Audiencia Provincial de Pontevedra, Sección 1ª, auto de 28/01/2010 19/2010
Decision by national courts in the field of European Union law — ECLI:ES:APPO:2010:28A
Date: 2010-01-28
Subject matter: Judicial cooperation in civil matters
Origin: Spain

82010ES0128(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The insured of the claimant (sender) contractually transferred the maritime shipment of goods to a company (forwarding agent) which in turn transferred it to another company (carrier). Due to damage to the goods in transit, the insurer of the sender, which had since entered into the rights and obligations of its insured, sued the forwarding agency before the Juzgado de lo Mercantil of Pontevedra (ES). The defendant challenged the international jurisdiction of the court with reference to a jurisdiction clause contained in the bill of lading in favour of the courts in Marseille (FR). The claimant lodged an appeal to the Audiencia Provincial of Pontevedra (ES) and claimed that the action was based upon a contract to produce a result concluded with the forwarding agent which referred to general terms and conditions of business which contained a jurisdiction clause in favour of the courts of the place of performance (Vigo). Thereby, it concerns a separate contract which is independent of the likewise existing contract between the forwarding agent and the carrier.
The Audiencia Provincial of Pontevedra (ES) dismisses the appeal. The sued forwarding agent may be held to the clause contained in the bill of lading as the original party tasked with the transport. Had, however, the forwarding agent merely acted as an intermediary between the sender and therefore the contract had only been concluded between the latter two, the jurisdiction clause in the bill of lading would not apply, but rather the conditions in the contract to produce a result would be applicable. Finally, the insurer of the sender may be held to the jurisdiction clause contained in the bill of lading, since it has entered into the rights and obligations of its insured.