Mr Justice Aikens:
1 This is an application by Hi – Tec E. SA ("Hi – Tec") under CPR Pt 11.1for
one of two orders. The first order sought is for a declaration that the
Court has no jurisdiction to try the claimants' claim against the second
defendants and so service of the claim form on the second defendants be
set aside. The second, and alternative, is for a declaration that the Court
should not exercise any jurisdiction which it may have to try that claim
and an order staying those proceedings.
2 These proceedings and proceedings which are currently going on in the
Tribunal de Commerce de Villefranche -- Tarare, arise out of the theft of
a consignment of 90 pallets of mobile telephones when they were being
transported in a 40 tonne rigid trailer on the autoroute from Paris to
Calais on 4 November 2004. The value of the mobile phones is about £3.5
million.
3 Interesting issues arise on this application. The hearing before me took
a day on Friday 10 June 2005. I would have preferred to take more time
to set out my reasons for my decision, which could have been handed
down in the normal way. However I was told by both parties that it would
be most helpful for my decision and reasons to be available before a
judgment is given by the judge in the French Court, which is due on
Thursday 23 June. So I have prepared this draft judgment and have
stated that it can be shown in this unofficial form to the French Court.
Unfortunately the intervention of other business has prevented me from
providing the draft before today.
4 The second claimant is a French company. The first claimant ("R. & S.")
is E.'s goods in transit legal liability insurer. The reason for joining it to the
present proceedings is, I am told, because under French law it is possible
to sue directly a liability insurer and it was thought by those advising the
claimants that this might happen to R. & S. in French proceedings.
5 The first defendant (MK D. F. (Cyprus) Ltd: "MK D.l") is a Cyprus
company which sells mobile telephones. That company is owned and
controlled by Mr M. K. who has an address in Dubai. MK D. sold the
mobile telephones (which were subsequently stolen) to Hi – Tec. That is a
company incorporated in Denmark. There is a dispute (which in my view
does not matter for present purposes) about whether Hi – Tec actually
carries on business in England and Wales. Hi – Tec trades in wholesale
markets for electronics components, including mobile telephones.
6 The third defendant, TRS U. L. ("TRS") is a company that is
incorporated in France. It is a road carrier. The fourth defendant, AMS, is
also a French company and is also a road carrier.
7 The background to the case is this: on about 28 October 2004, Hi – Tec
placed an order for a total of 18,000 Nokia mobile telephones with MK D..
One part of the order consisted of 8,000 Nokia 7610 GSM handsets SIM
Free; the other consisted of 10,000 Nokia 7200 GSM handsets SIM Free.
The whole consignment was to be delivered FOB Larnaca airport, Cyprus
on 4 November 2004.
8 The goods were to be flown to France. MK D. arranged for a Cyprus
company to fly the goods to France.
9 There is a dispute as to the ultimate destination of the mobile
telephones once they reached France. It is the case of Hi – Tec that the
mobile phones were destined for a customer in Italy called N. S., pursuant
to a contract of purchase made on about 28 October 2004 between Hi
– Tec as sellers and N. S. as buyers. But it is the case of E. that these
mobile phones were destined for the UK. The issue of the designated
delivery place of the mobile phones is important and I will have to form a
view (on the evidence I have now) about that.
10 In any case, Hi – Tec had contacted E. to arrange for the onward
carriage of the mobile telephones upon arrival at Paris. There is no
dispute that instructions were given by Hi – Tec to E. in relation to the
carriage of the goods from Paris. The other key dispute between E. and
Hi – Tec arises on the nature of the contract concluded between E. and Hi
– Tec. E. says that the contract made with Hi – Tec on 3 November 2004
was for the carriage of the mobile telephones from Paris to Middlesex. Hi
– Tec says that E. was engaged as a freight forwarder, or in French legal
terminology, as a "commissionaire de transport". There is, in French law,
a most important distinction in terms of potential liability to goods owners
as between that of a "commissionaire de transport " and an international
carrier by road. I will have to expand on that in due course.
11 At all events, E. understood that the consignment of mobile phones
was to be collected from a cargo depot at Charles De Gaulle airport
and was to be transported to the premises of I. F. (UK) Ltd in Southall,
Middlesex.
12 E. contacted TRS, which regularly provided road transport to carry
goods for E.. TRS told E. that it could not provide a 40 tonne rigid trailer,
but it could use a sub-contractor, AMS, to supply this equipment to
Southall. That was agreed. E. prepared the CMR Note for the movement.
It was also agreed that E. would provide an escort driver. He was M. J. C.
C., who was employed by E. regularly as a driver of its vehicles.
13 M. C. went to Charles De Gaulle airport and, after some delay, the
truck arrived at Freight Area 5 at 3pm on 4 November 2004. The details
in the CMR Note were completed and the truck, trailer and escort vehicle
set off onto the autoroute A1 to Calais. After a little while the truck turned
off at an "Aire" at Ressons. M. C. also turned off. The two truck drivers
and M C. went to have a cup of coffee. On returning to the transports,
the truck moved off but M C. could not because the tyres of his vehicle
had been slashed. M C. telephoned the truck drivers to tell them to wait.
They said that there were on the autoroute and so he would just have to
catch up. M C. was suspicious and so rang the police. But in fact the truck
disappeared and the consignment has never been seen since.
