Introduction
Facts and Procedure
Judgment
Conclusion
Introduction
The Danish Supreme Court's judgment of March 24 2000 establishes that recourse action taken between successive road carriers may only be initiated in Denmark if one or more of the carriers against whom recovery is sought has the necessary connection with Denmark, as referred to in Article 39.2 of the CMR Convention.
Until recently, it was understood that under Danish law a contracting road carrier wishing to enforce his right of recovery against a foreign domiciled sub-carrier could bring recourse action before the Danish court where he had been sued by the cargo claimant. The interpretation of Article 39.2 was that such recourse action could be brought in Denmark if the claimant carrier had his principal place of business, or the branch or agency through which the contract of carriage was made, in Denmark.
In an article published by Dragsted Schlüter Aros in the Danish weekly law report (UfR 1999B.10ff) this interpretation was questioned. It was alleged that the interpretation is not in accordance with the wording of Article 39.2 or the corresponding Danish act implementing this article. Furthermore, it was stated that such an interpretation is contrary to interpretations of the same article in other contracting states, including England and Germany. Article 39.2 reads as follows:
"A carrier wishing to take proceedings to enforce his right of recovery may make his claim before the competent court or tribunal of the country in which one of the carriers concerned is ordinarily resident or has his principal place of business, or the branch or agency through which the contract or carriage was made. All the carriers concerned may be made defendants in the same action."
Facts and Procedure
After this article was published, Dragsted Schlüter Aros represented an Estonian road carrier who was sued in Denmark by a Danish contracting carrier. The circumstances of the case were as follows: on May 21 1996 the shipper, McVities UK, as seller, entered into a purchase agreement with a Russian buyer, Longwood Moscow, for a consignment of biscuits. The Moscow office of McVities contracted out the road transport of the biscuits from Tallinn to Moscow, to the Russian branch of the Danish carrier Blue Water Shipping. Blue Water Shipping, however, sub-contracted the road transport to an Estonian road carrier, Melship Eesti, who in turn sub-contracted the same transport to another Estonian sub-carrier OU Rakvare Autobaas. OU Rakvare Autobaas took over the consignment of biscuits in Tallinn, where it had arrived by ship from England on May 27 1996. The consignment arrived in Moscow on May 29 1996, where the OU Rakvare Autobaas driver was apparently fooled into delivering the consignment to the wrong consignee.
The shipper's cargo underwriters initiated proceedings against the Danish contracting carrier, Blue Water Shipping, before the Maritime and Commercial Court in Copenhagen. Blue Water Shipping then arranged for service of a third-party notice on their sub-carrier, Melship Eesti, before the same Danish court.
Melship Eesti contested the competence of the Danish court to hear the recourse claim in accordance with Articles 31.1 and 39.2 of the CMR Convention. Melship Eesti claimed that Article 31.1 was not applicable because it only applies to proceedings initiated by the cargo interest against a carrier, and that it does not apply to recourse proceedings initiated between carriers. Furthermore, Melship Eesti had neither its ordinary place of business, nor a branch or agency in Denmark, nor had it taken over the goods in Denmark. With respect to Article 39.2, Melship Eesti interpreted the article to mean that a recourse claim could only be initiated in the country where one of the carriers, against whom the recourse action is brought, has its ordinary residence, or the branch or agency through which the contract of carriage was made.
Judgment
On May 20 1999 the Maritime and Commercial Court (H-0129-98) ruled in favour of Melship Eesti and dismissed the case due to a lack of jurisdiction under the CMR Convention. The Maritime and Commercial Court referred to the following grounds:
"Recourse actions between successive road carriers may only be initiated in Denmark if one or more of the carriers against whom the first carrier is seeking recovery has the relevant connection to Denmark referred to in Article 39.2."
The carrier seeking recourse, Blue Water Shipping, appealed to the Danish Supreme Court (I 256/1999) which, on March 24 2000, upheld the Maritime and Commercial Court's judgment on the same grounds.
Conclusion
This judgment does not answer every question relating to the interpretation of the jurisdiction provisions in Articles 31.1 and 39.2 of the CMR Convention. For example, the important question remains whether a successive road carrier wishing to take proceedings to enforce his right of recovery can make his claim before a Danish court even if the defendant carrier does not have the relevant connection to Denmark referred to in Article 39.2 if the defendant carrier took over the goods in Denmark.
For further information on this topic please contact David Rubin or Jesper Windahl at Bech-Bruun Dragsted by telephone (+45 77 33 77 33) or by fax (+45 77 33 77 44) or by e-mail ([email protected] or [email protected]).
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