This was a claim brought by the plaintiff for EUR 6,560.82, representing damage suffered by its insured, Gasan Zammit Motors Ltd, to three vehicles which were transported from Italy to Malta on the Grande Gana under a bill of lading issued by the defendants. The plaintiff had compensated its insured for the damage to the vehicles and was subrogated into its rights.

The defendant responded, arguing that it acted as the agent of its principal, the shipping company Grimaldi Euromed SpA, and not Grimaldi Euromed SpA di Navigazione, as indicated by the plaintiff in its claim. The defendant contended that the Court lacked jurisdiction, and that the claim should have been filed in Naples according to the exclusive jurisdiction agreement in cl 2 of the bill of lading The plaintiff's claim was prescribed in terms of art 3.6 of the Schedule to the Carriage of Goods by Sea Act (Ch 140 of the Laws of Malta), which provides for a limitation term of one year. Alternatively, the plaintiff's claim was prescribed under cl 17(2) of the bill of lading as well as the Hague-Visby Rules which form part of Italian law, which was listed as the applicable law in the same bill of lading. The plaintiff's claim was also unfounded on the merits. In the alternative, if the plaintiff's claim were proven, the defendant's liability was limited in accordance with the terms and conditions of the bill of lading and in accordance with the Hague-Visby Rules.

Held: This Court has jurisdiction to hear the case and order its prosecution.

As mentioned in the judgment handed down by the Court of Appeal in Said NOE v Sullivan NOE, 3 October 2013:

It is in both logical and legally proper that the first thing to be determined by the Court, when so arising, as in the present instance, is the exception of lack of jurisdiction. This is all too obvious, in that if jurisdiction is lost the Court will not be able to rely on the merits of the case or any of the other exceptions raised.

[S]uch an exception needs to be raised in limine litis.

There is no doubt that in this case the plaintiff and the defendant are registered in Malta. Apart from the jurisdiction clause in the bill of lading, it is indisputable that this Court has jurisdiction over this case, in terms of art 742 of Ch 12 of the Laws of Malta.

As the Court of First Instance observed in Arrigo NOE v Cilia NOE (PA (JRM) - 11 December 2003):

For some time now, our Courts have recognised jurisdiction clauses, all the more so under the basis of the principle of the contractual freedom of the parties and pacta sunt servanda, that is to say that if a party has entered into an agreement that a matter is to be brought before a particular court or tribunal, that link may not be ignored or set aside except by mutual agreement.

The defendant based its plea of lack of jurisdiction on cl 2 of the bill of lading which states that:

Any and all claims and/or disputes arising under the contract of carriage evidenced by this Bill of Lading or in connection there with shall be brought before and determined by the Courts of Naples and in accordance with the Law of Italy unless otherwise provided herein. The carrier however reserves the right to take legal action against the Merchant and the holder as well as at any other competent court. (Emphasis added)

In deciding whether to uphold exclusive jurisdiction clauses, the Maltese Courts have established a line of guiding principles which are compatible with the principles set out in the English case of The Eleftheria. But each case has its own particular facts and the final discretion is always that of the Court. It is therefore up to the plaintiff to convince the Court that it should override the jurisdiction clause that it agreed to.

In this case, the vehicles were unloaded in Malta, the damages were identified in Malta, and those who will testify about the damages are people who mainly reside in Malta. According to the bill of lading the carrier's obligation was to deliver the vehicles to Malta. It is said that this jurisdiction clause was included in the bill of lading which was issued only after the goods have already been loaded on the ship, and therefore it is certain that the plaintiff did not have the opportunity to negotiate this clause. This clause is written in very fine print on the back of the bill. Even if the clause was inserted by any agreement between the parties, in fact it is certain that the plaintiff had no involvement. In addition, there is no doubt that the execution of this judgment should take place here in Malta. Therefore, for these multiple reasons, the Court is of the opinion that it has jurisdiction. The criteria which guide our Courts are those of practicality, convenience and expediency as far as the natural forum is concerned. In order to establish a failure in the delivery, the natural forum would have been the place of unloading of the goods.