OPINION OF ADVOCATE GENERAL
TANCHEV
delivered on 10 April 2018(1)
Case C‑88/17
Zurich Insurance plc
Metso Minerals Oy
v
Abnormal Load Services (International) Limited
(Request for a preliminary ruling from the Korkein oikeus (Supreme Court, Finland))
(Preliminary ruling — Cooperation in civil and commercial matters — ‘Brussels I Regulation’ — Regulation (EC) No 44/2001 — Jurisdiction in matters relating to contracts — Damages — Determination of the place of performance of the obligation — Place where the services were provided or should have been provided — Contract for the carriage of goods from one Member State to another entailing several stages and more than one mode of transport (multimodal transport))
1. The present case concerns international jurisdiction in respect of a claim for contractual damages under the second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 (‘the Brussels I Regulation’), (2) in a context entailing the multimodal transport of goods from one Member State to another.
2. Pursuant to an agreement entered into with a Finnish undertaking, a British haulier undertook to carry goods from Finland to the United Kingdom. After the goods concerned were lost while being transported in the United Kingdom, the Finnish undertaking and the insurer of the goods sued for damages before a Finnish court.
3. This dispute has reached the Korkein oikeus (Supreme Court, Finland), which seeks clarification as to whether the Finnish courts have international jurisdiction under Article 5(1)(b) of the Brussels I Regulation.
4. In its judgments in Rehder (3) and flightright and Others, (4)the Court held, in the context of passenger transport by air, that jurisdiction in respect of contractual damages may lie at both the place of boarding and the place of final destination. In the absence of any precedent in the Court’s case‑law directly addressing the issue of jurisdiction with respect to breach of a contract for the multimodal carriage of goods between Member States, the question to be answered by the Court in the case at hand is whether the rule developed in the context of passenger travel by air is applicable to the present situation.
5. I have come to the conclusion that the Finnish courts are able to claim jurisdiction over the dispute arising in the main proceedings pursuant to Article 5(1)(b) of the Brussels I Regulation, because the place from which goods are dispatched under a contract for transport services is a place where a service is provided in connection with a contract for the carriage of goods.
I. Legal framework
6. Article 5 of the Brussels I Regulation reads as follows:
‘A person domiciled in a Member State may, in another Member State, be sued:
1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
– …
– in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,
…’
II. The facts in the main proceedings and the question referred for a preliminary ruling
7. Abnormal Load Services (International) Ltd (‘ALS’), the defendant in the main proceedings, is a British haulier with its seat in the United Kingdom. (5)
8. In July 2008, ALS concluded a contract for the carriage of goods with Metso Minerals Oy (‘Metso’), a Finnish manufacturer of equipment for the mining and construction industries. A cylindroconical crusher was to be transported from Pori in Finland to Sheffield in the United Kingdom. The crusher was insured by Zurich Insurance plc (‘Zurich’). Both Metso and Zurich are the plaintiffs in the main proceedings.
9. ALS, with the help of subcontractors, transported the crusher as follows. It was first transported from Pori to Rauma in Finland by a lorry with a low loader. At Rauma, it was unloaded from the lorry and driven on to a ship under its own power. After transport by sea to the United Kingdom, the crusher was again driven under its own power off the ship (6) in the port of Hull and loaded onto another lorry. As Metso’s consignee did not have sufficient or adequate storage capacity, it asked a sub-contractor of ALS to drive the crusher to its own warehouse and keep it there temporarily for a couple of days. However, the crusher was stored there for a longer period, (7) and disappeared before it could be delivered to the consignee in Sheffield.
10. Zurich compensated Metso for the value of the crusher, less the excess.
11. On 30 September 2009, Zurich and Metso claimed before the Satakunnan käräjäoikeus (District Court, Satakunta, Finland) that ALS should be ordered to pay them damages in an amount equivalent to the value of the crusher.
12. In its judgment of 22 March 2013, the Satakunnan käräjäoikeus (District Court, Satakunta) ordered ALS to pay the sums claimed in the action, having concluded that it had jurisdiction to hear the case because it concerned carriage of goods by road, and its jurisdiction was based on Finnish rules implementing Article 31 of the Convention on the Contract for the International Carriage of Goods by Road (‘the CMR’). (8)
13. On appeal, brought by ALS, the Vaasan Hovioikeus (Court of Appeal, Vaasa, Finland) held that the case involved combined transport, that the parties were not to be regarded as having agreed on the court with jurisdiction under the CMR, that the latter was inapplicable and that the Vaasan Hovioikeus (Court of Appeal, Vaasa) did not have jurisdiction under Article 5(1) of the Brussels I Regulation either. It therefore dismissed the action as inadmissible in its judgment of 30 March 2015.
14. On appeal to the Korkein oikeus (Supreme Court), Zurich and Metso argued that the decision of the Vaasan Hovioikeus (Court of Appeal, Vaasa) should be set aside and ALS ordered to pay damages, or that the case should be remitted to the Vaasan Hovioikeus (Court of Appeal, Vaasa) to rule on the merits.
15. It is in that context that the Korkein oikeus (Supreme Court) decided to stay the main proceedings and refer the following question to the Court for a preliminary ruling:
‘How are the place or places where the service is provided to be determined in accordance with the second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 in a case involving a contract for the carriage of goods between Member States in which the goods are conveyed in several stages and by different means of transport?’
16. Written observations have been submitted to the Court by the defendant as well as the Finnish, Portuguese and Swiss Governments and the European Commission. No hearing was requested and none was held.
