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 Delivery GmbH & Co.
The case issues enforceability of alternative of courtroom (within the instances at situation: professional a courtroom in England) included in payments of lading in opposition to third occasion holders of the payments. Every case was introduced previous to Brexit Implementation day and on account 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 shouldn’t be amongst these nationwide legal guidelines which settle for with relative ease that alternative of courtroom and legislation 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 (Delivery 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] incorporates the particular guidelines of jurisdiction and competence and, continuing on the idea 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 international 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. …’
Below 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, apart 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, gives:
‘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 international 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 included in a invoice of lading could also be relied on in opposition to a 3rd occasion to that contract if that clause has been adjudged legitimate between the service and the shipper and supplied that, by advantage of the related nationwide legislation, 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 strategy 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 situation 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 legislation of the Member State of the courtroom or courts designated by that clause, the actual fact stays that the enforceability of such a clause in opposition to a 3rd occasion to the contract, akin to a third-party holder of the invoice of lading, is worried 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] as 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 included in a invoice of lading could also be relied on in opposition to a 3rd occasion to the contract if that clause has been adjudged legitimate between the shipper and the service and supplied that, by advantage of the related nationwide legislation, the third occasion, 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 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 vital step of creating factual consent, ordinarily at all times required for alternative of courtroom beneath A25, is now not wanted.
Additional, [56], does A25 BIa preclude the Spanish laws at situation “beneath which a 3rd occasion to a contract for the carriage of products concluded between a service 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 all the shipper’s rights and obligations, apart from these arising beneath a jurisdiction clause included within the invoice of lading, the place that clause is enforceable in opposition to 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 all the 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 all the transferor’s rights and actions over the products, apart 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 so forth. and can’t be so allowed. The nationwide courtroom is instructed on account of the primacy of EU legislation to interpret the Spanish legislation as a lot as attainable according to 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 instantly relevant.
In conclusion:
1. Article 25(1) [BIa]
should be interpreted as that means that the enforceability of a jurisdiction clause in opposition to the third-party holder of the invoice of lading containing that clause shouldn’t be ruled by the legislation of the Member State of the courtroom or courts designated by that clause. That clause is enforceable in opposition to that third occasion if, on buying that invoice of lading, it’s subrogated to all the rights and obligations of one of many authentic events to the contract, which should 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 courtroom seised of the dispute.
2. Article 25(1) [BIa]
should be interpreted as precluding nationwide laws beneath which a 3rd occasion to a contract for the carriage of products concluded between a service 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 all the shipper’s rights and obligations, apart from these arising beneath a jurisdiction clause included within the invoice of lading, the place that clause is enforceable in opposition to that third occasion provided that the third occasion has negotiated it individually and individually.
An vital judgment for the transport sector particularly and for the that means of ‘substantive validity’ in A25 BIa.
Geert.
EU non-public worldwide legislation, 4th ed. 2024, 2.373 ff.