14 The proceedings in England and France:The two claimants issued their
claim form in "The Admiralty and Commercial Court" on 11 November
2004. The Brief Details of Claim state: (i) a contract between Hi – Tec
and E. was concluded on 4 November 2004 whereby E. would carry a
consignment of 90 pallets of mobile telephones from France to the UK.
This contract was subject to the Convention on the Carriage of Goods by
Road("CMR") given the force of law in the UK by the Carriage by Road Act
1965; (ii) this contract was sub – contracted to TRS; (iii) the consignment
was stolen whilst in the care and custody of TRS. There are three types
of relief claimed by both claimants. The first is: "A declaration against
the first and/or second Defendants or any other parties interested in the
consignment that they have no liability for the loss sustained in respect
of the theft (none being admitted) or in the alternative that any such
liability is limited by virtue of Article 23 CMR". The second is for: "...
damages as against the third Defendants for breach of contract and/or
breach of duty and/or negligence in or about the care, custody, carriage
and delivery of the consignment." The third is for: "an indemnity and/or
contribution from the third Defendant in respect of any damages, interest
and/or costs which they have to pay to the first and/or second Defendant
or any other person interested in the consignment". The English action is
therefore one claiming declarations that the disputes between the parties
are governed by the CMR; for declarations of non – liability or limited
liability on the part of E.; and a claim for an indemnity or contribution
from other defendants for any liability of E. towards Hi – Tec or anyone
else interested in the consignment.
15 The statement at the foot of the Brief Particulars are important:
that reads: "We certify that the High Court of England and Wales has
the power to hear and determined the Claimants' claims against the
Defendants by virtue of Article 57 of the Civil Jurisdiction Judgments Act
1991 and the Convention on the International Carriage of Goods by Road
(CMR) enacted in the Carriage of Goods by Road Act 1965 and that no
proceedings involving the same cause of action are pending between the
parties in Scotland, Northern Ireland, or any other Convention territory of
any contracting state, as defined, by Section 1(3) of the Civil Jurisdiction
Judgments Act 1982 as amended by section 2(5) of the Civil Jurisdiction
and Judgments Act 1991".
16 It is clear that the claimants were saying that jurisdiction could be
founded under the terms of Art 31 (1) of the CMRand that, as is provided
for in Art 31 (2) of the CMR, there were no other proceedings pending in
a court that would be competent to hear the claim under the terms of Art
31. I will have to return to this later on.
17 At the time the English proceedings were issued, there were no other
proceedings. On 26 November 2004 AMS were added to the Claim form.
18 Before any defendants had been served with the English proceedings,
Hi – Tec instituted proceedings before the Tribunal de Commerce de
Villefranche Tarare on 2 December 2004 ("the French Proceedings"). At
the same time Hi – Tec sought expedition from the French Court. In the
French proceedings E. issued third party summons against TRS and AMS
and also obtained an order for expedition. However, at an early stage
in the French proceedings E. raised objections to the court hearing the
matter further on the basis that the English court was the court first
seised under Art 30 of the Council Regulation 44 of 2001 ("The Judgments
Regulation"). The French Court is due to give judgment on this application
on 23 June 2005.
19 The nature of the claim of Hi – Tec against E. in the French
proceedings is that E. was engaged as a "commissionaire de transport".
Under French law a person engaged as such assumes two responsibilities.
These are described in Hi – Tec's submissions to the French Court,
(quoted in para 37 of the second witness statement of Mr Reynolds,
solicitor for the Claimant), as follows: "... on the one hand it is
responsible for its doings from a personal point of view(article L. 132-4
of the Code of Commerce), and on the other, it is the guarantor of
the doings of the carriers and other intermediaries to which it has
had recourse for the execution of the transportation which has been
entrusted to it (article L-132-6 of the Code of Commerce)..." Therefore,
the allegation is that the contract between E. and Hi – Tec is quite outside
the CMR. In the French proceedings it is said that E. was in breach of
its contract by dispatching the consignment to the wrong destination,
ie. the UK rather than Italy. It is also asserted that E. failed to follow an
instruction of Hi – Tec to insure the goods. Under French law there is
no limit of liability for damages that flow from a breach of the personal
responsibilities of a "commissionaire de transport".
20 There is a dispute as to whether the Italian company to which Hi – Tec
claims it ordered E. to send the consignment actually exists. The place
where N. S. was said to exist is a hamlet in the Italian Alps some 12,812
feet above sea level. It has a population of about 1200. The address to
which E. was supposed to send the goods -- Emilia Zanti 3497 -- does not
exist. The solicitors for E. have written to a company called "N. S." which
carries on business as a retailer of mobile telephones at Reggio Emilia,
which is 200 km south of Trafoi. That company has responded saying that
the documents relied upon by Hi – Tec as demonstrating dealings with
N. S. are not documents from the "real" N. S. SRL. The President of the
Board of Directors of N. S. SRL has stated that it appears that "unknown
persons are making illicit use of the corporate name of N. S. SRL and its
relevant VAT Number".
