratio |
Equally, I do not see how it can be said that there is any gap that article 6.1 should be called upon to fill, even assuming that gap-filling by reference to the Brussels Regulation is admissible and required, in a European Union context, as Colman J thought in Frans Maas Logistics. Ratio |
The scheme of CMR appears to me to be deliberate and comprehensive. Ratio |
For better or for worse, and starting with the model of the Warsaw Convention, it elected for a generous range of heads of jurisdiction. Ratio |
There is no gap in it, as a matter of construction, merely a considered decision that the heads provided would reflect an appropriate balance between the interests of all concerned, potential claimants and potential defendants. Ratio |
Does article 6.1 of the Brussels Regulation prevail over article 31.1 of CMR? Ratio |
That leaves BATs last and perhaps most far-reaching submission, that, if all else fails, European Union law, in particular article 6.1 of the Brussels Regulation or the principle behind it, must prevail over the scheme of CMR to enable the joinder of all carriers potentially liable under article 36 in any court or trib... |
I have already outlined statements of principle made by the Court of Justice on which BAT rely (para 18 above). Ratio |
The starting point, however, must be the European Treaties. Ratio |
CMR was concluded before 1 January 1958 between states half of which are, even today, not member states of the European Union. Ratio |
Article 351 TFEU provides: The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding states, before the date of their accession, between one or more member states on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treat... |
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