This was an application to set aside service of proceedings brought by two sets of claimants in England on the ground that the English courts do not have jurisdiction under the Brussels Recast Regulation (the RR) to hear the claims.

The first defendant, Mr Loro Piana (Piana), is an Italian businessman and amateur yachtsman domiciled in Italy. Piana raced the sailing yacht My Song in regattas in the Caribbean and the Mediterranean. The yacht was owned by the second defendant, Credem Leasing SpA (Credem), and leased back to Piana. Piana wished to organise transport of the yacht from Antigua to Genoa. Peters & May Srl (PMS) was approached to arrange carriage. PMS sent a draft booking note and key facts document. Piana signed the booking note. The counterparty to that booking note was Peters & May Ltd (PML), the principal of PMS. On that booking note, PML was named as the Service Provider and Piana was named as the Merchant. The carriage was to be from Antigua to Genoa, on a vessel which was to be confirmed, within a delivery window of 1-20 April 2019. The yacht was named as the cargo, and the freight rate was USD 147,228.00.

The booking note contained the following exclusive jurisdiction clause (EJC): '3. Law and Jurisdiction. This Booking Note shall be governed by and construed in accordance with the laws of England and all disputes and claims arising out of or in connection with this Booking Note shall be referred to and determined exclusively by the English High Court'. In addition, the booking note incorporated by reference the Heavy Lift Rider Conditions, which, in case of inconsistency, were said to override the terms of the booking note; and the standard terms of the British Institute of Forwarding Agents (BIFA). The BIFA terms included an EJC which provided: 'JURISDICTION AND LAW. 28. These conditions and any act or contract to which they apply shall be governed by English law and any dispute arising out of any act or contract to which these Conditions apply shall be subject to the exclusive jurisdiction of the English Court.'

By an addendum to the booking note dated 18 March 2019, PML agreed to use reasonable endeavours to fix the Brattingsborg to carry the yacht. PML already had a contract of affreightment with Zeamarine Carrier GmbH (Zeamarine), and entered into an amendment to this contract on 20 March 2019 so that the yacht could be carried on board the Brattingsborg. PML in its turn procured the issue of a non-negotiable sea waybill by Zeamarine dated 10 May 2019 for the carriage of the yacht on board the Brattingsborg. The waybill named Piana as shipper and consignee and was stamped 'Express Release'. The waybill also included a jurisdiction agreement: '3 Law and Jurisdiction. Disputes arising under this Sea Waybill shall be determined by the courts and in accordance with the law at the place where the carrier has his principal place of business'. Zeamarine has its principal place of business in Germany. Weco is the bareboat charterer of the Brattingsborg. Weco time-chartered the vessel to RZ Carrier GmbH & Co KG (RZC) pursuant to a time charter. RZC in turn chartered the vessel to Zeamarine. The yacht was lost overboard during the carriage on about 26 May 2019.

Piana commenced proceedings in Italy against PML and PMS on 14 June 2019. The current English proceedings were commenced on 27 June 2019 by Weco. Weco claims negative declaratory relief against Piana, Credem, and PML. On 18 August 2019 PML commenced Pt 20 proceedings against Piana and Credem in England, also seeking negative declaratory relief. On 18 September 2019 PMS commenced proceedings in England against Piana and Credem, once again seeking negative declaratory relief. Piana then commenced proceedings against Zeamarine and Weco on 13 May 2020 in the courts of Genoa.

Held:

(1) There is a good arguable case that PML is entitled to rely on the EJC as against both Piana and Credem. The Milan proceedings against PML should therefore be stayed in favour of proceedings in England.

(2) There is a good arguable case that Weco is entitled to found jurisdiction against PML, Piana and Credem under art 8(1) of the RR. The English Court was first seised of these proceedings.

(3) There is a good arguable case that PMS is entitled to the benefit of the EJC (as against Piana) by reason of the principle of conditional benefit, on the basis that Piana, by (at least arguably) bringing proceedings on the booking note contract in Italy against PMS, became bound to comply with the terms of the EJC. Again, therefore, the Milan proceedings against PMS should be stayed in favour of the proceedings in England.

(4) As between PMS and Credem, there is no good arguable case that PMS may rely on the EJC against Credem, since it cannot rely on either the Himalaya clause or the conditional benefit argument. Whether it would be able to do so if proceedings were brought is a matter that is not determined.

