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Opinion of Advocate General TANCHEV, 10 April 2018, Zurich Insurance plc and Metso Minerals Oy v Abnormal Load Services Limited — Brussels I Regulation — Jurisdiction in matters relating to contracts — Damages — Determination of the place of performance of the obligation — Place where the services were provided or should have been provided in a Multimodal transport

On April 10th, 2018, Advocate General Tanchev delivered his opinion in Case C-88/17, concerning international jurisdiction in respect of a claim for contractual damages under the second indent of Article 5(1)(b) of Brussels I Regulation, in a context entailing the multimodal transport of goods from one Member State to another.

Facts of the case

ALS is a British hauiler, which concluded a contract for the carriage of goods with Metso Minerals Oy.

ALS, with the help of subcontractors, transported the goods, firstly, from Pori to Rauma in Finland by a lorry with a low loader. At Rauma, they was unloaded from the lorry and driven on to a ship under its own power. After transport by sea to the United Kingdom, the goods were again driven under its own power off the ship in the port of Hull and loaded onto another lorry. As Metso’s consignee did not have sufficient or adequate storage capacity, it asked a sub-contractor of ALS to drive the goods to its own warehouse and keep them there temporarily for a couple of days.

The goods were stored there for a longer period, and disappeared before it could be delivered to the consignee in Sheffield.

ALS contests the international jurisdiction of the Finnish courts, whereas the Finnish, Portuguese and Swiss Governments as well as the Commission take the view that Finnish courts have international jurisdiction. The same argues that only the place of unloading may be deemed to be the place of performance, claiming that the place of performance can only be one single place and that the place of final destination is of considerably greater importance than the place of dispatch.

The arguments

The Advocate general recalls the Court’s judgments in Rehder (Judgment of 9 July 2009, Rehder, C‑204/08, EU:C:2009:439) and flightright and Others, (Judgment of 7 March 2018, flightright and Others, C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160) where the Court held, in the context of passenger transport by air, that jurisdiction in respect of contractual damages may lie at both the place of boarding and the place of final destination. To summarise, as far as delayed flights and the damages to be paid for breach of this type of contract for carriage are concerned, the Court considers both the place of departure and the place of the final destination to be equally significant under the contract, thereby establishing a sufficient territorial link between these places and any proceedings arising from the contractual situation.

In the absence of any precedent in the Court’s case‑law directly addressing the issue of jurisdiction with respect to breach of a contract for the multimodal carriage of goods between Member States, in the opinion of the AG, the question to be answered by the Court in the case at hand is whether the rule developed in the context of passenger travel by air is applicable to the situation at hand.

As regards both multimodal carriage of goods and segmented flights, the two main places where services are provided are interlinked by the boarding pass, in the case of air transport, and the contract between the dispatcher and the haulier, in the case of multimodal transport. The purpose underlying such a contract, namely to move an item from one defined location to another such location, that is to transport it from A to B, makes these two places two ends of one spectrum, even though there may be distance and time between them. The purpose of the contract is simply to cover this distance. Both these places — departure and destination — are fundamental to the contract for the carriage of goods and only together form its essential and characteristic elements.

Moreover, it is common practice not to mention the places of reloading or reshipping in contracts of the kind in issue in the main proceedings. The element of foreseeability which the Court emphasised in Rehder and flightright and Others and the imperative of limiting forum shopping means that places of reloading fall outside the concept of ‘the place of performance’ under the second indent of Article 5(1)(b) of the Brussels I Regulation. According to the Court’s case-law, the place of performance must be inferred, as far as possible, from the provisions of the contract itself.

For these reasons, the AG held that the differences between the situations that are compared in the case — the carriage of passengers by air on the one hand and multimodal carriage of goods on the other hand — are not so significant as to warrant the application in the main proceedings of an approach that differs from that applied in Rehder and flightright and Others.

The suggested conclusion

In the light of the foregoing, the AG Tankev suggested that the question referred by the Korkein oikeus (Supreme Court, Finland) should be answered as follows:

«The place or places where the service is provided, for the purpose of the second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in a case involving a contract for the carriage of goods between Member States in which the goods are conveyed in several stages and by different means of transport include the place of dispatch».

Updated: April 23, 2018 — 8:08 am

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