December 07 2016
In recent years, the Spanish courts have increasingly dismissed cargo claims brought by cargo owners or their subrogated underwriters, citing a lack of jurisdiction due to the inclusion of a jurisdiction clause in the bill of lading. This is in accordance with the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and the EU Brussels I Regulation (44/2001). However, in some cases, the courts have followed this trend without performing a strict analysis of the jurisdiction clause in question, thereby accepting clauses of questionable validity.
As 75% of cargo imported to and exported from Spain is carried by foreign shippers, it is unsurprising that this trend has been unpopular with the shipping industry.
The Maritime Navigation Act (14/2014) – which aimed to unify and significantly reform Spanish maritime law – addressed jurisdiction clauses in respect of the above trend. However, it also echoed the shipping industry's view to a certain extent. The act's introduction declares that it contains "specialities of jurisdiction and power" which – based on the preferential application of international conventions and EU law in this matter – aim to prevent abuse by declaring that clauses submitting to a foreign jurisdiction or arbitration abroad are null where they have not been negotiated individually and separately.
In this regard, Article 468 of the act states that, without prejudice to the terms foreseen in the international conventions in force in Spain and EU law, clauses submitting to a foreign jurisdiction or arbitration abroad – as set out in the ship's contract of use or in ancillary navigation constraints – will be null and void and considered not to be included where they have not been negotiated individually and separately. Further, Article 468 states that the inclusion of a jurisdiction clause in the bill's written conditions will not be considered proof of the fulfilment of the required requisites.
Further, Article 251 of the act establishes that the acquirer of a bill of lading will acquire all of the conveyor's rights and responsibilities regarding the goods, with the exception of agreements regarding jurisdiction and arbitration, which require the acquirer's consent.
The Valencia Court of Appeal recently issued three decisions on the above matter, most recently on November 16 2016. Two of the decisions found in favour of the jurisdiction clause specifying an EU court, pursuant to the recast EU Brussels Regulation (1215/2012). However, the third decision rejected the validity of the jurisdiction clause on the grounds that the plaintiff failed to prove that he had consented to the jurisdiction clause or known of the tradition in international commerce to incorporate jurisdiction clauses in bills of lading.
These decisions show that the examination of jurisdictional submission clauses in bills of lading should be done on a case-by-case basis. This is a welcome result – although it is a basic concept, not all courts have conducted an individual analysis when examining jurisdiction clauses in previous cases.
For further information on this topic please contact Luis de San Simon at San Simón & Duch by telephone (+34 913 579 298) or email (firstname.lastname@example.org). The San Simón & Duch website can be accessed at www.lsansimon.com.
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Luis de San Simón