Mar -Train Heavy Haulage Ltd v Shipping.Dk Chartering A/S (t/a Frank&tobiesen A/S) & Ors

For jurisdiction under Article 23 of Regulation (EU) 44/2001, the claimant must show a good arguable case that the parties consented to the jurisdiction clause in one of the forms recognised by the Article. The court must be satisfied, on the material available, that there is a much better argument for consensus than against it.

Whether a freight forwarder contracted as agent or principal is a matter of overall commercial impression. Relevant considerations include the contractual terms, descriptions of the parties’ roles, prior dealings, the basis of charging and, where relevant, the CMR note. A contemporaneous project document describing the forwarder as the principal’s agent, supplied to and not challenged by the principal, may be particularly powerful evidence.

Mar-Train, an Irish road haulier, sought to maintain proceedings against F&T, a Danish freight forwarder, arising from the loss of a wind-turbine nacelle during transport in Ireland. F&T applied to set aside service and sought a declaration that the court lacked jurisdiction.

Mar-Train relied on English jurisdiction clauses in the RHA 1998 terms governing its contract with ALS, an English company engaged by F&T, and in the BIFA 2005 terms governing ALS’s dealings with F&T. The central questions were whether the RHA terms applied, whether ALS acted as F&T’s agent when contracting with Mar-Train, and whether F&T had consented to English jurisdiction for the purposes of Article 23 of Regulation (EU) 44/2001.

1. Application dismissed. F&T’s application to set aside service and obtain a declaration that the court lacked jurisdiction failed.
2. Mar-Train had to show a good arguable case that the requirements of Article 23 were met. Following the approach summarised from Bols Distilleries v Superior Yacht Services and Antonio Gramsci Shipping Corp v Lembergs, this required a much better argument that the jurisdiction agreement had been the subject of clear and precise consensus.
3. There was a good arguable case that Mar-Train contracted with ALS on the RHA 1998 terms, which contained an English jurisdiction clause. F&T also conceded that there was a good arguable case that ALS contracted with F&T on the BIFA 2005 terms, which contained an English jurisdiction clause.
4. Whether ALS acted as F&T’s agent or as principal was a matter of overall impression. The court considered the contractual wording, descriptions of the parties’ roles, prior dealings and the nature and basis of charging. The BIFA terms were neutral on the issue, although they demonstrated that ALS had actual authority to act as F&T’s agent.
5. The project Operation Manual was the most significant evidence. It repeatedly described ALS as acting as F&T’s agent, was generated for the project, was supplied to F&T and Siemens, and was not challenged. References to ALS as a subcontractor and the invoicing arrangements pointed in the opposite direction but were less persuasive when the evidence was assessed as a whole.
6. The alternative submission that Article 23 required only unilateral consent was not decided. The judge considered the issue unnecessary to the result and declined to express a view on whether the relevant passage in Aeroflot v Berezovsky was obiter or wrong.
7. The application therefore failed. The parties were invited to provide agreed corrections and a draft order.