British American Tobacco Denmark A/S and others v Kazemier Transport BV

Article 31.1 of the Convention on the Contract for the International Carriage of Goods by Road is a complete jurisdictional code for claims against successive carriers. A jurisdiction agreement binds a successive carrier only if it appears in the consignment note or the carrier otherwise agrees to it.

Jurisdiction based on a defendant’s residence, place of business, branch or agency is defendant-specific. Article 36 permits concurrent claims against carriers but creates no additional jurisdiction. The Brussels I rules neither fill a gap in this comprehensive scheme nor override it where the Convention’s balanced jurisdictional regime does not compromise a fundamental principle of Union law.

Two tobacco consignments carried under the Convention on the Contract for the International Carriage of Goods by Road were allegedly lost or partly stolen in Belgium and Denmark. The consignors sued the English main contractor and sought to join Dutch subcontractors as successive carriers in England.

Cooke J set aside service on the subcontractors: [2010] EWHC 694 (Comm); [2013] 1 WLR 397. The Court of Appeal reversed that decision: [2013] EWCA Civ 1319; [2014] 1 WLR 4526.

The Supreme Court considered whether English jurisdiction arose from the first carrier’s presence, the jurisdiction clauses in the original carriage contracts, the branch-or-agency provision, article 36, or the Brussels I regime.

1. Appeals allowed unanimously. Lord Mance gave the leading judgment, with which all members of the court agreed. Article 31.1 of the Convention on the Contract for the International Carriage of Goods by Road applies to claims against successive carriers and supplies a complete, carefully delineated jurisdictional code. Cooke J’s orders setting aside service on the Dutch carriers were restored.

2. A successive carrier becomes party to the original contract under article 34 only on the terms or conditions recorded in the consignment note. A jurisdiction clause agreed between the consignor and first carrier therefore binds a successive carrier only if the note identifies it or the carrier agrees to it independently. Imposing undisclosed contractual terms would be inconsistent with the general principle that contractual obligations depend upon agreement.

3. Article 31.1(b) permits every carrier liable under article 36 to be sued where the goods were taken over or where delivery was designated. Those connecting factors concern the transportation operation itself. By contrast, residence, principal place of business, and branch or agency under article 31.1(a) relate to the particular defendant. A claimant cannot use one carrier’s connection with a country to establish jurisdiction over another.

4. The relevant branch or agency is a branch or agency of the defendant through which the original carriage contract was made. The first carrier was not an English branch or agent through which the Dutch successive carriers contracted. They became parties by accepting the goods and consignment notes abroad.

5. The concluding words of article 36 establish concurrent liability and allow proceedings against several eligible carriers at the same time. They regulate whom cargo interests may sue, not where proceedings may be brought. They do not extend the jurisdiction conferred by article 31.1. Articles 37 to 39 reinforce that conclusion because article 39.2 makes separate and express provision for multi-party recourse proceedings among carriers.

6. Article 6(1) of the Council Regulation (EC) No 44/2001 did not supply a missing jurisdictional rule. The Convention’s scheme was deliberate and comprehensive. Nor did Union law override it. Unlike the European authorities concerning competing proceedings and mutual recognition, these claims presented no risk of inconsistent judgments between the same parties and implicated no fundamental Union principle requiring displacement of article 31.1.

1. United Kingdom Supreme Court: Allowed the carriers’ appeals unanimously and restored Cooke J’s orders setting aside service: [2015] UKSC 65.
2. Court of Appeal: Reversed the first-instance decision and held that English jurisdiction could extend to the successive carriers: [2013] EWCA Civ 1319; [2014] 1 WLR 4526.
3. High Court, Commercial Court: Cooke J set aside the proceedings against the successive carriers: [2010] EWHC 694 (Comm); [2013] 1 WLR 397.