21 Returning to the history of the two sets of proceedings, the next step
concerned the English proceedings. On 4 January 2005 E.'s solicitors
lodged with the High court the papers necessary to effect service of the
English proceedings on MK D. and Hi – Tec. The English proceedings were
served on Hi – Tec on 4 February 2005. Then on 24 March 2005 Hi – Tec
issued its Application Notice in the English proceedings and served it with
accompanying evidence on E.'s English solicitors.
22 The final hearing in the French court on whether the French
proceedings should be stayed was on 21April 2005.
23 The arguments of the partiesThe arguments of Mr Charles Graham
QC, for Hi – Tec are, very briefly, as follows: (i) on the "good arguable
case" test, the nature of the contract between Hi – Tec and E. was not
one for the international carriage of goods by road, therefore it is not
subject to the jurisdiction regime set out in Art. 31 of the CMR. The
jurisdiction regime is, in fact, the Brussels Convention, because Hi – Tec is
a company that is registered and carries on its main business in Denmark
(which is not a party to the Judgments Regulation). The English Court
does not have jurisdiction under either Art 2 or Art 5 of the Regulation.
Moreover, even if, for the purposes of Art. 30, the English Court was
the one first "seised" of the matter, it must decline jurisdiction because
none can be established under the Brussels Convention regime. Even
if E. can establish jurisdiction under Art 5 of the Brussels Convention,
then because the French action is pending, then the Claimants needed
leave to serve the proceedings out of the jurisdiction, because they
cannot come within the provisions of CPR Pt 6.19(1). But no leave was
obtained. (ii) Even if there is a good arguable case that the contract is
one for the international carriage of goods by road, then, using the "good
arguable case" test, the "place designated for delivery" was Italy, not
the UK. Therefore the English Court cannot have jurisdiction under Art.
31 (1) of the CMR; alternatively, even if both those arguments fail, on
the proper construction of Art. 31(2) there is an action "pending" in the
French Courts, and that Court is a competent court for the purposes of
Art 31(1). Therefore, following Rix LJ's suggested construction of Art.
31(2) of the CMRin Andrea Merzario Ltd v Internationale Spedition Leitner
Gesellschaft GmbH [2001] 1 Lloyd's Rep 490 at page 500 para 49, the
English action should not be permitted to continue. (iii) Lastly, even if the
case is governed by the CMR and jurisdiction of the English Court could
be founded under Art 31(1) of the CMR, nevertheless the English Court
should decline to exercise jurisdiction in this case, because the English
Court retains the power to stay these proceedings on the ground of forum
non conveniens and it should do so because this is plainly a case with a
centre of gravity in France and hardly any connection with England.
24 Mr Kenny, for E., submits: (i) that on the good arguable case test, the
contract between E. and Hi – Tec is for the international carriage of goods
by road and so is governed by CMR. Further, on the good arguable case
test, the place designated for delivery was the UK. Therefore the English
Court has jurisdiction under Art 31(1) of the CMR. (ii) Art 31(2) does
not apply in this case, because the English proceedings had been started
before the French ones. (iii) As Art 31(2) does not apply in this case,
the question of whether the English Court or the French court should
determine the matter is governed by the Judgments Regulation, to which
both France and the UK are a party. This is a case where, under Art 30
of the Regulation, the English Court was first seised of the matter, as
E. has complied with Art 30(1). Because the same cause of action has
been brought by E. and Hi – Tec in the French and English Courts, Art 27
applies. Therefore the French Court must stay its proceedings, because
under Art 30 of the Regulation, the English Court was first seised of the
matter.
The provisions of Article 31 of the CMR
25 These state:
1. 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 by agreement between the parties and, in addition, in the courts
or tribunals of a country within whose territory
(a) 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
(b) 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.
2. Where in respect of a claim referred to in paragraph 1 of this article
an action is pending before a court of tribunal competent under that
paragraph, or where in respect of such a claim a judgment has been
entered by such a court or tribunal no new action shall be started
between the same parties/on the same grounds/unless the judgment
of the court or tribunal before which the first action was brought is not
enforceable in the country in which the fresh proceedings are brought.
The Issues for decision:
26 I have to decide the following: (i) what is the nature of the claim
asserted by E. in the English proceedings? In particular does the claim
constitute "legal proceedings arising out of carriage under" the CMR,
to follow the wording of Art 31(1) of the CMR. If the proceedings come
within that definition, then, it seems to me, the jurisdictional regime
must be that of the CMR. If not, then it must be that of the Brussels
Convention. I believe that those two putative conclusions are not in issue
between the parties, because of the "saving" provision in Article 71 of the
Judgments Regulation 44/2001 (which is the equivalent of Article 57 of
the Brussels Convention). Both parties accept that the CMR falls within
the terms of Article 71/57. As I understand it, both sides also accept that
I have to consider whether the English proceedings fall within Art 31 on
the basis of a "good arguable case".
27 (ii) If the CMR jurisdiction regime applies, was the "place designated
for delivery" of the consignment of mobile telephones the UK or Italy.
Again, I understand that both sides accept that I have to answer this
question on the basis of a "good arguable case" test.
28 (iii) If the UK is the "place designated for delivery" of the goods, then
does Art. 31(2) operate because there is an action "pending" in France, so
that the English Court does not have jurisdiction or must stay the present
action here.
