This was an appeal against a decision of the Lisbon Maritime Court that it lacked international jurisdiction to hear a cargo damage claim against the respondent carrier, CMA CMG SA, and its insurer, because of an exclusive jurisdiction clause in favour of the Commercial Court of Marseille in the relevant bill of lading, which was transferred to the appellant consignee, Transitos de Extremadura SA. The appellant argued that the jurisdiction clause in the bill of lading did not bind it because it had not signed it. The appellant invoked art 21 of the Hamburg Rules, and arts 30 and 66 of the Rotterdam Rules, to argue that only jurisdiction agreements concluded after litigation were binding on the consignee. The appellant further submitted that, as a third party to the exclusive jurisdiction clause inserted in the bill of lading, the clause could only be enforceable against it if it took over the rights and obligations of the shipper, which it did not.

Held: Appeal dismissed.

The legal positions of the three parties involved in this type of triangular maritime transport contract were clearly set out in 79/12.2TNLSB.L1-2 (CMI615). These include the responsibility of the carrier, through the description and individualisation of the goods subject to transport, for damages resulting from omissions or inaccuracies in the elements necessary for the description of the goods and their defects not declared in packaging, in terms of art 4 of DL 352/86 and art 3.5 of the Hague Rules. Receipt of the goods is subject of the transport contract (art 3.3 of the Hague Rules). Presentation of a reservation on the bill of lading regarding the condition of the goods received is subject to art 376 of the Commercial Code and art 3.6 of the Hague Rules. Provision of the movement of goods covered by the transport contract from one place to another, unharmed, at the agreed place and time, is subject to arts 383-385 of the Commercial Code and art 4.1 of the Hague Rules, since it is the carrier’s obligation to receive the goods and deliver them to the consignee. The carrier’s liability for loss and damage to goods and delays in fulfilling the transport contract is subject to arts 377, 383 and 384 of the Commercial Code, and arts 3 and 5 of the Hague Rules.

The rules on international jurisdiction provided for in Regulation (EU) No 1215/2012 of the Parliament and of the Council, of 12 December 2012, on the recognition and enforcement of decisions in civil and commercial matters, commonly known as the Brussels Regulation I bis, prevail over the stipulations contained in the Portuguese Code of Civil Procedure that govern the same matter.

In the context of international maritime transport of goods, a jurisdiction clause inserted on the face of a bill of lading must be considered valid, as long as it is concluded that it has obtained the acceptance of the consignor, the carrier, and the consignee.

Adherence to such a clause by a forwarding company that compensated the consignee as a result of damage to the cargo, and to which it transmitted the bill of lading, may be characterised as a subrogation agreement signed between it and the consignee of the transported goods.