Royal & Sun Alliance Insurance Plc & Anor v MK Digital FZE (Cyprus) Ltd & Anor

Jurisdiction for proceedings arising out of international carriage by road is governed exclusively by article 31 of the CMR. The provision is wide enough to include claims for declarations of non-liability by a goods-in-transit insurer. The court must assess whether there is a good arguable case that the contract was for carriage, having regard to its terms, the parties’ descriptions, their dealings, charging arrangements and any consignment note. Article 31(2) does not require an English action already started but not yet pending to be stayed merely because later proceedings become pending elsewhere. Where the CMR applies, forum non conveniens has no role. Parallel proceedings involving the same parties, facts, legal relationship and relief are governed by the Judgments Regulation.

The claimants sought declarations concerning liability for the theft of mobile telephones transported from France, together with related contractual and indemnity relief. Hi-Tec applied under CPR Part 11.1 for the English proceedings to be set aside for lack of jurisdiction or stayed.

The dispute concerned whether Exel had contracted as carrier or freight forwarder, whether the designated delivery place was the United Kingdom or Italy, and how the English proceedings interacted with later French proceedings. The application also raised the effect of article 31(2) of the CMR, articles 27, 28 and 30 of the Judgments Regulation, and forum non conveniens.

1. Application dismissed. The English proceedings were proceedings arising out of carriage under the CMR. Article 31(1) was wide enough to cover declarations of non-liability, including a claim by a goods-in-transit insurer.
2. The court applied the good arguable case test. It had to decide whether the English court could properly accept jurisdiction without pre-judging the substantive trial. The relevant contractual factors included the contract and instructions, descriptions of the parties’ roles, the course of dealings and performance, charging arrangements, and the CMR consignment note. On the evidence, there was a good arguable case that Exel contracted as carrier rather than freight forwarder.
3. There was also a good arguable case that the United Kingdom was the designated place of delivery. The evidence concerning the alleged Italian destination required trial evaluation, whereas the arrangements actually made by Exel strongly supported delivery to Southall.
4. Article 31(2) did not require the English action to be stayed. The court accepted the conclusion in Andrea Merzario Ltd v Internationale Spedition Leitner Gesellschaft GmbH that an English action becomes pending on service. However, the wider construction suggested by Rix LJ, under which a later pending action could require continuation of an earlier action to be barred, was not adopted. The court considered that the answer was instead supplied by articles 27, 28 and 30 of the Judgments Regulation.
5. The English court was first seised under article 30. The French and English proceedings involved the same cause of action because they arose from the same facts and legal relationship, had the same object, and a decision in either court would conclusively answer the issue raised in the other.
6. Forum non conveniens could not justify a stay. Article 31(1) of the CMR was an exclusive jurisdictional code, and the Judgments Regulation likewise left no room for that doctrine.