29 (iv) If Art 31(2) of the CMRdoes not apply, then, under the Judgments
Regulation, are the actions in France and England, as between Hi – Tec
and E., "proceedings involving the same cause of action" so that Art 27
applies, or "related actions" so that Art 28 applies? As Mr Graham accepts
that, for the purposes of this application, under Art 30 of the Regulation
the English Court is the Court first seised, then in either case the English
proceedings can proceed, subject to the issue referred to below, but a
decision on the Art 27/28 point will determine what the French Court
should do with the French proceedings.
30 (v) On the assumption that the English proceedings arise out of
carriage under the CMR and Art 31 governs jurisdictional issues, apart
from those covered by the Judgments Regulation, does the English Court
have jurisdiction to stay the English proceedings on the ground of forum
non conveniens?
Issue One: Do the English proceedings constitute "legal proceedings
arising out of carriage" under the CMR?
31 The CMR, which is given the force of law in the UK by virtue of the
Carriage of Goods by Road Act 1965, applies so far as its provisions relate
to the rights and responsibilities of persons concerned in the carriage
of goods by road under a contract to which the Convention applies. As
Mance J pointed out in Aqualon (UK) Ltd v Vallana Shipping Corp [1994]
1 Lloyd's Rep 669 at 673, it is a pre – condition to the application of the
CMR that there should be a contract for the carriage of goods by road.
Whether that is, in fact, the case is a matter to be determined by the
applicable national law.
32 In my view I have to do two exercises in order to answer the question
posed in this first issue. The first exercise is to analyse the way the claim
is put in the Claim Form. The second is to examine the evidence before
me and decide on the nature of the contract. (No one suggested that
I should do this other than by reference to English law tests). It was
accepted by both counsel that I would have to be satisfied that there is
a "good arguable case" that the English proceedings constitute "legal
proceedings arising out of carriage" under the CMR and that the burden
was on E. to show that is so. There was some debate over the precise
nature of the test of "good arguable case" in the context of a dispute
about jurisdiction. I was referred to the judgment of Waller LJ in Canada
Trust v Stolzenburg (No 2) [1998] 1 WLR 547 in particular at 555 and the
decision of the House of Lords in that case, reported at [2002] 1 AC 1.
Their Lordships approved what was said by Waller LJ about this test in the
context of a dispute about jurisdiction of the court.
33 The essence of the test is that the court must be satisfied that it is
right for the court to take jurisdiction. If that judgment involves making
some kind of decision on one of the very matters that would be for
decision at the trial, then the court must not be seen to pre-empt the
decision at trial, particularly where the evidence at the jurisdiction stage
will be incomplete and made upon affidavit or by witness statement only.
34 In this case if the matter were to continue in the English court the
nature of the contract between E. and Hi – Tec would be the fundamental
issue in the case. Therefore, although I must not be seen to pre – judge
that issue, I must at the same time test the evidence to see whether the
English Court can properly accept jurisdiction.
35 In the light of this, I consider first the nature of the claims as pleaded
by the Claimants in the English action. I note here that Mr Graham did
not try and isolate the position of R. & S.. Nor, under this heading, did he
make a point that this was, in the first case, a claim by the claimants for
declarations of non – liability. He was right not to do so, in my view. The
phrase in Art 31(1) is: "legal proceedings arising out of carriage under
this Convention". In my view that is wide enough to encompass a claim
for a declaration of non – liability and to include any proceedings in which
a goods in transit liability insurer claims a declaration that it is not liable
in respect of an alleged loss during international carriage of goods by
road. They are both claims "arising out of carriage under [the CMR]".
36 In my view the claims asserted in the "Brief Details of Claim" in the
English Claim Form plainly intend to represent legal proceedings arising
out of carriage under the CMR. That is clear from the language of the
second and fifth paragraphs and the "certifying" paragraph at the end, in
particular.
37 But that cannot be determinative of whether the CMR jurisdiction
regime should apply. I have to consider the next issue, which is, whether
there is a good arguable case that the contract between Hi – Tec and
E. was one to which the CMR applied or was in the nature of a freight
forwarder or transport intermediary contract. That depends, critically, on
the role of E. as agreed by the parties and the role undertaken in fact.
Both counsel accepted that in considering this point I should be guided
by factors set out by Mance J in Aqualon (UK) Ltd v Vallana Shipping
[1994] 1 Lloyd's Rep 669, which case was approved by the CAin Lukoil
-- Kaliningradmorneft plc v Tata Ltd & Global Marine Transportation Inc.
[1999] 2 Lloyd's Rep 129. Mance J identified five factors in particular,
although he did not suggest they were exclusive or definitive. Mance J
said:
"The most obvious are:
(a) the terms of the particular contract including the nature of the
instructions given...
(b) any description used or adopted by the parties in relation to the
contracting party's role;
(c) the course of any dealings, including the manner of performance
-- at least in so far as it throws light on the way in which the parties
understood their relationship;
(d) the nature and basis of charging (in particular whether an all-in fee
was charged, leaving the contracting party to make such profit as he
could from the margin between it and the costs incurred);
(e) the nature and terms of any CMR [consignment] note issued."
