British American Tobacco Switzerland S.A. & Ors v Exel Europe Ltd

Under the CMR, a cargo claimant may sue a primary carrier in a court having jurisdiction under article 31.1 and join in the same action a successive carrier whom article 36 permits it to sue. Article 36 is not merely a joinder provision requiring separate jurisdiction against every successive carrier. Read purposively with articles 34 and 39.2, it permits jurisdiction over the successive carrier where the primary carrier is properly within the court’s jurisdiction, whether by agreed forum or presence. The court left open whether the same result follows where jurisdiction rests only on another successive carrier. It also left undecided the scope of the branch-or-agency limb and the binding effect of a primary-carrier jurisdiction clause.

British American Tobacco companies brought two actions against Exel Europe Ltd and successive carriers involved in international carriage of tobacco. Exel accepted English jurisdiction under framework and local agreements containing English jurisdiction clauses. Essers and Kazemier, the successive carriers, challenged jurisdiction under CMR article 31.1, arguing that they could be sued only where they were present or where the goods were taken over or due to be delivered.

The appeals were brought from Cooke J’s decision in the Commercial Court, reported at [2012] EWHC 694 (Comm). The central issue was whether article 36 permitted the successive carriers to be joined in England because the primary carrier was within the English jurisdiction.

Both appeals were allowed. The court declared that there was English jurisdiction over BAT’s claims against Essers and Kazemier.

1. Articles 31.1 and 36 of the CMR had to be construed together. Article 31 appeared in the chapter concerning claims and actions, before the CMR introduced the concept of successive carriers. Article 34 made a successive carrier party to the single contract of carriage upon accepting the goods and consignment note. Article 36 limited cargo claims to the first, last or performing carrier, and its provision permitting one action against several such carriers was jurisdictional, not merely procedural.
2. Where the primary carrier was properly within the jurisdiction under article 31.1, whether through an agreed forum or its presence in the relevant country, the successive carriers falling within article 36 could be joined in the same action. Article 31.1 did not require a separate jurisdictional basis against each successive carrier.
3. A contrary reading would reduce article 36’s same-action wording to near-banity and create an anomaly with article 39.2, which permitted proceedings against all concerned carriers where jurisdiction existed over one. The taking-over and delivery alternatives in article 31.1(b) did not provide a complete answer. Article 31.2 was also limited to proceedings between the same parties.
4. The CMR, as an international convention, was to be interpreted by its natural language read in the context of the Convention as a whole and given a purposive interpretation. The approach in Hatzl v XL Insurance Co Ltd [2009] EWCA Civ 223 supported that method. The principles of the Judgments Regulation and the ECJ authorities provided additional support, but it was unnecessary to decide whether they filled any gap or prevailed in the event of conflict.
5. The court did not decide BAT’s alternative arguments concerning the branch or agency through which the contract was made or whether the primary jurisdiction clause bound the successive carriers. Exel’s presence in England was sufficient.

Sir Timothy Lloyd agreed with Sir Bernard Rix. Lord Justice McFarlane agreed.

• Court of Appeal (Civil Division) Appeals allowed. English jurisdiction declared over the claims against the successive carriers.
• High Court of Justice, Commercial Court Cooke J accepted the successive carriers’ jurisdiction objections in the decision reported at [2012] EWHC 694 (Comm).