Fiche - Jurisprudence CMR

Numéro de la fiche : 42851

Pays : Pologne

Thèmes : CMR (Transport routier international) Compétence (art. 31) Clause attributive de juridiction (art. 31§1)

Date de la décision : 14/03/2019

Objet :
Forwarding contract or contract of carriage - Carriage of clothes from Germany to Russia - Subcontracting the carriage - Loss of goods – Jurisdiction – Form of an agreement conferring jurisdiction

Sommaire :
I., a company with a seat in Germany, entered into a contract with S., a company with a seat in Poland, called “transport order”, the subject of which was the carriage of clothes from Germany to Russia. The contract was concluded in electronic form. General terms and conditions were part of the contract providing, inter alia, for a prohibition on subcontracting carriage. The general terms and conditions also included a jurisdiction clause providing for the jurisdiction of the court in N. (Germany). S. subcontracted the carriage to M., a company with a seat in Bulgaria, without the consent of company I. During the transport, the goods were lost, probably stolen.
Company S. sued company I. before a court in Poland to establish that, as a freight forwarder, it was not liable for the damage. The issue in dispute was whether the Polish court had jurisdiction over the case. Company S. argued that it acted as a freight forwarder and justified the jurisdiction of the Polish court on the basis of Article 7(1)(a) of Regulation No. 1215/2012. Company I. took the position that the contract concluded was a contract of carriage. The lack of jurisdiction of the Polish court, according to company I., was therefore determined by the content of Article 31(1) CMR, as well as by the parties’ agreement conferring jurisdiction to the German court.
The Supreme Court held that the contract entered into by the parties was a contract of carriage governed by the CMR Convention. It recalled that, in such a situation, the rule governing jurisdiction is exclusively Article 31(1) CMR. The court stated that: "The CMR Convention (...) contains special rules excluding the application of rules of national law and international conventions to the matters regulated therein, including those relating to jurisdiction. Its scope applies to all disputes arising out of carriages subject to the Convention and the Convention’s provisions are mandatory". The court also referred to the jurisdiction clause contained in the general terms and conditions. It pointed out that "In the absence of specific provisions in the CMR Convention on the form and manner of conclusion of an agreement conferring jurisdiction, it is assumed that, in addition to the written form, it is enough to observe a form which is in accordance with a usage of which the parties are or ought to have been aware; any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’”. Referring to the rulings of the Court of Justice under Article 25 of Regulation No. 1215/2012, the Supreme Court, noticed that whether an agreement conferring jurisdiction has come into existence must be assessed autonomously, without the need to refer to national law. Recalling Article 25 of Regulation No. 1215/2012, the Court also stated that this kind of agreement must sufficiently specify the court or courts appointed to settle the dispute, and the dispute covered by the contract, or the legal relationship out of which the dispute is to arise. However, they do not have to be specified verbatim in the agreement; it is sufficient if the parties have specified it indirectly, for example by referring to the seat of one of them. The Supreme Court referred the same requirements to an agreement conferring jurisdiction under Article 31(1) CMR, ultimately concluding that, in the case, the provision contained in the general terms and conditions sent in the email met the requirements of an agreement conferring jurisdiction.

Référence :
the Supreme Court – Civil Division
Case n° IV CSK 6/18
S. Sp.j. with the seat in B., Poland c/a I. GmbH with the seat in N., Germany


http://www.sn.pl/sites/orzecznictwo/OrzeczeniaHTML/iv%20csk%206-18-1.docx.html

Observation :
In interpreting Article 31(1) CMR in relation to the agreement conferring jurisdiction, the Supreme Court referred to Article 25 of Regulation 1215/2012 and transposed the views expressed under this provision to the CMR Convention. It may be doubted whether this is in compliance with the principle of autonomous interpretation of the provisions of the CMR Convention.

Auteur :
dr Daniel Dąbrowski, University of Szczecin, Faculty of Law and Administration, Poland