38 To my mind the most important aspects in this case are the first two,
because there is a witness statement from Mr A. R., a director of Hi –
Tec, who made the contract in question in the course of a telephone
conversation with Mr T. of E.. Mr R. says that the conversation took place
on 3 November 2004. There may be a dispute about that date. But the
important point is set out in para 11 of Mr R.'s first witness statement,
which says:
"I have been asked whether the contract was a contract for E. to transport
the Goods to Italy themselves or a contract for E. to arrange for the
transportation of the Goods to Italy using some third party as carrier.
I did not draw a distinction between these two options in my mind at
the time. However, it was not important to Hi-Tec that the Goods were
transported in an E. lorry (as opposed to being transported in the lorry
of some other reputable transport company); what was important to
Hi-Tec was that E. saw to it that the goods were delivered to the right
destination and on time -- if they wanted to arrange for a third party to
do the actual transportation, Hi-Tec would have had no problem with that,
so long as that company was a reputable and reliable one and that E. took
responsibility for the job".
39 There is no equivalent statement from Mr T., but there is a second
witness statement from Mr Justin Reynolds (partner in Hill Dickinson,
solicitors for E.), who says that his information has been obtained from
Mr T. amongst others. His evidence is set out in his second witness
statement, at paras 8 and 11(2), as follows:
"E.'s evidence is that on 28th or 29th October Mr Jens T., its transport
manager at Rungis (near Orly airport), received a telephone call from Mr
R. of Hi Tec, to advise of a future consignment of a mobile phones coming
from Cyprus, to be collected from Ro. CDG and carried to the premises of
I. in Southall.
.... Mr T.'s clear understanding of his conversation with Mr R. on 28th or
29th October was that the new consignment from Cyprus when it arrived,
was also to go to I.. Unfortunately, he made no note of the conversation".
That evidence strongly suggests that the contract was one for the carriage
of the goods. Of course, a person can contract for the carriage of goods
as principal and still sub – contract the work. So what Mr T. arranged
subsequently is entirely consistent with a contract to carry as opposed to
a contract as a freight forwarder.
40 In relation to factor (b), Mr Graham relied on subsequent letters and
the French proceedings in relation to this factor. The latter is likely to be
self-serving and is of no help. The letter from E. to TRS and their insurers,
dated 10 November 2004 is, in my view, equivocal, in any event.
41 As for factor (c), Mr Graham relies on the details of previous contracts
relating to the carriage of goods between E. and Hi – Tec. But Mr Kenny
rightly points out that Mance J stated that these previous dealings were
only helpful insofar as "it throws light on the way in which the parties
understood their relationship; thus whether or not the contracting party
informed the goods owner of or identified the actual arrangements
made for the carriage". Mr Graham relies on the previous invoices and
CMR notes for two instances of Hi – Tec goods being handled by E.. The
invoices indicate three heads of charge. One is "TRS INTL"; the next is
"HANDLING"; the last is "CONTROL". The sums charged (in Euros) are
very much larger for the first item than the other two. Mr Graham says
that this indicates that E. charged the transportation rate that they had
had to pay to whoever transported the goods in fact and then added
their charge for handling and control. He submits that is what a freight
forwarder would do. There is no expert evidence about that point. I agree
with Mr Kenny that the invoice can also be looked at as E. setting out its
charge for transportation, handling and control so that the elements can
be seen by the goods owner who has to pay. So I regard the previous
invoices as equivocal.
42 The previous CMR Notes are in the same form as the one in the
present case, so there is no additional point to be made there. There is
no evidence that E. had stated anything to Hi – Tec on these previous
occasions about how it (E.) intended to carry out its obligations.
43 Factor (d): There is no invoice in the present case. But nothing further
can be derived from this point, assuming that the form of the invoice
would have been the same as on the two previous occasions, for the
reasons I have given.
44 Factor (e): Mr Graham submits that the CMR Note strongly suggests
that E. regarded its role as that of freight forwarder. He notes in particular
that it appears to have been prepared by E. who signed it on behalf of
the "sender" in Box 22. Hi – Tec is identified as the sender in Box 1.
TRS is identified as the transporter in Box 16 and Mr A. signed for the
transporter. All this indicates that E. regarded itself as the agent of the
sender, Hi – Tec, Mr Graham submits.
45 Mr Kenny accepts that the CMR Note does support the submission that
E. regarded itself as acting as agent. However, he points out that the CMR
Note was prepared after the contract between Hi-Tec and E. had been
concluded, and there is no evidence that Hi – Tec saw or agreed to the
terms of the Note. Therefore this is of little help in deciding on the nature
of the contract agreed between Hi – Tec and E..
46 I agree with that submission. Overall I think that the balance of the
factors, but most particularly the evidence on what was agreed between
Mr R. and Mr T., supports a good arguable case that the contract between
E. and Hi – Tec was one for the international carriage of goods by road,
not one to act as a freight forwarder.
47 This conclusion means that I have to decide the issues of jurisdiction,
at least in the first place, by reference to Art 31 of the CMR.