In determining whether the EJC was invalidated by the consumer protection provisions of the RR, the Judge had to interpret whether the booking note was a 'contract of transport' and thus fell within the exception in art 17(3) of the RR. Piana argued that the Schlosser Report explains at [160] the reasoning behind the original introduction of this exception to the Brussels Convention: 'such contracts are subject under international agreements to special sets of rules with very considerable ramifications' and their inclusion would 'merely complicate the legal position'. Therefore, art 17(3) was motivated not by a lack of concern for consumers entering into contracts of transport, but by a concern to avoid disrupting existing international agreements, such as the CMR Convention and the Hague-Visby Rules. The booking note is not a 'contract of transport', having due regard to the natural meaning of the words. The booking note itself is a contract to arrange a contract of transport, namely, a freight forwarding agreement. PML is (and held itself out to be) a leading freight forwarding company that arranges the forwarding of yachts. The contract was a booking note, which ordinarily precedes a contract of carriage such as a bill of lading or waybill (as happened in this case). It provided for PML to 'arrange' the carriage of the yacht. Thus the booking note is not properly characterised as a 'contract of transport', but rather a contract to arrange carriage or a 'contract for carriage'. The natural meaning of this phrase is that the contract involves a carrier agreeing to carry goods or persons, not merely to arrange that transport as an intermediary. This reflects the purpose of the provision, which is to avoid conflict with international Conventions that govern contracts for the transport of people and goods (eg the CMR, the Hague-Visby Rules, the Athens Convention). These Conventions do not apply to contracts to arrange carriage and, specifically, the Hague-Visby Rules do not apply to the booking note because it was not a contract of carriage, it was not a bill of lading, and it did not contemplate that PML would issue a bill of lading (see arts 1 and 2). The contract did not even incorporate the Hague-Visby Rules.

PML submitted that the main purpose of the booking note was clearly transport. In this regard, PML made the following submissions. The booking note was the only contract that Piana entered into for the transport of the yacht. Whether PML was arranging that transport or carrying it out itself does not matter: it was still a contract whose main purpose was the transportation of the yacht. It was the purpose of the contract that matters and not what PML's precise role in it was. It does not matter whether PML was a carrier or a freight forwarder. There is nothing in art 17 of the RR that requires the other party to have any particular role. Throughout art 17 it is the purpose of the contract that is relevant and that is equally applicable to art 17(3). If the EU legislature had not intended that to be the case it would have said so. There was no suggestion in Pammer (C-585/08) that the concept of a 'contract of transport' only applies to contracts where a 'carrier' agrees to carry goods or persons, or to contracts that were either subject to international Conventions or raise concerns about disrupting them. There were, in any event, indications in the booking note that PML was the carrier of the goods. Thus, various clauses in the contract only make sense in the context of a contract of carriage. In this regard, PML made reference (in particular) to terms of the booking note which provided that payment was to be by way of freight; that PML was to be at liberty to carry the goods; that there were exemptions in relation to the loading and discharge of the goods; that there were rights to discharge in certain circumstances; and that the booking note contemplated that the contract that it evidenced might be subject to the US Carriage of Goods by Sea Act (the US COGSA).

The Judge held that in this case the contract was a contract of transport within the art 17(3) exclusion to the consumer section for the following reasons. On its face, the contract was clearly not limited to the arrangement of carriage. There was an express liberty to perform the carriage; and to subcontract the carriage. However, this liberty was contained in the BIFA terms, which were only incorporated by reference. The remuneration for the services rendered was freight, and not commission. PML chartered in a vessel to perform their obligations and paid a separate rate of freight to the shipowners. The booking note clearly contemplated that this might happen and that at least one of the statutes relating to international carriage would apply - ie the US COGSA. A large number of the provisions within the booking note contemplated that the service provider might well be providing the vessel: see, for example, cll 4 (period of responsibility), 5 (scope of voyage), 6 (substitution of vessel, transhipment and forwarding), 8 (loading, discharging and delivery), 9 (deck cargo), 12 (lien), 13 (delay) and 15 (both to blame collision clause). Overall, therefore, the purpose of this booking note was indeed the transport of the yacht. This makes it unnecessary to reach any concluded view as to whether a freight forwarding contract, to arrange carriage, would be a contract of transport. However, it is probable that a freight forwarding contract is a contract of transport. The jurisdiction clause is thus not invalidated by the consumer section of the RR.

This conclusion made it unnecessary for the Judge to decide whether Piana was a consumer in terms of the RR. However, because the point was fully argued, he set out his conclusions briefly, finding that Piana had not established his consumer status. Accordingly, the EJC was valid under the RR tests.