Audiencia Provincial de Barcelona, Sección 15ª, auto de 18/03/2009 65/2009
Decision by national courts in the field of European Union law — ECLI:ES:APB:2009:4315A
Date: 2009-03-18
Subject matter: Judicial cooperation in civil matters
Origin: Spain

82009ES0318(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
As part of the transport of goods, the insurer of the consignee of the cargo sued the shipping company contracted by the insured policyholder to carry out a multimodal transport, which in turn subcontracted the maritime portion of the transport to a shipping agent of Swiss nationality, in the Juzgado de lo Mercantil of Barcelona (ES). The insurer demanded indemnification for damages caused to the goods during the maritime portion of the transport. The defendant contested jurisdiction on the basis of a clause included in the bill of lading that conferred jurisdiction on the High Court of Justice of London (UK). The Juzgado sustained the challenge. The plaintiff filed a motion to appeal with the Audiencia Provincial of Barcelona (ES).
The Audiencia Provincial of Barcelona (ES) denies appeal.
It finds that the clause printed on the reverse side of the bill of lading is presumed accepted, though it may not be signed, because an inclusion of this sort of clause in bills of lading constitutes a usage in international trade or commerce within the meaning of Article 23(1)(c) Brussels I Regulation. It finds that the same is enforceable against the consignee of the cargo as holder of the bill of lading. Furthermore, it is to be presumed that by contracting the transport with the shipping company in accordance with the common practices regularly observed by shipping companies, the consignee accepted the jurisdiction clause in the bill of lading. As the clause is enforceable against the consignee, it is also enforceable against the plaintiff insurer as of the moment wherein it was subrogated to the rights and obligations of its insured. Finally, it affirms the enforceability of the clause against the shipping company contracted for the multimodal transport, as the bill of lading is the document that forms the basis of the claim for damages caused to the goods during maritime transport subcontracted by the shipping company with the Swiss shipping agent.