Issue Two: What was the "place designated for delivery" of the mobile
telephones the UK or Italy
48 Mr R. states in paragraph 10 of his witness statement that in a
telephone conversation with Mr T. of E. on 3 November 2004, he
instructed Mr T. that the goods were to be transported from France to
Hi – Tec's customer in Italy. In support of Hi – Tec's case that the place
designated for delivery of the mobile phones was Italy, Mr R. relies
also on a fax, said to have been sent to E. on 3 November 2004, which
referred to "8000 pcs of Nokia 6610 and 10000 pcs of Nokia 7200"
and identifies the customer in Italy as N. S. at what now appears to be
a non – existent address. That was followed by a fax of 4 November,
which referred to the same numbers and types of Nokia phones, but
instructed E. to ship them "from Frankfurt airport (FOB) and deliver it to
my customer". It also stated: "I would like 100% insurance cover for the
above goods".
49 On E.'s side the witness statement of Mr Reynolds says (para 8 and
following) that Mr T., the transport manager of E., had a telephone
conversation with Mr R. on 28 or 29 October about these mobile
telephones and that Mr R. instructed E. to deliver them from Ro. to the
premises of I. in Southall. Mr T. had a telephone conversation with a lady
from Eu. L. Ltd (a Cyprus freight fowarding company) saying that the Hi –
Tec shipment was leaving Larnaca for R., Charles De Gaulle airport. Mr T.
says that he did not receive the 3 November fax that day, but received it
and the 4 November fax at 13.31 on 4 November, 2004. However, neither
he nor his secretary looked at these faxes until after the goods were
stolen.
50 There is, in my view, much to argue about on the faxes of 3 and 4
November. That will have to await a trial, wherever that might be. For the
present, I do not feel able to regard them as reliable evidence of what
was agreed between the parties about the destination of the goods.
51 The fact is that Mr T. made all the arrangements for the carriage of the
mobile phones from Paris to the UK. So the only way that Hi – Tec can put
their case is to say that Mr T. completely misunderstood his instructions
from Mr R. or, in the rush of business he did what he did with 80% of the
movements E. was involved in: ie. he sent them to I..
52 I find this implausible. First, it seems E. did not deliver to Italy at all
as part of their business. So if there had been instructions to do so, it is
likely to have stood out in his memory. Secondly, Mr T. was well aware
that mobile phones are high risk cargoes for carriage by road. Also, that
the risk of theft or hi – jacking in Italy is notorious. Therefore, he has
stated (through Mr Reynolds) he would never agree to arrange a delivery
to Italy and, if offered such a consignment, would have refused to enter
into the contract.
53 I am therefore satisfied that there is a "good arguable case" that the
UK was the place designated for delivery of the mobile telephones.
54 At this stage I should look overall at the constituents for the English
Court accepting jurisdiction under Art 31 of CMRand ask: am I satisfied
that it is, prima facie, right for the English Court to take jurisdiction? I am
satisfied overall.
Issue Three: Does Art 31(2) operate because there is an action "pending"
in France, so that England does not have jurisdiction or must stay the
present action in England?
55 Mr Graham submits that the French proceedings are "pending"
because they have been served on all parties. At the time that was done
the English proceedings had been started but had not achieved the status
of being "pending", because they had not been served on any defendant.
Therefore, he submits, on the assumption (which he makes for this
purpose) that the two sets of proceedings are between E. and Hi – Tec
and are "on the same grounds ", then the English proceedings should not
be continued.
Mr Graham's argument under this heading is based on remarks of Rix LJ
in the Andrea Merzariocase, to which I have already referred. In that case
the principal issue that arose was whether an action was "pending" in the
Austrian Courts for the purposes of Art 31(2) when the proceedings had
been issued but not served on the other side. All three members of the
CA agreed that if the question arose in relation to an English Court, then
an action would only be "pending" once the proceedings had been served.
The Court also concluded that, on the proper construction of Art 31(2)
and on the facts and evidence of Austian law before them, the Austrian
proceedings were not "pending".
56 In giving the first judgment, Rix LJ sets out his reasons for his
conclusion on the meaning of "pending" in Article 31(2) at paras 47 to
51. One reason Rix LJ gives for his conclusion regarding the meaning of
"pending" is set out at para 49 of his judgment. He states:
"49. Secondly, while recognizing the argument of Mr Mildon that the
very competition between an action which is pending in one jurisdiction
and started in another might suggest that the concepts of "pending"
and "started" should be harmonized rather than contrasted, I find that
the sense of contrast prevails. If that means, where the pending action
has priority but the second action has been started before such priority
has been achieved, that the words "no new action shall be started" is to
be understood to mean "no new action shall be started or continued", I
would regard that as preferable to finding that the contrasted language
is to be construed to mean the same thing. Alternatively, but in my view
less satisfactorily, one would conclude that the second action which
has been started before the pending action reaches priority simply
escapes the bar which would have been achieved if the pending action
had reached priority before the second action had been started."
57 Lord Justice Chadwick agreed with the conclusion of Rix LJ on the
meaning of "pending" and for the reasons given by him: see para 78.
However, Chadwick LJ also makes it clear, in para 79, that he does
not necessarily accept the view of Rix LJ, expressed in para 49 of his
judgment, that if there were a situation where an action has been started
in one jurisdiction, but it is not "pending", then if another action is started
in another jurisdiction and becomes a "pending" action, the first court
must stay its action. Chadwick LJ says, at para 79:
"I appreciate that that leaves open for decision, in a case in which the
question does arise, whether a Court before whom an action has been
started but is not pending (in the sense in which I think those words
should be understood in this context) at the time when some other action
becomes a pending action (by service on, or notice to, the defendant)
is obliged to, or has power to, stay the action which is before it. As Lord
Justice Rix has observed, it seems likely that the Austrian Court will need
to address that question in relation to the Austrian proceedings. For my
part, I doubt whether the answer is to be found in art. 31(2) of the CMR
Convention."
