British American Tobacco Switzerland S.A. and Others (Claimants) Exel Europe Ltd and Others (Defendants) British American Tobacco Denmark A/S and Others (Claimants) Exel Europe Ltd and Another (Defendants)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE COOKE,Mr Justice Cooke |
| Judgment Date | 23 March 2012 |
| Neutral Citation | [2012] EWHC 694 (Comm) |
| Docket Number | Case Nos: 2011 FOLIO 1062 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 23 March 2012 |
[2012] EWHC 694 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cooke
Case Nos: 2011 FOLIO 1062
2011 FOLIO 1122
Charles Priday (instructed by Gateley LLP) for the Claimants
John Passmore (instructed by Holman Fenwick Willan LLP) for the Second and Fourth Defendants (2011 Folio 1062) and Second Defendant (2011 folio 1122)
Hearing date: 16 March 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The claimants in the two actions with which I am concerned are companies in the British American Tobacco group who claim, as owners of tobacco consignments, against road hauliers in respect of the loss or theft of part or all of those consignments in the course of carriage across Europe. The second and fourth defendants in one action, to which I shall refer as Essers Security and Essers Transport (and together collectively as Essers), and the second defendant in the other action, to which I shall refer as Kazemier, seek to set aside service of the claim form upon them on the basis that the English court has no jurisdiction by reason of the provisions of Article 31.1 of CMR as scheduled to and made part of English law by the Carriage of Goods by Road Act 1965.
It is common ground between the parties that each of these defendants had its registered office and principal place of business in Holland. Service was effected upon each of them there, it being the claimants' assertion that such service was justified under the provisions of CMR.
The Contractual Structure
In the Essers action, the primary contract of carriage was made between one of the claimant companies (BAT) and Exel Europe Limited (Exel), an English registered company, and was contained in or evidenced by a Framework Agreement between BAT (Holdings) Limited and Exel and/or a Local Agreement between another BAT company and Exel. These long-term agreements regulate the relationship between various BAT companies (including all the claimants who fall within the definition of BAT Associates in the agreements) and Exel for the provision of warehousing and distribution services in Europe. The Framework Agreement imposed various liabilities on Exel in relation to the loss of goods being carried and in relation to the standard of care and security to be followed in such carriage. Such obligations were mirrored in the Local Agreement which also imposed further obligations on Exel to comply with a Security Manual and to ensure compliance with BAT security policies.
It was recognised in clause 39.9 of the Framework Agreement that CMR would apply to certain of the services to be provided by Exel, but agreed that the terms of the Framework and Local Agreements were to apply save to the extent that they were inescapably in conflict with CMR. Both the agreements contained an applicable law and jurisdiction provision under which disputes were to be referred to the exclusive jurisdiction of the English courts. Both also contained a clause allowing BAT Associates to enforce the provisions under the terms of the Contract (Rights of Third Parties) Act 1999.
There was a subcontract between Exel and Essers Security, where the position with regard to the contractual documents was more confused. Contracts of carriage entered into by Essers Security are said to be performed by Essers Transport though it is unclear whether there is a contract of carriage between them or whether there is an agency relationship. For the purposes of the current arguments, it matters not which is the case. What is clear is that Exel subcontracted the carriage to Essers and it is accepted that Exel's Transportation Terms and Conditions applied to that contract and that those terms and conditions also contained an English law and jurisdiction clause.
A CMR note was issued in respect of the consignment naming BAT Switzerland SA as consignor, Maersk Shipping Lines Rotterdam as consignee and "Essers" as carrier. The consignment was loaded in Switzerland on 2 nd September 2011 and was allegedly stolen in an armed robbery on a motorway in Belgium on 3 rd September 2011, on its way to Rotterdam.
In the other action, the contractual arrangements are materially identical since the BAT claimants contracted with Exel on the terms of the Framework and/or Local Agreements and Exel subcontracted to Kazemier on Exel's Transportation Terms and Conditions. There were thus agreed English law and jurisdiction clauses in both the contract between the BAT company and Exel and between Exel and Kazemier.
The claim in this second action relates to a loss of a substantial part of a consignment of cigarettes in the course of carriage from Hungary to Denmark by road in September 2011. It is alleged that, despite a clear written instruction that drivers were not to use specified overnight parking areas, the vehicle driver did so and that this resulted in the theft of 18 pallets of cigarettes whilst the vehicle was parked there. In this case, it is alleged that there is not only liability under Article 17 of CMR but also that there was wilful misconduct within the meaning of Article 29.
This consignment was also covered by a CMR note which named BAT Pecsi Dohanygyar Kft as consignor, British American Tobacco A/S (House of Prince A/S) as consignee and Kazemier as carrier.
As will be apparent from the above, whilst each of the relevant contracts between BAT and Exel on the one hand and Exel and the subcontractor, Essers or Kazemier, as the case may be, on the other hand, included an English law and jurisdiction clause, there was no direct agreement between the BAT company and the subcontractor, Essers or Kazemier, let alone one which included an agreed jurisdiction clause. BAT sues Exel, as the first defendant in each action in this country, being entitled to do so because of the exclusive jurisdiction clause. Exel is, in any event, an English registered company. Whether it was bound to sue Exel in this country is a matter of dispute because of the terms of Article 31.1 of CMR.
Self-evidently, it is convenient for BAT to sue both Exel and the other defendants in the same jurisdiction and BAT asserts that, if it is not permitted to do so, there is a risk of multiple actions and inconsistent decisions of courts in different jurisdictions. It submits that there are good policy reasons therefore why it should be allowed to do so and contends that the provisions of CMR and, to the extent that the Brussels Judgment the Regulation (The Regulation) is applicable, its provisions not only permit it to do so but reflect that policy. BAT draws attention to the consent in the relevant agreements of the sub-contractors with Exel to being sued in England at the behest of Exel, although it accepts that there is no direct jurisdiction agreement made between either sub-contractor and BAT. For their part, Essers and Kazemier do not accept, were Exel to seek to join them, as sub-contractors, in the respective actions in this country, that the English court would recognise the exclusive jurisdiction clauses as founding jurisdiction over those parties, because of the terms of Article 39 of CMR which, it is common ground, governs the jurisdictional position as between carriers. That argument may await another day.
What, however, in my judgment, is clear is that, where CMR applies, the parties cannot contract out of its provisions (see Article 1 of CMR). Neither party suggested otherwise. Thus the acceptance in an agreement between any parties of the jurisdiction of a particular court may add to the jurisdictions which are permitted by CMR but cannot detract from the parties' rights or obligations to make a claim in the courts for which CMR expressly provides.
The Issues
The question of jurisdiction turns upon the construction of Article 31 of CMR and its relationship with Articles 34, 36 and 39, the structure of CMR, and the inter-relationship between CMR and the Regulation which imposes a jurisdiction and enforcement scheme as a matter of EU Law and has direct effect in Member States such as the United Kingdom.
BAT submits that the scheme of CMR requires that, where a claimant can commence proceedings against any one carrier in accordance with the provisions of Article 31, it can also sue any other carrier which it is entitled to sue under Article 36, in the same action, in that jurisdiction. This is said to arise from the terms of those Articles and the policy which underlies Article 39—the need to avoid multiple proceedings and the risk of inconsistent judgments by different courts in different jurisdictions. Alternatively, the wording of Article 31 must be construed flexibly to achieve this result, when considering "the branch or agency through which the contract of carriage is made" or "the court…designated by agreement between the parties". Ultimately, if the desired result cannot be achieved by construction, then the Court should apply the Regulation and the principles which underlie it to make good the deficiency in CMR in order to ensure the sound administration of justice, the...
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