Judgment of the Court of Justice of the EU (Sixth Chamber) of 25 April 2024. Joined Cases C-345/22 to C-347/22.
This year marks ten years since the Act 14/2014, dated 24th July, on Maritime Navigation (“Shipping Act”) was enacted. Among the many and different developments contained in the Shipping Act, the specialties of jurisdiction and competence, that affects to the validity -or not- of foreign jurisdiction clauses in bills of lading, are one of the issues on which more debate has been generated.
In this regard, art. 468 (Jurisdiction and arbitration clauses) reads:
Without prejudice to the terms foreseen in the international conventions in force in Spain and the provisions of the European Union, clauses of submission to a foreign jurisdiction or arbitration abroad shall be null and void and considered not to be included, as set forth in contracts for use of the ship, or in ancillary navigation contracts, when they have not been negotiated individually and separately.
In particular, insertion of a jurisdiction or arbitration clause in the printed conditions of any of the contracts referred to in the preceding paragraph shall not provide evidence, in itself, of fulfilment of the requisites established therein.
On the other hand, and as far as the effectiveness of conveyance of the bill of lading is concerned, art. 251 states that:
Conveyance of the bill of lading shall take the same effects as delivery of the goods represented, without prejudice to the relevant criminal and civil actions to which the party illegitimately dispossessed of such may be entitled. The acquirer of the bill of lading shall acquire all the rights and actions of the conveyor to the goods, with the exception of agreements regarding jurisdiction and arbitration, which shall require the consent of the acquirer pursuant to the terms stated in Chapter I of Title IX.
Last 25 April 2024, the CJUE ruled on a preliminary ruling referred to the interpretation of art. 25(1) Regulation (EU) No 1215/2012 (Recast Brussels I Regulation) in connection with above-mentioned art. 251 Shipping Act.
Article 25 Regulation 1215/2012 reads as follows:
‘1. If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing;
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
…
- An agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.
The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid.’
In the light of the above, the Spanish Court (Audiencia Provincial de Pontevedra) referred four questions to the Court of Justice for a preliminary ruling. Said four questions may be examined in two questions:
- On the one hand, by its first question, the referring court asks, in essence, whether Article 25(1) Recast Brussels I Regulation must be interpreted as meaning that the enforceability of a jurisdiction clause against the third-party holder of the bill of lading containing that clause is governed by the law of the Member State of the court or courts designated by that clause.
To this first question, the Court of Justice has ruled that article 25(1) Recast Brussels I Regulation must be interpreted as meaning that the enforceability of a jurisdiction clause against the third-party holder of the bill of lading containing that clause is not governed by the law of the Member State of the court or courts designated by that clause. That clause is enforceable against that third party if, on acquiring that bill of lading, it is subrogated to all of the rights and obligations of one of the original parties to the contract, which must be assessed in accordance with national substantive law as established by applying the rules of private international law of the Member State of the court seised of the dispute.
- On the other hand, by its questions two to four, which, according to the Court of Justice, it is appropriate to examine together, the referring court seeks to ascertain, in essence, whether art. 25(1) Recast Brussels I Regulation must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods concluded between a carrier and a shipper, who acquires the bill of lading evidencing that contract and thereby becomes a third-party holder of that bill of lading, is subrogated to all of the shipper’s rights and obligations, with the exception of those arising under a jurisdiction clause incorporated in the bill of lading, where that clause is enforceable against that third party only if the third party has negotiated it individually and separately.
To this question, the Court of Justice has ruled that art. 25(1) Recast Brussels I Regulation must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods concluded between a carrier and a shipper, who acquires the bill of lading evidencing that contract and thereby becomes a third-party holder of that bill of lading, is subrogated to all of the shipper’s rights and obligations, with the exception of those arising under a jurisdiction clause incorporated in the bill of lading, where that clause is enforceable against that third party only if the third party has negotiated it individually and separately.
We´ll see how this new rule is welcomed and interpreted by the Spanish Courts, but it seems to be clear that two main conclusions are:
- The jurisdiction clause is enforceable against a third-party holder of the b/l if, on acquiring that bill of lading, it is subrogated to all of the rights and obligations of one of the original parties to the contract, which must be assessed in accordance with national substantive law as established by applying the rules of private international law of the Member State of the court seised of the dispute, and not the law of the Member State of the court or courts designated by that clause.
- If the jurisdiction clause refers to an EU or EEA Court, regardless of whether the enforceability of that clause is against a contracting party to the b/l or to a third-party holder of that b/l, the above-mentioned arts. 468 and 251 of the Shipping Act will not apply as they are contrary to art. 25 of the Recast Brussels I Regulation and the doctrine of the CJEU.
It is important to stress that the jurisdiction clauses in dispute referred to the High Court of Justice [(England & Wales) (United Kingdom)] of London as the competent Court to hear any disputes arising from the bill of lading/s, the jurisdiction of the courts of another country being excluded. But, as the actions were brought before the end of the transition period of the Brexit, the Union law applicable shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union; otherwise Union law would not have applied, leading us to another conclusion, which is: In case of a non-EU or EEA jurisdiction clause, art. 25 Recast Brussels I Regulation and the CJEU doctrine would not be applicable, and therefore art. 468 and 251 of the Shipping Act would be applicable.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62022CJ0345&qid=1676415307361