Andrew Tetley * and Antoine Guillemot †

Bill of lading—jurisdiction clauses—binding effect on shippers having instructed freight forwarders

CFTO (“the seller”) sold six containers of frozen tuna (“the cargo”) to Kerevitas (“the purchaser”). By contract of 3 June 2012, the seller instructed Le Roux (“the freight-forwarder”) to organise carriage of the cargo from Dakar in Senegal to Gemlik in Turkey. The freight-forwarder instructed Maersk Line (“the sea carrier”) to transport the cargo. On 29 June 2012, one of the containers containing the cargo collapsed on one of the six others during transhipment of the cargo from one vessel to another, causing serious damage to the cargo. The ensuing adversarial court supervised expertise, carried out at the request of the purchaser (“the expertise”), led to the expert concluding that proper maintenance of the cold chain could not be sufficiently proved. The expert accordingly recommended destruction of the cargo. On 28 August 2012, the seller agreed to grant the purchaser credit in the amount of the full price of the cargo, expecting to be reimbursed by Helvetia Assurances, its insurer (“the insurer”).

By writ of 27 September 2013, the seller and the insurer summonsed the sea carrier and the freight-forwarder before the Commercial Court of Quimper, in the jurisdiction of which the freight-forwarder was located, seeking damages for the lost cargo and the expertise costs. In response, the sea carrier argued that the Commercial Court of Quimper was deprived of jurisdiction by reason of the jurisdiction clause contained in the terms and conditions of the sea carrier granting jurisdiction to the London High Court of Justice. By judgment of 10 June 2016, the Commercial Court of Quimper found that it had jurisdiction to hear the case, held the sea carrier liable for damages for the cargo loss and expertise costs and held the claim against the freight-forwarder to be time-barred.

The sea carrier lodged an appeal against the judgment of the Commercial Court in order to challenge the jurisdiction of the Commercial Court on the basis of the jurisdiction clause contained in the terms and conditions of the sea carrier granting jurisdiction to the London High Court of Justice. The bill of lading provided as follows: “This contract is subject to the terms and conditions, including the applicable law and jurisdiction clauses, as well as the limitation of liability and declared value clauses, of