A recent decision by the Supreme Court of the Canton of Zurich has finally shed light on an unsolved issue relating to the application of Article 31 of the Convention on the Contract for the International Carriage of Goods by Road (CMR) under Swiss law.

Legal background

According to Article 31 of the CMR, there is, among other things, jurisdiction in the state in which the goods are loaded. This provision determines only the international jurisdiction and does not fix any local place of jurisdiction. Therefore, the specific place of jurisdiction must be determined by national law – namely, by the Lugano Convention in euro-international cases or by the Private International Law Act (PILA) in all other international cases.

Article 113 of the PILA provides that the place of jurisdiction is the "place of performance" of the contract. However, a dispute has arisen among scholars as to where the place of performance is for an international contract of carriage. One argument seems to be that the term "place of performance" of the contract must be construed in accordance with domestic law – namely, Article 74 of the Code of Obligations, and that in a contract of carriage, only the place of delivery and not the place of loading is the place of performance.(1) This would mean that in the case of international contracts of carriage, there would be no jurisdiction in Switzerland at the loading location if the place of delivery is abroad. This creates tensions with Article 31 of the CMR which provides for a jurisdiction in Switzerland.

Another argument is to construe Article 113 of the PILA autonomously. Those scholars point out that Article 113 of the PILA was revised in 2011 together with Article 5 of the Lugano Convention and that those two rules must be construed in the same way.(2) Under Article 5 of the Lugano Convention and Article 5 of the EU Brussels I Regulation, the European Court of Justice (ECJ) has unambiguously made it clear that any international contract of carriage has two places of performance:

  • the place of loading; and
  • the place of delivery.(3)

If the place of performance of the contract according to Article 113 of the PILA were to be understood in the same way as the place of performance of the contract according to Article 5 of the Lugano Convention, there would have to be a place of jurisdiction at the place of loading.

Decision

A recent decision by the Supreme Court of the Canton of Zurich has now shed light on this topic.(4)

In its 9 September 2020 decision, the court ruled that a claimant may bring claims which are based on an air passenger transport contract before the courts of the place of departure, which was Kloten in the present case. Since the defendant was a company domiciled in the Arab region, the rules of the PILA, specifically Article 113 therein, applied.

The court explicitly referred to the ECJ's case law and pointed out that even if that case law is not binding for a Swiss court, there was still no reason why the court should deviate from the ECJ's decisions, especially since it was the Swiss legislature's intention to align Article 113 of the PILA with Article 5 of the Lugano Convention and thus also with the EU Brussels I Regulation.

Comment

This decision is only a decision by the Supreme Court of the Canton of Zurich and not the Federal Supreme Court. However, the Supreme Court of the Canton of Zurich is a well reputed court and its case law has significance. This decision is a breakthrough and the Federal Supreme Court would likely not overturn it but rather come to the same conclusion.

In addition, the decision relates to an air passenger transport. However, the ECJ decisions referred to above declared it a general principle that any contract of carriage has two places of performance. Since the Supreme Court of the Canton of Zurich explicitly referred to the ECJ's decisions, it may be assumed that the Swiss decision's scope would also extend to all contracts of carriage. Therefore, it may well be that the problems surrounding Article 31 of the CMR under Swiss law are now resolved.

Endnotes

(1) BSK-IPRG, Amstutz/Wang/Gohari, Article 113 N 13; Kren Kostkiewicz, Schwei-zerisches, Internationales Privatrecht, 2nd edition, Bern 2018, N 2098 ss.

(2) Möcklin-Doss/Schnyder, Handkommentare zum schweizerischen Privatrecht, Internationales Privatrecht, 3rd edition, Zurich 2016, Article 113 N 10a and Bopp/Grolimund/Bachofner, Internationales Privat- und Zivilverfahrens-recht, 3rd edition, Zürich 2018, p 8.

(3) ECJ Decisions C-204/08 of 9 July 2009 and C-88/17 of 11 July 2018.

(4) Supreme Court of the Canton of Zurich, Decision RU200031-O/U of 9 September 2020.