The CJEU held final week in Joined Instances C‑345/22 and C‑347/22 Maersk A/S v Allianz Seguros y Reaseguros SA and Case C‑346/22 Mapfre España Compañía de Seguros y Reaseguros SA v MACS Maritime Provider Delivery GmbH & Co.
The case considerations enforceability of selection of court docket (within the instances at challenge: professional a court docket in England) included in payments of lading in opposition to third social gathering holders of the payments. Every case was introduced previous to Brexit Implementation day and because of the UK-EU Withdrawal Settlement (A127(3)) totally topic to Brussels Ia. Mukkarum Ahmed had earlier signalled Collins AG’s Opinion during which his scholarship was justifiably cited.
Related Spanish legislation isn’t amongst these nationwide legal guidelines which settle for with relative ease that selection of court docket and legislation has binding impact on third social gathering acquirers of the invoice, seeing because it supplies:
In Part XI( of the preamble to Ley 14/2014 de Navegación Marítima (Delivery Legislation 14/2014) of 24 July 2014 (BOE No 180 of 25 July 2014, p. 59193; ‘the LNM’) it states:
‘… [Chapter I of Title IX] comprises the particular guidelines of jurisdiction and competence and, continuing on the premise of the preferential software on this matter of the foundations in worldwide agreements and the legislation of the European Union, seeks to forestall the abuses recognized, by declaring void clauses which offer for submission to a overseas jurisdiction or to arbitration overseas, contained in contracts for the usage of a ship or in ancillary transport contracts, if these clauses haven’t been individually and individually negotiated. …’
Beneath Article 251 of the LNM, headed ‘Effectiveness of switch’:
‘Supply of a invoice of lading shall have the identical results as supply of the products represented by the invoice, with out prejudice to the legal and civil actions open to an individual who has been unlawfully dispossessed of these items. The acquirer of the invoice of lading shall purchase all of the transferor’s rights and actions over the products, aside from agreements on jurisdiction and arbitration, which shall require the consent of the acquirer in accordance with Chapter I of Title IX.’
The primary paragraph of Article 468 of the LNM, entitled ‘Clauses on jurisdiction and arbitration’, which seems in Chapter I of Title IX of that legislation, supplies:
‘With out prejudice to the provisions of the worldwide agreements relevant in Spain and to the foundations of EU legislation, clauses which offer for submission to a overseas jurisdiction or to arbitration overseas, contained in contracts for the usage of a ship or in ancillary transport contracts, shall be void and deemed to not exist if these clauses haven’t been individually and individually negotiated.
Related authority is after all CJEU C‑387/98 Coreck Maritime) the place the Court docket held that a jurisdiction clause included in a invoice of lading could also be relied on in opposition to a 3rd social gathering to that contract if that clause has been adjudged legitimate between the provider and the shipper and supplied that, by advantage of the related nationwide legislation, the third social gathering, on buying the invoice of lading, succeeded to the shipper’s rights and obligations.
CJEU DelayFix as Collins AG put it (45) “seems to undertake the identical method when, citing paragraph 65 of the judgment in CDC Hydrogen Peroxide, which in flip refers to paragraph 30 of the judgment in Coreck, it refers to ‘nationwide substantive legislation’”.
The CJEU within the instances at challenge firstly [48] holds
.. though it’s clear from [A25(1) BIa] that the substantive validity of a jurisdiction clause is to be assessed within the mild of the legislation of the Member State of the court docket or courts designated by that clause, the very fact stays that the enforceability of such a clause in opposition to a 3rd social gathering to the contract, similar to a third-party holder of the invoice of lading, is anxious not with the substantive validity of that clause, because the Advocate Normal noticed in factors 54 to 56 of his Opinion, however with its results, the evaluation of which essentially comes after the evaluation of its substantive validity, that latter evaluation having to be carried out by reference to the connection between the unique events to the contract.
[50] on the subject of Case 71/83 Tilly Russ and C‑543/10 Refcomp (itself borrowing from Correck Maritime, see above), the Court docket additionally reminds us
a jurisdiction clause included in a invoice of lading could also be relied on in opposition to a 3rd social gathering to the contract if that clause has been adjudged legitimate between the shipper and the provider and supplied that, by advantage of the related nationwide legislation, the third social gathering, on buying the invoice of lading, succeeded to the shipper’s rights and obligations. In such a case, there isn’t any want for the court docket seised of the matter to determine whether or not that third social gathering agreed to that clause [emphasis added]
In different phrases in such case the essential step of creating factual consent, ordinarily at all times required for selection of court docket beneath A25, is now not wanted.
Additional, [56], does A25 BIa preclude the Spanish laws at challenge “beneath which a 3rd social gathering to a contract for the carriage of products concluded between a provider and a shipper, who acquires the invoice of lading evidencing that contract and thereby turns into a third-party holder of that invoice of lading, is subrogated to the entire shipper’s rights and obligations, aside from these arising beneath a jurisdiction clause included within the invoice of lading, the place that clause is enforceable in opposition to that third social gathering provided that the third social gathering has negotiated it individually and individually”?
Right here, the CJEU [58] repeats that if “third-party holders of payments of lading [are]…subrogated [under the relevant applicable law] to the entire rights and obligations of the shippers involved…there isn’t any want to determine whether or not every of these third events truly accepted these clauses.”
[59] The related Spanish legislation in essence has the impact that the acquirer of the invoice of lading acquires the entire transferor’s rights and actions over the products, aside from jurisdiction clauses, which beneath that Spanish legislation require the precise consent of the acquirer. The results of the Spanish legislation is that these clauses are to be void and deemed to not exist in the event that they haven’t been individually and individually negotiated. This, the CJEU holds [60] circumvents A25 as interpreted in Coreck Maritime, Tilly Russ, Refcomp and many others. and can’t be so allowed. The nationwide court docket is instructed because of the primacy of EU legislation to interpret the Spanish legislation as a lot as potential consistent with the Regulation (reference [63] ex multi to CJEU Bezirkshauptmannschaft Hartberg-Fürstenfeld) and if no such interpretation apart from one contra legem is feasible, [65] to disapply the nationwide rule seeing as A25 BIa as a provision in a Regulation (cf. a Directive) is straight relevant.
In conclusion:
1. Article 25(1) [BIa]
have to be interpreted as which means that the enforceability of a jurisdiction clause in opposition to the third-party holder of the invoice of lading containing that clause isn’t ruled by the legislation of the Member State of the court docket or courts designated by that clause. That clause is enforceable in opposition to that third social gathering if, on buying that invoice of lading, it’s subrogated to the entire rights and obligations of one of many unique events to the contract, which have to be assessed in accordance with nationwide substantive legislation as established by making use of the foundations of personal worldwide legislation of the Member State of the court docket seised of the dispute.
2. Article 25(1) [BIa]
have to be interpreted as precluding nationwide laws beneath which a 3rd social gathering to a contract for the carriage of products concluded between a provider and a shipper, who acquires the invoice of lading evidencing that contract and thereby turns into a third-party holder of that invoice of lading, is subrogated to the entire shipper’s rights and obligations, aside from these arising beneath a jurisdiction clause included within the invoice of lading, the place that clause is enforceable in opposition to that third social gathering provided that the third social gathering has negotiated it individually and individually.
An essential judgment for the transport sector particularly and for the which means of ‘substantive validity’ in A25 BIa.
Geert.
EU personal worldwide legislation, 4th ed. 2024, 2.373 ff.