58 On this point the third member of the court, the Vice Chancellor, did
not express an opinion.
59 Mr Graham accepts that the remarks of Rix LJ on the proper
construction of Art 31(2) in the example he gives in para 49 of his
judgment, beginning with the sentence "If that means, where the pending
action has priority, but the second action has been started before such
priority has been achieved..." are not directly part of the decision in the
case. He also accepts that Chadwick LJ did not agree with Rix LJ's view on
that point. Nevertheless, Mr Graham submits that I should adopt Rix LJ's
view.
60 I have difficulty with accepting the view of Rix LJ that Art. 31(2) can
be interpreted to deal with this situation. Assuming (as I must) that
"pending" and "started" have different meanings in the Article, the fact
is that a great deal of verbal manipulation with the wording of Art 31(2)
has to be performed if it is to be interpreted as Rix LJ suggests. On the
interpretation of Rix LJ, the first part of the sentence comprising Art 31(2)
would have to read: "Where in respect of a claim referred to in paragraph
1 of this article an action is pending before a court or tribunal competent
under that paragraph... no new action shall be started and no action
which had been started but is not pending shall be continued between the
same parties on the same grounds....".
61 However purposive a construction is given to Art 31(2), I feel unable
to read in the words "and no action which had been started but was not
pending shall be continued...". Like Chadwick LJ, I doubt whether the
answer to this particular problem is to be found in Art 31(2) of the CMR.
Instead, where the Courts concerned are governed by the Judgments
Regulation, I believe the answer is to be found in the provisions of Articles
27, 28 and 30.
Issue Four: If Article 31(2) of the CMR does not apply to deal with the
situation where the French and English actions are in existence, are those
actions, as between E. and Hi – Tec "the proceedings involving the same
cause of action", or "related claims", for the purposes of Articles 27 and
28 of the Judgments Regulation?
62 Both counsel agreed that if Article 31(2) did not apply to resolve the
question of how to deal with the existence of two actions as between
Hi – Tec and E., then the matter must be dealt with by reference to the
Judgments Regulation. This is because the actions are in the Courts of
France and the UK, both of which are party to that Regulation.
63 Articles 27, 28 and 30 appear under the heading "Lis pendens --
related actions" and provide:
Article 27
1. Where proceedings involving the same cause of action and between
the same parties are brought in the courts of different Member States,
any court other than the court first seised shall of its own motion stay its
proceedings until such time as the jurisdiction of the court first seised is
established.
2. Where the jurisdiction of the Court first seised is established, any court
other than the court first seised shall decline jurisdiction in favour of that
court.
Article 28
1. Where related actions are pending in the courts of different Member
States, any court other than the court first seised may stay its
proceedings.
2. Where these actions are pending at first instance, any court other than
the court first seised may also, on the application of one of the parties,
decline jurisdiction if the court first seised has jurisdiction over the actions
in question and its law permits the consolidation thereof.
3. For the purposes of this Article, actions are deemed to be related where
they are so closely connected that it is expedient to hear and determine
them together to avoid the risk of irreconcilable judgments resulting from
separate proceedings.
...
Article 30
For the purposes of this Section, a court shall be deemed to be seised:
1. at the time when the document instituting the proceedings or an
equivalent document is lodged with the court, provided that the plaintiff
has not subsequently failed to take the steps he was required to take to
have service effected on the defendant, or
2. if the document has to be served before being lodged with the court,
at the time when it is received by the authority responsible for service,
provided that the plaintiff has not subsequently failed to take the steps he
was required to take to have the document lodged with the court".
64 Mr Kenny submitted that the English court was "first seised" of the
matter, because the Claim Form was lodged with the English Court first
in time, and E. has not subsequently "failed" to take the steps it was
required to take to have service effected on Hi – Tec. Mr Graham rather
half – heartedly suggested that E. had failed to take the necessary steps.
I do not accept that. E. complied with the rules in the CPR about service.
As I have held, the claims by E. and R. & S. constitute proceedings arising
out of carriage under the CMR. Therefore, under CPR Pt 6.19(2) a claim
form may be served on the defendant out of the jurisdiction without the
permission of the court. This is because the Claim Form contains (and
only contains) a claim arising out of carriage under the CMR and, under
the provisions of Art 31(1) and in the circumstances of this case, the
English Court has jurisdiction to determine that claim. (I should note,
incidentally, that it is not suggested that a claim for a declaration of non –
liability cannot come within Art.31: see the Merzario case: passim). E. did
serve Hi – Tec without permission, as they were entitled to do and there is
no suggestion that there was any defect in the technicalities of service.
65 It follows that the English Court was the court first seised of an action
arising out of carriage under the CMR. The next question is whether the
French proceedings as between E. and Hi – Tec "involve the same cause
of action" for the purposes of Art. 27 of the Judgments Regulation.
66 It is well -- established that the phrase "same cause of action" in Art.
27 has an "autonomous" meaning and is not to be interpreted according
to the criteria of national law. The test to apply is discussed in Briggs
and Rees on Civil Jurisdiction and Judgments, 3rd Ed, at para 2.189.
