British American Tobacco Denmark A/S and Others v Kazemier Transport BV; British American Tobacco Switzerland SA v H Essers Security Logistics BV and another
| Jurisdiction | England & Wales |
| Judge | Lord Mance,Lord Neuberger,Lord Sumption,Lord Reed,Lord Clarke |
| Judgment Date | 28 October 2015 |
| Neutral Citation | [2015] UKSC 65 |
| Date | 28 October 2015 |
| Court | Supreme Court |
[2015] UKSC 65
Lord Neuberger, President
Lord Mance
Lord Clarke
Lord Sumption
Lord Reed
Appellants
John Passmore QC
(Instructed by Holman Fenwick Willan LLP)
Respondents
Charles Priday Benjamin Parker
(Instructed by Gateley UK)
Heard on 29 June 2015
( with whom Lord Neuberger, Lord Clarke, Lord Sumption and Lord Reed agree)
Cigarettes attract smokers, smugglers and thieves. In the two appeals now before the court, one container load was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express instructions near Copenhagen en route between Hungary and Vallensbaek, Denmark.
The consignors are claiming against English main contractors who undertook responsibility for the carriage and against sub-contractors in whose hands the cigarettes were when the alleged losses occurred. The carriage was subject to the Convention on the Contract for the International Carriage of Goods by Road 1956 ("CMR"), given the force of law in the United Kingdom by the Carriage of Goods by Road Act 1965.
Although the Act only incorporates the English language version, CMR was agreed at an international level in English and French, each text being equally authentic. Lord Wilberforce said this about the proper approach to its interpretation in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, 152D–F:
"I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation: Stag Line Ltd v Foscolo, Mango and Co Ltd [1932] AC 328, per Lord Macmillan, at p 350. Moreover, it is perfectly legitimate in my opinion to look for assistance, if assistance is needed, to the French text. This is often put in the form that resort may be had to the foreign text if (and only if) the English text is ambiguous, but I think this states the rule too technically. As Lord Diplock recently said in this House the inherent flexibility of the English (and, one may add, any) language may make it necessary for the interpreter to have recourse to a variety of aids: Carter v Bradbeer [1975] 1 WLR 1204, 1206. There is no need to impose a preliminary test of ambiguity."
It appears that some 55 states have ratified, or acceded or succeeded to participation in CMR, of which half are states not members of the European Union, including states as wide-spread as Azerbaijan, Kazakhstan, Kyrgystan, Jordan, Mongolia, Moldova, Morocco, Syria, Tajikistan, the former Yugoslav Republic of Macedonia and Uzbekistan. There is no international court to which national courts may refer issues of interpretation of CMR.
The present appeals each involve the issue whether the consignors can found jurisdiction in England not only against the main contractors but also against subcontractors as successive carriers within the meaning of CMR, by relying on the presence here of, and the proceedings brought against, the main contractors and/or upon a provision in the main contract for English jurisdiction. 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. 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. 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 limit of liability otherwise provided under Chapter IV of CMR (see articles 23 and 29).
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. 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. The matter now comes to this court with our permission.
The two consignors were companies in the British American Tobacco group. They are respondents on the appeal and have been referred to together as "BAT". 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.
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"). All the appellants are ordinarily resident in and have their principal place of business in the Netherlands. Essers Security was engaged by Exel to carry the first container, and maintains that it in turn engaged Essers Transport to do this. Kazemier was engaged by Exel to carry the second container.
Two CMR consignment notes are before the court. In relation to the first container, we have the consignor's 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. In relation to the second container, we have the carrier's 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. It is signed by a chauffeur, presumably Kazemier's driver, and, on receipt of the container at destination on 20 September 2011, by the Danish company with a notation regarding the missing cartons.
There is much common ground between the parties. 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 connection" with it. 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. Second, the arrangements between each BAT consignor and Exel constituted a contract for carriage by Exel within the meaning of CMR. 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 carrier and the carrier performing the carriage at the time of the loss of the second container.
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, under the terms of the consignment note, by reason of his acceptance of the goods and the consignment note."
In the French version (equally authentic at an international level), that reads:
"Si un transport régi par un contrat unique est executé par des transporteurs routiers successifs, chacun de ceux-ci assume la responsabilité de exécution du transport total, le second transporteur et chacun des transporteurs suivants devenant, de par leur acceptation de la marchandise et de la lettre de voiture, parties au contrat, aux conditions de la lettre de voiture."
Article 35 gives a further indication as to how this system is envisaged as working. It provides:
"1. A carrier accepting the goods from a previous carrier shall give the latter a dated and signed receipt. He shall enter his name and address on the second copy of the consignment note. 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. The provisions of article 9 shall apply to the relations between successive carriers."
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. In this connection, the present parties are content to proceed on the basis, said in Professor Malcolm Clarke's work ...
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