The claimant cargo owners, the appellants, were various companies within the British American Tobacco group (BAT). The principal carrier in both actions was Exel Europe Ltd (Exel). It contracted with BAT on an agreement(s) which contained English law and exclusive jurisdiction clauses.

The successive carrier in the BAT Switzerland action was H Essers Security Logistics BV (Essers). The successive carrier in the case of BAT Denmark was Kazmier Transportation BV (Kazemier). Both Essers and Kazemier sub-contracted with Exel on Exel's Transportation Terms & Conditions, which contained their own English law and jurisdiction clauses. However, there was no direct contractual link between BAT and either sub-contractor.

The BAT Switzerland tobacco cargo was loaded in Switzerland on 2 September 2011 and was due to be transported by road to Rotterdam. It was allegedly stolen in an armed robbery on a motorway in Belgium on 3 September 2011. The BAT Denmark cargo was loaded in Hungary on 15 September 2011 and was due to be transported to Denmark. It was alleged that 18 pallets of cigarettes were stolen while the vehicle was parked in an overnight parking area.

BAT sued both Exel and Essers in the first action, and both Exel and Kazemier in the second action. Exel accepted English jurisdiction, as it was bound to do. However, Essers and Kazemier challenged English jurisdiction on the basis of the provisions of art 31.1 of the CMR.

The structure of the CMR is to make primary carriers fully liable to both senders and consignees over the whole length of a CMR contract of carriage, and to enable primary carriers and sub-contracting carriers ('successive carriers') to dispute and/or share liability among themselves. However, at the same time, it allows a sender or consignee to sue directly on the CMR's 'contract of carriage' any of the successive carriers who become a party to that contract by reason of their acceptance of the goods and the consignment note (art 34).

In the appeals, it was common ground Essers and Kazemier were parties to the CMR contracts and BAT could sue directly 

The issue, however, was whether BAT could sue them in England.

Essers and Kazemier submitted that they could not be sued in England, but only where they were present (the Netherlands) or where the goods where taken over (Switzerland or Hungary) or due to be delivered (the Netherlands or Denmark). They submitted this was the effect of CMR art 31.1 which lists the places suit may be brought and concludes 'and in no other courts or tribunals'.

BAT was unwilling to sue in continental countries, such as the Netherlands, because the Dutch courts (for example) would not include the duty paid on the list cigarettes within the recoverable damages. The English courts, however, construe the CMR as permitting such recovery. Since duty is 90% of the cost of the lost cigarettes, this was a meaningful consideration.

BAT's primary submission in these appeals was that there was jurisdiction by reason of art 36 over any/all of the successive carriers if there was jurisdiction under art 31.1 over any of them.

As an alternative basis of jurisdiction, BAT submitted that the jurisprudence of the European Court of Justice (the ECJ) required that the CMR be interpreted so as to promote and not to undermine the principles of the Judgment Regulation (previously the Brussels Convention), in terms of the avoidance of dual proceedings in more than one jurisdiction. It was for the sake of such principles that the Judgment Regulation contains its art 6.1 allowing parties to be joined in an action on what the English think of as a ‘necessary or proper’ basis. Even if the CMR cannot prima facie be so interpreted, ECJ jurisprudence now gives the principles of the Judgment Regulation priority or paramountcy, despite the apparent sense of its own art 71.1 which states that: 'This Regulation shall not affect any conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments.’

Held: It is necessary to consider the convention as a whole and to give it a purposive interpretation.

In its place in the CMR, art 31 is primarily concerned only with, on the one side, cargo interests in the form of the sender or consignee and, on the other side, the carrier. The concept of the 'successive carrier' has not been introduced. That comes only in articles 34ff. Reference is made to further signs in art 31.1 that it is not addressing the possibility of multiple carrier defendants. For example, art 31.1 refers to 'the defendant', not 'a defendant' or the 'defendants'.

It ought to be in chapter IV of the CMR, containing articles 34-40, which set out the 'Provisions relating to carriage performed by successive carriers', that we learn about the jurisdictional requirements of claims against successive carriers. Articles 34ff contain provisions not only about claims between successive carriers but also claims by cargo interests against successive carriers. So far as claims between successive carriers are concerned, it is common ground that art 39.2 contains jurisdictional provisions in relation to them; and the effect of those provisions is that one successive carrier may sue all the successive carriers concerned where any one of them may be found or have jurisdiction asserted over him within the terms of art 39.

