The UK Supreme Court on jurisdiction over successive CMR carriers and European Union Rules

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Abstract

In the recent case of British American Tobacco Switzerland SA and others v Exel Europe Ltd and others the English courts had to decide on the application and interpretation of the jurisdiction rules of the CMR on successive carriers, as well as reassess the interaction between the jurisdictional rules of international transport conventions and EU law. The CMR question was whether successive carriers could be joined to the action against the primary carrier by virtue of the defendant’s primary carrier’s domicile within the jurisdiction even though the successive carriers themselves had no connection to England. Alternatively the questions was whether a jurisdiction agreement between the cargo claimant and the primary carriers could be extended to the successive carriers, or further whether the primary carrier’s place of business could constitute the branch or agency through which the successive carriers contracts were made. The final submission of the claimants suggested that the jurisdictional rules of the CMR had to be supplemented by those of the Brussels I Regulation in order to allow for suit of all defendants at the domicile of one of them, here the primary carrier within the English jurisdiction. The judge at first instance rejected these bases of jurisdiction, the Court of Appeal however agreed, whereas the Supreme Court declined jurisdiction on all grounds and reinstating the Order of the judge at first instance. The reasoning in these decisions is of interest both in the context of the CMR and as well in respect of the interaction of jurisdictional rules between the CMR and the Brussels I /Brussels I bis Regulation, which also draws on the case-law of the CJEU.With respect to the latter, the Court of Justice of the European Union has handed down several preliminary rulings relating to transport law and the interaction of carriage conventions with the Brussels I Jurisdiction Regime. While the general rule is clear, that the Brussels I Jurisdiction Regime is to step back to allow application of the specialised rules of specialised conventions, the exact application of this principle has been fraught with difficulty and so far was explored by the CJEU in The Tatry , TNT Express Nederland BV v AXA Versicherung AG, Nipponkoa Insurance v Inter-Zuid Transport and Nickel & Goeldner Spedition GmbH v “Kintra” UAB. In BAT v Exel, the UK Supreme Court added its view on the matter. After discussing the UK Supreme Court’s decision in BAT v Exel in light of the relevant CJEU case-law, this paper further investigates the question of interaction of the jurisdiction regimes of specialised transport conventions and Brussels I. It concludes that the import of Brussels I rules should be limited to a “second or negative stage” review only, without interfering with “direct, positive” allocation of jurisdiction by specialised conventions.
Original languageEnglish
Pages (from-to)487-509
Number of pages23
JournalUniform Law Review
Volume(2017) 21
Issue number4
DOIs
Publication statusPublished - 16 Jan 2017

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