In an important decision, the Supreme Court recently established the validity of a forum selection clause contained in a multimodal bill of lading.
The case involved the multimodal carriage of a consignment of Arabica coffee from Nicaragua to Italy. The cargo receivers had contracted the freight forwarder to arrange for the transportation of the cargo from the production plant in Nicaragua to the Port of Trieste. The first leg of the carriage was to be performed by road and the second by sea. Thus, the freight forwarder arranged the carriage with the carrier, which then collected the cargo from the production plant to carry it to the loading port of Corinto.
During the carriage by road, the cargo was stolen. The receivers started proceedings before the Tribunal of Genoa against the carrier to obtain compensation for the loss of the goods. The carrier disputed the claim and, by relying on the exclusive jurisdiction clause contained on the reverse side of the relevant bill of lading that referred to the English courts, challenged the Italian tribunal's jurisdiction by maintaining the exclusive jurisdiction of the courts in London.
The claimants objected that the clause was not applicable by arguing that, contrary to the ambit of the carriages by sea, in the context of multimodal carriages there is no custom of trade regarding the inclusion of jurisdiction clauses into bills of lading when the document is not countersigned by the shipper or receiver.
Thus, while the proceedings at first instance were pending before the Tribunal of Genoa, the carrier sought a preliminary ruling from the Supreme Court on the question of jurisdiction, as per Article 41 of the Code of Civil Procedure, by asking the United Sections of the Supreme Court to make an irrevocable decision on the jurisdiction issue.
The Supreme Court upheld the validity and enforceability of the jurisdiction clause contained in the multimodal bill of lading and found that the Italian courts had no jurisdiction over the case. Its ruling brought an end to the proceedings pending before the Tribunal of Genoa.
The decision was grounded on the following reasons:
- The court held that the jurisdiction clause incorporated in the multimodal bill of lading was valid under Article 17(C) of the Brussels Convention 1968 and Article 23 of the EU Brussels I Regulation (44/2001). The court explained that, according to the abovementioned rules, it is possible to presume the parties' consent to the validity of the jurisdiction clause where commercial usages of which the carrier and the receiver are or ought to have been aware exist in this regard in the relevant branch of international trade or commerce. In this respect, the court held that it is normal practice in the international transport business (including multimodal transport) that bills of lading are signed only by the carrier. Such practice is regarded as a commercial usage, of which international trade operators should be aware.
- Further, the Supreme Court argued that by starting the proceedings before the Tribunal of Genoa, the plaintiffs in this case had disclosed the bill of lading with no reservation or objection. As such, they were bound by the jurisdiction clause, since such a disclosure proved that the plaintiffs were relying on the terms and conditions of the bill of lading, including the jurisdiction clause contained therein.
The Supreme Court judgment is notable as it overturns the main trend in Italian case law on this subject. Before the issuance of the Supreme Court judgment, many lower courts had denied the validity of jurisdiction clauses contained in multimodal bills of lading.
Although precedents are not binding in Italy, the principles expressed in the Supreme Court decision will certainly have a broader effect in practice, since they will be widely followed by the lower courts.
For further information on this topic please contact Luca Di Marco at Dardani Studio Legale by telephone (+39 010 576 1816) or email ([email protected]). The Dardani Studio Legale website can be accessed at www.dardani.it.
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