In the matter of British American Tobacco Switzerland SA v (1) Exel Europe Ltd & (2) Ors 1, the Court of Appeal was asked to examine the question of choice of jurisdiction in a claim against successive road carriers under the CMR Convention2.
British American Tobacco (BAT), the goods owner, contracted with Exel Europe Ltd (Exel), a company registered in England, for the provision of warehousing and distribution services. The agreement between BAT and Exel was governed by English law and subject to exclusive English jurisdiction.
The goods in question consisted of two consignments of tobacco to be carried by road, one from Switzerland to Holland, and the other from Hungary to Denmark, and CMR notes were issued for each consignment.
Exel sub-contracted the transport of the goods to two Dutch carriers, H Essers Security Logistics BV (Essers), and Kazemier Transport BV (Kazemier). Both sub-contracts contained an English law and jurisdiction clause, but neither made reference to Exel's contract with BAT.
During the transit, the first consignment was allegedly stolen in Belgium, and a substantial part of the second allegedly disappeared somewhere between Hungary and Denmark.
High Court proceedings
BAT started proceedings in the English court against Exel and the sub-contractors, Essers and Kazemier.
Essers and Kazemier, both challenged the jurisdiction of the English courts, invoking Article 31(1) of the CMR.
Article 31(1) provides:
"In legal proceedings arising out of carriage under this Convention, the plaintiff may bring an action in any court or tribunal of a contracting country designated by agreement between the parties and, in addition, in the courts or tribunals of a country within whose territory
the defendant is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract of carriage was made, or the place where the goods were taken over by the carrier or the place designated for delivery is situated, and in no other courts or tribunals."
Essers and Kazemier argued that England was neither their principal place of business, nor did they make the contract of carriage in an English branch or agency.
Furthermore, they did not take over the goods in England and the delivery place was not England. Consequently, they contended, the English court had no jurisdiction over them, and they could only be sued where they were present (Holland), where the goods had been...