Jurisdiction clauses in CMR transport
November 2024
In case of cross-border carriage by road, the question naturally arises which court has international jurisdiction to hear the dispute. This question has particular relevance in view of art. 29 CMR, which refers to the national law of the court seized for determining the question of whether there is fault equivalent to wilful misconduct. As views on this differ across CMR Member States, this means in practice that the limitation of liability[1] may be breached much more easily in one country than in another. This can make a big difference where the value of the cargo is high and the weight is low.
In the Netherlands, not only the CMR Convention applies, but also the Regulation no. 1215/2012. In Regulation no. 1215/2012, the European legislator laid down rules on the jurisdiction of the courts, and also on which court may decide first if proceedings are pending in two countries in relation to the same case.
The question then arises as to which of these rules takes precedence: the CMR or the European rules. The Court of Justice of the European Union (CJEU) rendered a number of judgments on this topic.
In TNT Express Nederland/AXA Versicherung AG[2], the CJEU held, in line with the text of the Regulation, that the rules on international jurisdiction of judgments laid down in special conventions to which the Member States were already parties when the Regulation entered into force, in principle prevail over the rules on international jurisdiction of the Regulation. In other words, the ’older’ convention takes precedence over the new Regulation. However, an earlier convention, such as the CMR, must comply with the principles of European law, and these principles include legal certainty, predictability of the choice of law and sufficient foreseeability. In short, the national courts can apply the jurisdiction rules of the CMR. And that means that the courts of the defendant's domicile and of the place of receipt or delivery of the goods have jurisdiction to hear the case.
The question is, however, whether an agreement to submit a case to a specific judge by exclusion of the other competent courts is legally valid in CMR transport.
The Gjensidige/Rhenus Logistics case was as follows. ACC Distribution entered into a contract with Rhenus Logistics to transport a consignment of computer equipment by road from the Netherlands to Lithuania. Some of the goods were stolen during the transport. The insurer, Gjensidige, paid for the cargo loss and acted as ACC Distribution's agent. Rhenus Logistics sued ACC Distribution and Gjensidige in the District Court of Zeeland-West-Brabant, claiming that it should be allowed to limit its liability. ACC Distribution and Gjensidige asked the court to decline jurisdiction or to stay the proceedings on the grounds that ACC Distribution and Rhenus Logistics had agreed that the Lithuanian court had jurisdiction to hear disputes arising from the performance of the transport contract. By decision of 23 August 2017, the District Court of Zeeland-West-Brabant dismissed ACC Distribution's and Gjensidige's action on the grounds that the agreed exclusive jurisdiction was not permitted under the CMR (Article 31, para. 1, CMR).
Gjensidige filed a recourse action in Lithuania, claiming damages from Rhenus Logistics. The Lithuanian court stayed the proceedings pending the outcome of the Dutch proceedings and, after the Dutch court had given judgment, dismissed Gjensidige's claim. Gjensidige appealed and the case was eventually referred to the CJEU. The Court had to consider whether an exclusive jurisdiction clause can be agreed upon. This is possible under Regulation no. 1215/2012 and not under the CMR.
In summary, the CJEU[3] held that the CMR is an ’older convention’ and that the rules on international jurisdiction in the CMR do not conflict with European law. The Lithuanian court will therefore be able to recognise the Dutch judgment despite the fact that Rhenus Logistics brought the case before a court (the District Court of Zeeland-West-Brabant) other than the one agreed between the parties (the Lithuanian court).
It is therefore concluded that exclusive jurisdiction clauses in CMR transport are of little value. If the court applies the rules of the CMR, only an additional choice of court can be agreed upon. The CMR does not allow exclusive jurisdiction. So under the CMR you can only agree that an additional court has jurisdiction, but you cannot exclude the jurisdiction of the courts of the defendant's domicile or of the place of receipt or of the place of delivery of the goods.
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[1] 8,33 SDR p/kg (ca. € 10,- p/kg) of the damaged or lost goods.
[2] eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62008CJ0533.
[3] Gjensidige.
