The UK Supreme Court has recently given judgment1 considering the jurisdiction provisions in the Convention on the Contract for the International Carriage of Goods by Road ( CMR Convention).
The CMR Convention
CMR is an international convention covering the carriage of goods by road. Some fifty five nations in Europe and Asia have acceded or otherwise participate in CMR. CMR is given the force of law in the United Kingdom by the Carriage of Goods by Road Act 1965.
It might be thought that the jurisdiction agreed in the single contract referred to in Article 34 would apply to any action brought against all carriers as contemplated in the concluding words of Article 36. However the question raised in the recent case of British American Tobacco Switzerland SA v Essers was whether this is consistent with Article 31.1 which states:
(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.
The facts in British American Tobacco Switzerland SA v Essers
This case, like many other CMR cases, involved the theft of consignments of cigarettes – hence the statement “Cigarettes attract smokers, smugglers and thieves” that opened the judgment.
BAT engaged Exel to transport two consignments of cigarettes variously from Switzerland to the Netherlands and Hungary to Denmark. The agreement between BAT and Exel provided for the English courts to have exclusive jurisdiction. Exel in turn engaged respectively Essers and Kazemier as successive carriers. The consignment notes signed by the successive carriers made no mention of jurisdiction.
In separate unconnected incidents both consignments were stolen.
BAT issued proceedings in the English Courts in accordance with the provisions of its agreement with Exel. An issue before the Supreme Court was whether BAT could found jurisdiction in England not only against the main contractors Exel but also against the sub contractors Essers and Kazemier as successive carriers within the meaning of CMR by relying on the provision for English jurisdiction in the main contract between BAT and Exel.
The Supreme Court held that the contracts to which the successive carriers became party did not include the English jurisdiction clause as it was not referred to in the consignment notes. It the words of judgment:
Since it is also common ground on these appeals that …. (Esser and Kazemier) … were successive carriers, it follows that they must, under article 34, have become party to the respective contract or contracts of carriage made between BAT and Exel. If the matter stopped there, that would on the face of it mean party to those contracts whatever their terms. 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”,
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. To do so would involve an unfamiliar and undesirable invasion of the general principle that contract depends on agreement. …. 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. 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.
Article 31.1 was considered as a complete code that established jurisdiction either as agreed between the parties or at the place where the defendant was present or at the place of consignment or the contractual place of delivery was situated “and in no other courts and tribunals”. Critically there was no provision for jurisdiction to be exercisable against “necessary or proper parties” who did not fulfil the criteria detailed in Article 31.1.
In the absence of the successive carriers’ agreement English jurisdiction could not apply as neither of the other alternatives listed in Article 31.1 were applicable.
The Court also concluded that the words ” an action may be brought at the same time against several of these carriers” in Article 36 did not change the situation as that article was not concerned with jurisdiction and does not confer jurisdiction that does not otherwise exist.
Accordingly the successive carriers were not bound by the English jurisdiction clause.
1 British American Tobacco Denmark A/S and others (Respondents) v Kazemier Transport BV (Appellant)
British American Tobacco Switzerland SA (Respondents) v H Essers Security Logistics BV and another (Appellants)  UKSC 65