Article 31.1 of the Convention on the Contract for the International Carriage of Goods by Road, set out in the Schedule to the Carriage of Goods by Road Act 1965, restricted the courts where an action could be brought against a defendant, and the fact that the English court had jurisdiction under article 31.1 to entertain an action against one of a series of carriers of the same goods did not enable successive carriers of those goods, in respect of whom the court did not otherwise have jurisdiction under article 31.1, to be joined in the same proceedings.

Cooke J so held in granting applications by the second and fourth defendants in the first action, H Essers Security Logistics BV and H Essers Transport Co Nederland BV (collectively “Essers”), and the second defendant in the second action, Kazemier Transport BV (“Kazemier”), to set aside service of claim forms which had been served upon them out of the jurisdiction by the claimants, which were all companies in the British American Tobacco group, on the basis that the English court had no jurisdiction under article 31.1 to try the claims against them. The claimants had contracted with the first defendant, Exel Europe Ltd (an English company), for the carriage across Europe of consignments of tobacco belonging to them. The first defendants had sub-contracted the carriage (in the first action) to Essers and (in the second action) to Kazemier, both of which had registered offices and principal places of business in The Netherlands. The claimants had brought two distinct actions in respect of the loss or theft of part or all of the consignments in the course of their carriage across Europe, asserting that the English court had jurisdiction in respect of all the defendants under article 31.1 of the Convention.

Article 31.1 provides: “ In legal proceedings arising out of carriage under this Convention, the plaintiff may bring an action … in the courts or tribunals of a country within whose territory (a) the defendant is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract of carriage was made, or (b) the place where the goods were taken over by the carrier or the place designated for delivery is situated, and in no other courts or tribunals.”

COOKE J said that the claimants had submitted that the scheme of the Convention required that, where a claimant could commence proceedings against any one carrier in accordance with the provisions of article 31, it could also sue any other carrier which it was entitled to sue under article 36, in the same action, in that jurisdiction. That was said to arise from the terms of those articles and the policy which underlay article 39: the need to avoid multiple proceedings and the risk of inconsistent judgments by different courts in different jurisdictions. Alternatively, the claimants contended, the wording of article 31, which specifically covered the position of a defendant but did not expressly deal with multiple defendants sued by a goods owner whether the sender or the consignee, had to be construed flexibly to achieve that result in order to ensure the sound administration of justice. In his Lordship’s judgment article 31 placed a restriction on the courts where an action could be brought against a defendant, without specifying the identity or role of the defendant in question. It was plainly apt to cover any claim made against a sender or consignee in respect of freight due or expenses incurred in carrying dangerous cargo as well as a claim by a sender or consignee against a carrier. Articles 34, 36 and 39 specifically related to the position where successive carriers were involved in the haulage; article 34 provided for joint and several liability of successive carriers, article 36 provided that an action could be brought against several specified carriers at the same time and article 39.2 set out the courts in which one carrier could pursue another carrier. The contrast between article 31 and article 39 was striking and there was no room for construing article 31.1 in accordance with the principles underlying article 39 when article 31.1 was in such different terms. Article 31 was directed to the basic position where a claimant wished to bring an action against a particular defendant. The provisions of the Convention were apt to provide for a number of different jurisdictions in which the claimants could bring claims, including some jurisdictions where they could bring claims against all the defendants. If however, as they had done, the claimants elected to bring proceedings against the first defendant in England, that was not sufficient to bring other carriers within the reach of the court, without being able to satisfy the requirements of article 31.1 in relation to each such defendant.