Basing themselves on the ECJ decisions of Gubisch Maschinenfabrik
KG v Palumbo [1987] ECR 4861; Overseas Union Insurance Ltd v New
Hampshire Insurance Co [1991] ECR I – 3317 and The TATRY [1994] ECR
I – 5439, the authors submit that there are two tests that have to be
satisfied. First, do the actions have as their basis the same facts and rule
of law; secondly do they have the same end in view? The authors suggest
another way of testing the matter is to ask whether a decision in the one
set of proceedings would be a conclusive answer to the question raised in
the other?
67 The two actions arise out of the same facts. They arise out of the
same rule of law in the sense that both are concerned to decide the
nature of the contractual relationship between E. and Hi – Tec and what
the legal consequences of that contractual relationship will be. If either
court decides that E. contracted as a carrier, then the CMR must govern
the contractual relationship of the parties. If either court decides that
E. contracted as a freight forwarder or "commissionaire de transport"
then CMR will not govern, and the nature of the contractual relationship
and the consequences of that will be governed by the proper law of the
contract.
68 Both sets of proceedings have the same object in the sense that they
have the same end in view, which is to determine the liability, if any, of E.
to Hi – Tec, for the loss of the mobile telephones stolen on 4 November
2004. A decision in either Court should be a conclusive answer to the
question raised in the other.
69 Accordingly, I conclude that, as between E. and Hi – Tec, the
proceedings in France and the UK involve the "same cause of action" for
the purposes of Art. 27 of the Judgments Regulation.
Issue Five: On the assumption that the English proceedings arise out of
carriage under the CMR and Art 31 governs jurisdictional issues, apart
from those covered by the Judgments Regulation, does the English Court
have the power to stay the English proceedings on grounds of "forum non
conveniens"?
70 In my view the answer to this question is clearly "no". I think that,
logically, the issue first arises in relation to the CMR. The argument is that
even if English jurisdiction is established under the CMR, then if England
is not the convenient forum, the proceedings can be stayed, particularly if
there are pending proceedings in another jurisdiction, in this case France.
71 That argument assumes that there is room for the doctrine of "forum
non conveniens" in the context of the CMR. Neither counsel has referred
me to any authority which involves the CMR on this point. However Mr
Kenny referred me to Milor SRL v British Airways Plc [1996] QB 702.
That is a case on the Warsaw Convention. Jurisdiction was established in
England under Art 28 of the Convention, but the defendant sought to stay
the action on the grounds that Pennsylvania was the more convenient
forum. Both the judge and the Court of Appeal dismissed the application.
Phillips LJ, (as he then was), gave the principal judgment. He held,
agreeing with Longmore J, that the operation of the doctrine of "forum
non conveniens" was inconsistent with the express wording of Article
28, which set out a definitive choice of forums in which a claimant could
bring an action for damages under the Convention. Phillips LJ also held,
agreeing with the judge, that Article 28 was a self contained code in
relation to jurisdiction. Phillips LJ pointed out that the doctrine of "forum
non conveniens" was, at the time that the Warsaw convention was
concluded in 1929, a doctrine recognised in only a minority of common
law countries, of which at that time England was not one. It is, of course,
a doctrine that is not recognised at all in civil law countries. As Phillips
LJ commented, at page 708: "I think it would be surprising if the high
contracting parties had preserved to that small minority of countries
which applied the doctrine of forum non conveniens a power to affect the
choice of forum in which a dispute should be tried by a process unknown
to the majority of the [high contracting] parties".
72 In my view exactly the same reasoning and conclusions apply to the
CMR. Art 31(1) is an exclusive code as to where proceedings "arising
out of carriage under this Convention" may be brought. The final words
of that paragraph are "and in no other courts or tribunals". As with the
Warsaw convention, in my view, Art 31(1) leaves no scope for a challenge
to the jurisdiction on the grounds of "forum non conveniens".
73 I respectfully echo, in relation to CMR cases, the comments that
Phillips LJ makes at page 710 of the judgment in the Milor case. There he
doubts the gloomy comment of the editors of Shawcross & Beaumont on
Air Law, who suggested that the unavailability of forum non conveniens
in aviation cases would have most unfortunate consequences. In relation
to that, Phillips LJ said: "There is something to be said for a regime which
restricts the choice of forum in a manner which excludes those which
are likely to be inappropriate, but which does not otherwise permit the
plaintiff's choice to be challenged ". In those circumstances, comments
that a case is more connected with one of two countries, both of which
could legitimately be the basis for jurisdiction by the claimant under the
CMR, are both inapposite and unhelpful.
74 If the doctrine of forum non conveniens cannot affect the CMR, then,
for the reasons that I have already given, the English Court is the proper
forum, subject to the "lis pendens" point dealt with under Issue Four. I
have decided that the question of which of the two courts should deal
with the matter must be determined under the Judgments Regulation. If
so then, as is well established, the doctrine of "forum non conveniens "
can have no application. It is inconsistent with the Judgments Regulation
regime.
75 Conclusion:For these reasons the Application of Hi – Tec must be
dismissed. I am very grateful to counsel for their interesting and most
helpful arguments