Institution on the basis of successive carriers CMR greatly simplifies the victim claims for damage in shipment – at the same time makes it possible to sue a number of carriers. Often, however, these carriers are based in different countries, which may give rise to doubts as to the court competent to hear the case against several defendants. With this issue the court faced the English in an interesting judgment described in the pages of the last number European Transport Law.
Facts
The facts are recognized, including two cases (described by me in a simplified) did not differ significantly from the number of such cases. English company concluded a contract of carriage with the English carrier, where there is provision for an English court. Contracting carrier contracts immediately podzlecił two Dutch carriers, but in these agreements also included a provision for an English court. During transport services between Switzerland and Belgium in one case, and Hungary and Denmark in the second case there was damage. English company therefore requested the English court against the English and Dutch carriers, Recognizing that they were carriers sukcesywnymi.
Allegations carriers
Both carriers challenged the jurisdiction of the Dutch court's English, stating, did not conclude any agreement with the plaintiff as to the jurisdiction of the, the jurisdiction of the English court can not be determined on the basis of art. 31 paragraph. 1 lit a lub b CMR, because the defendants are based in the Netherlands, and both the place of taking over of the goods and the planned place of delivery were outside England.
The position of the plaintiff
Reason said, that if the provisions of the Convention (art. 36) give him the right to sue several successive carriers, rules on jurisdiction (art. 31) should be interpreted in such a way, to allow the plaintiff to investigate the claims against all the successive carriers in one country, to avoid the various decisions in one case, especially since such a possibility is expressed in the case of recourse between carriers in art. 39 Convention.
Moreover, according to the plaintiff if the Dutch joined the carriers contract of carriage (according to art. 34), thus began to write the English court in the contract between the plaintiff and the main carrier.
In addition, since the original contract of carriage has been concluded by the principal carriers of Dutch, should be treated as an agent of the payer. This would mean, finds that the use of art. 31 paragraph. 1 lit. a CMR which is, that the matter may be referred to the court, where is the agency, a contract of carriage.
Reason also relied on the provisions of Regulation 44/2001 on jurisdiction and the recognition and enforcement of civil and commercial matters allow sued several other participants to the court competent for one of them.
The decision of the court
Plaintiff's arguments were not recognized by Mr.. Justice Cooke’a z High Court of Justice, Queens Bench Division (Commercial Court) to settle the matter. It held, that art. 31 CMR does not give rise to sue several successive carriers to one court, if the court is not right for all defendants. Such a right is apparent right from art. 39 CMR for recourse, and so, conversely, in the absence of such a provision in art. 31 CMR plaintiff's theory can not be justified.
The judge did not agree with the view, that since the contract of carriage between the carrier and the main reason for writing to the court include English carriers are closely linked to it gradually. He drew attention because, that under art. 34 CMR successive carrier accede to the contract under the conditions described in the consignment. In this case, while the bill of lading there was no mention of the jurisdiction of the English court (Moreover, in practice, these references are almost never appear).
Similarly complaint was treated, agreement that the carrier was concluded by an agent in England. The reliance by the plaintiff on the provisions of Regulation 44/2001 proved to be ineffective, as the judge pointed out the priority provisions of the Convention on jurisdiction and the rules of Regulation.
The judge also stressed, contrary to the claim of the plaintiff that there will be no danger of the various decisions in cases heard by various courts. Reason could in fact refer the matter to the competent court where the cargo for carriage or intended place of delivery. This court is in fact responsible for all carriers successive. That's the reason he decided on a different court, and should not impose other consequences of your choice.
Weight settlement
What meaning can be cited for the Polish reader? You can not hide, that the Polish courts rarely apply successive carriers institution, So in the proceedings before the Polish court to rely on the contested judgment may not have any effect. But keep in mind, Polish carriers that also tend to be sued in the courts of other countries, often just as carriers gradually. In this case, said the decision could help them in rejecting the application addressed to the wrong court.
Pleasant reading
I have to admit, I agree with the decision of the court - there is no basis, to jurisdiction over a successive carrier extend to all other. My high score of the judgment, however, is not merely the validity (in my opinion) settlement. Reason is because at a very high level, contains references to a number of judgments, both domestic and foreign. To the arguments of the parties, each point is discussed in detail, and the court convincingly shows, why some of the arguments were not his discretion. It is difficult to refrain from a sigh: if only with such justifications meet every day ...
I like to read English decision yet for one reason. In most of them you can see the judgment of personal character, what is the best proof, that the judgment is considered to be the judge and not the judgment of the court. Also in this ruling the judge repeatedly referred to the view of other judges contained in the judgments, not to the same judgments. The charm of the judges is also calling Mr.. Mrs. lub. Justice względnie Lord Justice. In the end, it's always nice if in the judgment of the names already concluded is justice 🙂
In this case, additional flavor is, that the plaintiff was represented by the law firm Gateley LLP, in which the processes in the field of transport is widely understood to Andrew Messent co-author of an excellent comment to the CMR Convention. Meanwhile, his argument the defendants in this case relied largely on the commentary is, a Andrew (I had the pleasure to meet you on the occasion of the process, in which there is on the other side) This time he had to fight with their own views 🙂
Wyrok High Court of Justice, Queens Bench Division (Commercial Court) of 23.03.2012
Judge: Mr. Justice Cooke
Ref. [2012] EWHC 694 (Comm)
Published: European Transport Law 2012 no 4 s. 431 i nast.
Argument: Although according to the art. 36 CMR the owner of the goods may bring an action against the first carrier at the same time, the last carrier and the carrier responsible for the loss, This provision does not authorize him to file a suit in a court of law, when art. 31 CMR court expressly determines, before you can sue the individual defendants
Unfortunately, the courts in Poland are more unpredictable. Often, for example, the court. Katowice pronounces judgment quite different than in Czestochowa and Warsaw. Sometimes even the best lawyer is helpless on the interpretation of the law by our courts.
In such situations, the problem will always have small carriers, can not afford to further appeal in higher courts.
But I must admit, entrepreneurs that the main problem is the lack of long-term cooperation with prawanikiem, which swept send trainees everywhere, talking with customers, and together with the litigation strategy sets – both legal and przedsądowych.
Unfortunately, I have to completely agree with this statement. This is especially true in matters of transport, where the courts do not always have access to the case law and comments, especially with regard to the CMR Convention. Decisions is then shot, really big. The only thing in this situation can do is to try to always be adjusted to a worse interpretation of the provision and prepare for this. Of course, if this is possible. I also agree, that constant contact with a lawyer helps, especially when it comes to the development of procedures, which will allow to avoid the often huge losses in the future.
Good morning, Sir Paul and what regulates the court in which the client may sue the carrier for such. receivables, withstand vehicle or any other additional costs ?
It depends on what the issue – if the international carriage, The Convention regulates the.