In (1) Emmerich Hatzl (2) Leopold Baumgartner v Xl Insurance Co Ltd – Lawtel 19.3.09 thirty-seven boxes of women’s clothing had been stolen whilst in transit by road from the premises of the consignor, the first Defendant, to the premises of the consignee, the second Defendant. The consignor and consignee had assigned their rights of action to their insurer, the third Defendant. The Claimants, who were the operator of the haulage business and the driver responsible for the consignment, commenced an action for declaration of non-liability in England pursuant to article 31, CMR. Article 31 provides, inter alia, that an action may be brought against the Defendant in their ordinary residence or principal place of business. This, for the insurer, was England.
The English court held that it had jurisdiction in respect of the claim of the Respondents (Claimants) for declarations of non-liability.
The Appellant (third Defendant) insurer appealed against that decision. It contested the jurisdiction arguing that the Convention did not give the English court jurisdiction simply because the insurer was sued in England and was resident or had its principal place of business in England since art.31(1)(a) did not apply to a defendant sued purely as assignee of the rights of the consignor or consignee.
The Court of Appeal held that the necessary purposive approach led to the conclusion that assignees were not included within the expression "the defendant" in art.31 (1) (a). The context of art.31(1)(a) and its place within the Convention strongly supported the view that it was primarily, and perhaps exclusively, concerned with jurisdiction in actions between the parties to whom the Convention ascribed, or was to be taken to ascribe, rights and/or liabilities, namely carriers, senders and consignees. The word "defendant" extended to the parties to the contract, and probably also to others to whom the Convention ascribed rights and duties, but did not extend to an assignee, even if he was also an insurer.
It did not follow from a right of assignment, or from the fact that the Carriage of Goods by Road Act 1965 recognised that assignees might be concerned in the carriage, that art.31(1)(a) conferred jurisdiction on the residence or place of business of the assignee.