It is still the position that senders of goods that are stolen or lost may pursue a claim against the first, last or actual CMR carrier in whichever country that the carrier is located. However, a UK Supreme Court decision prevents other, foreign carriers being added as defendants if the UK is not where the goods were taken over or where they should have been delivered, and when there has been no agreement between the parties.
Article 31 of the CMR Convention provides that the claimant can bring proceedings in any court of a contracting state designated by agreement between the parties and, in addition, in the courts of a country within whose territory:
"(a) the defendant is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract of carriage was made, or
(b) the place where the goods were taken over by the carrier or the place designated for delivery is situated, and in no other courts or tribunals."
In British American Tobacco Denmark A/S and others v Kazemier Transport BV, and British American Tobacco Switzerland SA v H Essers Security Logistics BV and another [2015] UKSC 65, each claimant was a company in the British American Tobacco Group which contracted with an English company, Exel Europe Ltd, for the carriage of a container of cigarettes. The contracts provided for English law and exclusive jurisdiction. Exel subcontracted the carriage of each container to Dutch companies, on similar terms as to English law and jurisdiction. The first container was allegedly hijacked in Belgium while en route from Switzerland to the Netherlands and the contents of second container disappeared when parked overnight in Denmark while en route from Hungary.
The claimants brought proceedings in England against Exel as well as seeking to join the Dutch sub-contractors to the proceedings. The claimants argued that jurisdiction in England could be found against sub-contractors as successive carriers within the meaning of Article 34 and Article 36 of the CMR Convention, by relying on the presence in England of, and the proceedings brought against, the main contractors and/or upon the provision in the main contract for English jurisdiction. The Supreme Court disagreed and set aside the service of the claim against the sub-contractors. The Supreme Court said that Article 31 provides a complete code and that Article 36 does not provide an additional jurisdiction.
The decision has not changed a positon in circumstances where the carrier or successive carrier is English, has submitted to English jurisdiction or the goods were stolen in England. To minimise issues, cargo senders could consider ensuring that all carriers submit to English jurisdiction.
Please contact Darren Kenny, Ben Griffin and Stephanie Sandford-Smith.
