In a transport of goods contract, who can commence proceedings for both the loss and the delay?
As per article 32 of the CMR, the period of limitation for an action arising out of carriage is one year. The period starts to run from the time of the delivery where there has occurred partial loss and delay as per 32.1a of the CMR. Yet, in the case of willful misconduct the period of limitation is three years. In this case the period will take effect from March 16th regardless of the fact that the proceedings ensue after the rejection on December 1st because that will still be within the time frame of one year, regardless of the rejection by Barry White Trans BV’ (BWT) claim.
Is the action started by Guiness on November 25th 2015 still in time?
The action started by Guinness is in time. According to the CMR, the period of limitation for an action can be suspended by a written claim until the time of rejection of that claim, 32.2 CMR. In this case, the period of one year has not ended at 25th of November 2015 since the claim was rejected by BWT on December 1st 2014.
Could it be relevant for your answer to the previous question that after the rejection GI repeated the claim?
Multiple suspensions are not allowed under the CMR. It was ruled in the Dutch Supreme Court case, ‘the Brinky case’ that article 32.3 of CMR allows national law to govern the method of suspension and extension.
For the next questions, assume that the action was started timely.
Where can GI start proceedings under CMR?
The rules regarding the commencement of legal proceedings can be found in Art 31.1 of the CMR. The proceedings in this case could either take place in a court in either Netherlands, Ireland or Germany. However, in the contract it is stated that only Belgian courts will have exclusive jurisdiction. According to Article 41 of the CMR, derogating from the principle will render any contravening exclusive jurisdiction clause, such as in the contract, null and void. The claimant can, however rely on the ruling in the case of Nipponcoa v Inter-Zuid and TNT v AXA where it was decided that 71 of Brussels I (BIS) precludes an international convention from being interpreted in a manner that fails upholds a clause that is least favourable to claimant. Following this line of thought, declaring void the exclusivity of the Belgian courts results in a situation for the claimant that is less favorable than the situation described in 31.2 of Brussels I (BIS). Thus, it really depends where GI can start proceedings as many options are open to them.
Would your answer to this question be different if it was a contract for the carriage of goods by sea, governed by HV?
The Hague-Visby Rules (HVR) do not contain any provision regarding exclusive jurisdiction. However, exclusive jurisdiction as agreed upon by GI and BWT under art 25 Brussels I in case would be allowed.
BWT started an action for a declaratory relief before the Italian Courts. Italian courts are known for the lengthy proceedings. When can GI start proceedings before a competent court?
The first ruling or proceeding has to be taken before an Italian Court. The ‘Lis Pendens’ rule as per art. 71 of Brussels (I) bis Regulation states that when a convention contains jurisdiction rules including rules on lis pendens, those will prevail over any other regulation. However, pursuant to 31.2 of the CMR no other actions by any court outside of Italy can be taken until and unless the court first seized delivers its decision i.e. the Italian court. The CMR will be followed due to article 71 of the Brussels regulation.
Would your answer to the previous question be different if the means of transportation was unspecified and GI starts an action before a Belgian court.
Where there is no consent on the means of road transporation, CMR does not apply. Article 31.2 Brussels I (BIS) will be applicable in this case where the first court seized, in this case Belgium, has decided on its own competence.
If this Belgian court renders a judgment, can BWT then get the Dutch courts to refuse enforcement of this judgment?
This case will be governed by Brussels (I) bis regulation because EU law has priority over national law so Brussels (I) bis regulation will apply. Article 31.3 CMR states that national law will need to be adhered to but national law does not prevail. states that as soon as the formalities required in the country concerned have been complied with, the judgement shall be enforceable in each of the other contracting states. Pursuant to the article 46 and article 45.1 of Brussels (I) bis Regulation the Dutch courts cannot refuse to enforce a judgement due to multiple factors where if; a) rules on jurisdiction do not fall within the concept of public policy, b) there is no a previous judgment of a Dutch court between the same parties, and c) there is no a earlier irreconcilable judgement involving same cause of action and between the same parties.
What could GI have done to ascertain that the case would be decided by a Belgian jurisdictional authority, in order to benefit from the more favorable position with regards to value added taxes and excise duties?
The parties can include a exclusive jurisdicion clause stating that the proceeding will take place in a Belgian court as per the ruling of Nipponcoa v Inter-Zuid and TNT v AXA.
Alternatively, they can conclude a contract of carriage with prerogation clause by road which would be governed by the CMR. This way parties can conclude contract of carriage by road governed by CMR where Guinness should seize a Belgian court before BTW can have the chance to reach another court in another Member State.
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