Art 39.2 addresses expressly the concept of establishing jurisdiction in a country where 'one of the carriers concerned' has presence. The wording then continues 'all the carriers concerned may be made defendants in the same action'. A pragmatic interpretation of the wording in art 39 is to understand it as confirming that jurisdiction against all can be achieved by establishing jurisdiction against one, and a similar purposive pragmatism produces the same or a similar answer in relation to a cargo claim against successive carriers (just as in a claim by the primary carrier against successive carriers). 

In summary, a purposive interpretation of the CMR allows jurisdiction to be obtained over the successive carriers against whom suit is permitted to the sender or consignee (pursuant to art 36), at least in circumstances where jurisdiction can be obtained against the primary carrier under the contract of carriage pursuant to art 31.1. In other words, the appeal would be allowed, and BAT could sue Essers and Krazmier in England.

The court was bolstered in its conclusion by the fact that: (a) there is no decision of any court to the contrary, and (b) the dicta and reasoning in Cummins Engine Co Ltd v Davis Freight Forwarding (Hull) Ltd [1981] 2 Lloyd's Rep 402 (CA), ITT Schaeuble-Lorenz Vertriebgesellschaf mbH v Birkart Johann Internationale Spedition mbH [1988] 1 Lloyd's Rep 487 (CA) and Frans Maas Logistics (UK) Ltd v CDR Trucking BV [1999] 2 Lloyd's Rep 179 are highly supportive of this conclusion.

As to the submission regarding the Judgment Regulation, the court cited The Owners of the cargo lately laden on board the 'Tatry' v. The Owners of the ship 'Maciej Rataj' [1994] ECR 1-5439, [1999] QB 515. In that case the question was whether the lis pendens provisions of the then Brussels Convention, arts 21 and 22, could supplement the specialist convention on the arrest of seagoing ships (the Arrest Convention 1952). The ECJ held that it could and did, despite art 57 of the Brussels Convention (the predecessor of art 71.1). The reasoning of the ECJ displayed the narrow distinctions possible:

Article 57 introduces an exception to the general rule that the Convention takes precedence over other conventions signed by the Contracting States on jurisdiction and the recognition and enforcement of judgments. The purpose of that exception is to ensure compliance with the rules on jurisdiction laid down by specialized conventions, since in enacting those rules account was taken of the specific features of the matters to which they relate.

That being its purpose, Article 57 must be understood as precluding the application of the provisions of the Brussels Convention solely in relation to questions governed by the specialized convention. A contrary interpretation would be incompatible with the objective of the Convention which, according to its preamble, is to strengthen in the Community the legal protection of persons therein established and to facilitate the recognition of judgments in order to secure their enforcement. In those circumstances, when a specialized convention contains certain rules of jurisdiction but no provision as to lis pendens or related actions, Articles 21 and 22 of the Brussels Convention apply.

The cargo owners argue that the Arrest Convention contains provisions relating to lis pendens in Article 3.3, which provides: 'A ship shall not be arrested…more than once in any one or more of the jurisdictions of any of the Contracting States in respect of the same maritime claim by the same claimant'.

The cargo owners' argument cannot be accepted. Where an arrest has already been made in the jurisdiction of a Contracting State, Article 3.3 of the Arrest Convention prohibits a second arrest by the same claimant in respect of the same claim in the jurisdiction, in particular, of another Contracting State. Such a prohibition has nothing to do with the concept of lis pendens within the meaning of Article 21 of the Brussels Convention. That provision is concerned with the situation where proceedings are brought before two courts both of which have jurisdiction and it governs only the question which of those two courts is to decline jurisdiction in the case.

The answer to the third question therefore is that, on a proper construction, Article 57 of the Convention, as amended by the Accession Convention, means that, where a Contracting State is also a contracting party to another convention on a specific matter containing rules on jurisdiction, that specialized convention precludes the application of the provisions of the Brussels Convention only in cases governed by the specialized convention and not in those to which it does not apply.

It follows from Tatry that art 71.1 reflects an exception to the general principle of dominance for the Judgments Regulation. If therefore the provisions relating to jurisdiction of a specialised convention are to fall within that exception and oust the Judgments Regulation, they will be carefully scrutinised for inconsistency.

The underlying principles of the Judgments Regulation will be available to fill a gap left by the jurisdictional provisions of the CMR. In this connection, the jurisdictional provisions of the CMR will not readily be given a wider import conflicting with the principles of the Judgment Regulation, and a strict construction will therefore be applied to the question whether the principles of the Judgments Regulation are ousted. Tatry is an example of that approach in European law.