Carriage Of Goods By Road: Court Of Appeal Clarifies Jurisdiction Provisions Of The CMR Convention

British American Tobacco Switzerland S.A. and Others v. (1) Exel Europe Ltd; (2) H Essers Security Logistics B.V. and others; British American Tobacco Denmark A/S and Others v. (1) Exel Europe Ltd; (2) Kazemier Transport B.V. [2013] EWCA Civ 1319

The Court of Appeal has held that a cargo owner who had entered into a CMR contract of carriage with a carrier based in England, and who had agreed exclusive English jurisdiction for disputes arising out of the contract of carriage, could bring proceedings in England not only against that carrier, but also against successive carriers to whom the primary carrier had delegated the responsibility of the carriage in question. Those proceedings could be brought in England notwithstanding that the successive carriers were not parties to the contract of carriage between the cargo owner and the primary carrier, and notwithstanding that they had no connection with England, and notwithstanding that the cargo had no connection with England.

The background facts

The Claimants/Appellants were British American Tobacco Switzerland A/S and British American Tobacco Denmark A/S (together "BAT"). BAT contracted with Exel Europe Limited ("Exel") to carry cargoes of tobacco around Europe by road. In the present case, BAT Switzerland A/S contracted with Exel to move tobacco from Switzerland to Rotterdam, and BAT Denmark A/S contracted with Exel to move tobacco from Hungary to Denmark. The agreement contemplated that the CMR would apply to the movements. The agreement further provided that Exel - although primary carriers - could subcontract some or all of the movements to approved sub-contractors (or "successive carriers" using the wording of the CMR). Finally, the agreement expressly provided that all disputes arising out of the agreement would be subject to English law and to the jurisdiction of the English High Court.

In the event, Exel did sub-contract both movements. The Switzerland-Rotterdam movement was sub-contracted to H Essers Security Logistics B.V. and subsidiaries (together "Essers"), and the Hungary-Denmark movement was subcontracted to Kazemier Transport B.V. ("Kazemier"). The Switzerland-Rotterdam tobacco was loaded in Switzerland on 2 September 2011, and was allegedly stolen in an armed robbery on a motorway in Belgium the next day. The Hungary-Denmark tobacco was loaded in Hungary on 15 September 2011, and 18 pallets were stolen while the vehicle was parked overnight (it is alleged that instructions...