Submission clauses in maritime transport of goods

The section 9 of the High Court of Valencia has had the opportunity of examining the validity of the clauses inserted in the Maritime Transport of Goods contracts since the Maritime Navigation Law came into force. (Law 14/2014, dated July 24th). We here refer to decrees n. 1243/2016 and n. 1244/2016, both from July 27th 2016, and to the decree n. 1620/2016 dated November 8th, 2016, of the afore mentioned Court.

In all the three occasions the presiding judge, Mrs. Purificación Martorell Zulueta, stated that “not always and not in any case, the inclusion of extension clauses of jurisdiction to Courts of another State may result in derogation of the jurisdiction of Spanish Courts in the dispute “. It would be necessary to conduct a scrutiny of the efficiency of a specific clause of submission to jurisdiction in the field of Maritime Transport on “a case-by-case basis”. Having done these precisions, the judge got to analyze the alleged facts at issue to provide different solutions in each case.

The High Court rejected the validity of the agreement of submission to the jurisdiction of an EU country in the Decree n. 1243/2016. The Court argued that the claimant had acknowledged being the contracting party in the Maritime Transport contract and therefore it could no longer be considered as a third party. Different issue was to assess, if despite this, the mentioned party could be or not subjected to the clause of jurisdiction. In this analysis, the High Court took into account that the bill of lading was not signed in the box assigned to jurisdiction clause purpose, so there was no an express acceptance of it. On the other hand, the acceptance by the contracting party could not be assumed either as there was no proof in the Decree that the claimant was usually active in the sector and was, or should be, familiar with the use that rules in the field of International Maritime Transport of Goods in relation to the submission clause.

In the Decree n. 1244/2016, the High Court considered that if the transport contract was evidenced by the bill of lading it was also possible to apply the European regulation in terms of court jurisdiction, given the fact that both contractual parties were European and the clause was submitted to the jurisdiction of a European country. On the other hand, the Court stressed the broad experience of both, the shipper and its freight forwarder, in the sector and the existence of it between the shipping company and these two, as evinced previous shipments carried out. Therefore, the Court concluded that the submission agreement was applicable in this case.

Finally, in the Decree n. 1620/2016, the High Court confirmed the validity of the submission clause in an allegation where the claimant was a party to the transport contract as “Shipper” and it was bound to due to the full content of the contract, even if the relation with the shipping company was by means of a freight forwarder.

The relevant fact in the case of these three decisions is that in all of them the High Court of Valencia analysis the relationship between article 468 of the Spanish Maritime Navigation Law and article 25 of the Regulation 1215/2012 (“Brussels I“) giving prevalence to the provisions of the European regulation over the national legislation in those allegations where jurisdiction clauses refere to the EU courts. Furthermore affirming the need of adjusting the aforementioned clauses, in terms of agreement, to the provisions of such Regulation.