The CJEU held final week in Joined Circumstances 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 Service Transport GmbH & Co.
The case issues enforceability of alternative of courtroom (within the instances at challenge: professional a courtroom in England) included in payments of lading towards third occasion holders of the payments. Every case was introduced previous to Brexit Implementation day and because of the UK-EU Withdrawal Settlement (A127(3)) absolutely topic to Brussels Ia. Mukkarum Ahmed had earlier signalled Collins AG’s Opinion during which his scholarship was justifiably cited.
Related Spanish regulation isn’t amongst these nationwide legal guidelines which settle for with relative ease that alternative of courtroom and regulation has binding impact on third occasion acquirers of the invoice, seeing because it gives:
In Part XI( of the preamble to Ley 14/2014 de Navegación Marítima (Transport Regulation 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 regulation of the European Union, seeks to stop the abuses recognized, by declaring void clauses which give for submission to a overseas jurisdiction or to arbitration overseas, contained in contracts for using a ship or in ancillary delivery 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 felony 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 regulation, gives:
‘With out prejudice to the provisions of the worldwide agreements relevant in Spain and to the foundations of EU regulation, clauses which give for submission to a overseas jurisdiction or to arbitration overseas, contained in contracts for using a ship or in ancillary delivery 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 Courtroom held that a jurisdiction clause integrated in a invoice of lading could also be relied on towards a 3rd occasion 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 regulation, the third occasion, 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 regulation’”.
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 gentle of the regulation of the Member State of the courtroom or courts designated by that clause, the very fact stays that the enforceability of such a clause towards a 3rd occasion to the contract, corresponding to a third-party holder of the invoice of lading, is worried not with the substantive validity of that clause, because the Advocate Basic 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] with regards to Case 71/83 Tilly Russ and C‑543/10 Refcomp (itself borrowing from Correck Maritime, see above), the Courtroom additionally reminds us
a jurisdiction clause integrated in a invoice of lading could also be relied on towards a 3rd occasion 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 regulation, the third occasion, on buying the invoice of lading, succeeded to the shipper’s rights and obligations. In such a case, there is no such thing as a want for the courtroom seised of the matter to determine whether or not that third occasion agreed to that clause [emphasis added]
In different phrases in such case the necessary step of creating factual consent, ordinarily at all times required for alternative of courtroom beneath A25, is not wanted.
Additional, [56], does A25 BIa preclude the Spanish laws at challenge “beneath which a 3rd occasion 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 integrated within the invoice of lading, the place that clause is enforceable towards that third occasion provided that the third occasion 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 is no such thing as a want to determine whether or not every of these third events truly accepted these clauses.”
[59] The related Spanish regulation 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 regulation require the precise consent of the acquirer. The results of the Spanish regulation 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 so on. and can’t be so allowed. The nationwide courtroom is instructed because of the primacy of EU regulation to interpret the Spanish regulation as a lot as potential according to the Regulation (reference [63] ex multi to CJEU Bezirkshauptmannschaft Hartberg-Fürstenfeld) and if no such interpretation aside 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 instantly relevant.
In conclusion:
1. Article 25(1) [BIa]
have to be interpreted as that means that the enforceability of a jurisdiction clause towards the third-party holder of the invoice of lading containing that clause isn’t ruled by the regulation of the Member State of the courtroom or courts designated by that clause. That clause is enforceable towards that third occasion 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 regulation as established by making use of the foundations of personal worldwide regulation of the Member State of the courtroom seised of the dispute.
2. Article 25(1) [BIa]
have to be interpreted as precluding nationwide laws beneath which a 3rd occasion 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 integrated within the invoice of lading, the place that clause is enforceable towards that third occasion provided that the third occasion has negotiated it individually and individually.
An necessary judgment for the transport sector particularly and for the that means of ‘substantive validity’ in A25 BIa.
Geert.
EU personal worldwide regulation, 4th ed. 2024, 2.373 ff.