III. Summary of the observations submitted
17. I will approach resolving the question at issue by first summarising the principal observations submitted to the Court.
18. ALS contests the international jurisdiction of the Finnish courts, whereas the Finnish, Portuguese and Swiss Governments as well as the Commission take the view that Finnish courts have international jurisdiction.
19. ALS argues that only the place of unloading may be deemed to be the place of performance, claiming that the place of performance can only be one single place and that the place of final destination is of considerably greater importance than the place of dispatch. The latter, it contends, is hardly more important than the various places in which the goods are reloaded. Unlike air passengers, the parties to a contract for carriage of goods are not interested in the modes of transport employed in the course of the journey, their only concern being that the goods reach their final destination. Moreover, ALS suggests that the situation is similar to that of a sales agent operating in different Member States, in connection with which the Court has stated in Wood Floor Solutions Andreas Domberger that jurisdiction attaches to the place where the agent is domiciled. (9) ALS also refers to the Court’s ruling in Réunion européenne and Others, in which, in a case relating to combined sea and road transport, jurisdiction for tort was said to lie with the courts of the place to which the goods were to be shipped. (10) This, according to ALS, is consistent with the determination of the applicable law in respect of contracts for the carriage of goods under the Rome I Regulation, (11) which gives a degree of preference to the place of delivery and is to be interpreted taking into account the Brussels I Regulation.
20. The Finnish and the Portuguese Governments both rely on the Court’s case-law to the effect that the place where the goods were taken over by the carrier and the place designated for delivery of the goods are equally closely linked to contractual performance in the context of a carriage of goods contract. The Finnish Government relies primarily on the Court’s judgment in Wood Floor SolutionsAndreas Domberger, whereas the Portuguese Government cites Rehder, Nickel & Goeldner Spedition(12) and Color Drack (13) and relies on the concept of the ‘principal place of provision of the services’.
21. The Commission, referring to the Court’s judgments in Rehder, Wood Floor Solutions Andreas Domberger and Color Drack, acknowledges that, in any event, the place of arrival is a place of performance, as it is the final place in the chain of transportation. The Commission further argues, however, that, bearing in mind the requirements of proximity, foreseeability and legal certainty, it would be appropriate to recognise in addition the place of dispatch as a place of performance. According to the Commission, the situation under consideration would then be comparable to that in Rehder. Therefore, the Commission suggests that in the case at hand the plaintiff is free to choose between the place of dispatch under the carriage of goods contract and the place of delivery designated in the contract.
22. The Swiss Government states that, in interpreting a rule of jurisdiction, the purpose of the rule has to be taken into account. Among other arguments, the Swiss Government contends that the aims underlying the determination of contractual jurisdiction under Article 5(1)(b) of the Brussels I Regulation are proximity and foreseeability. The Swiss Government takes the view that both the place of dispatch and the place of delivery are to be regarded as places of performance. If the goods were, for example, damaged or lost at the place of dispatch, it would not seem appropriate to restrict jurisdiction to the courts of the country of destination, given the difficulties that would be entailed in gathering relevant evidence there. The Swiss Government adds that the places in which the goods are reloaded in the course of the journey are, however, not to be regarded as places of performance as, first, they cannot be foreseen by both contracting parties because the choice as to such a place is normally left to the haulier alone and, secondly, the number of available fora should be restricted.
IV. Analysis
23. As a preliminary point, it should be noted that the main proceedings before the referring Finnish court concern a dispute over whether, in the context of international multimodal carriage of goods, the courts in the Member State in which the goods are dispatched have international jurisdiction. The order for reference is worded more broadly to encompass potentially the jurisdiction of the Member State of destination as well as that of the Member States in which the goods in question are in transit. For the resolution of the question as formulated, however, it is not necessary to refer to those issues in providing an answer to the referring court. Nevertheless, under the above-mentioned aspect of limitation of the number of available fora, they have an indirect relevance so that I will discuss them passim in that context.
A. Introduction
24. The Court has dealt with international jurisdiction in the context of international carriage of goods in several cases. Yet none of these concern special jurisdiction in respect of a contract for the carriage of goods under Article 5(1)(b) of the Brussels I Regulation, which is the issue arising in the present reference for a preliminary ruling.
25. As far as transport of goods by land is concerned, these rulings deal mainly with the CMR and the scope of that convention. However, the Court has held that it is for the national courts to decide whether a dispute falls within the scope of the CMR, (14) and, in the present case, the Vaasan Hovioikeus (Court of Appeal, Vaasa) held that the CMR was not applicable ratione materiae because the case entails combined transport.
26. For this reason, the Korkein oikeus (Supreme Court) has formulated the question referred in terms of the interpretation of Article 5(1)(b) of the Brussels I Regulation, and does so on the basis that the CMR is inapplicable. (15)
27. Article 5(1)(b) of the Brussels I Regulation provides for ‘special jurisdiction’, as an alternative to ‘general jurisdiction’. For the defendant of the main proceedings, under Article 2(1) of the Brussels I Regulation, read in connection with Article 60(1) of that regulation, general jurisdiction lies with the courts in the United Kingdom, where ALS has its seat. The plaintiffs in the main proceedings can therefore choose to sue in the Finnish courts only if Finland meets the conditions governing special jurisdiction under Article 5(1)(b) of the Brussels I Regulation, that is if Finland was ‘the place of performance of the obligation’ within the meaning of that article.
28. The question of international jurisdiction arises in the main proceedings because the case has connections not only with Finland but also with other countries: Finland is the country in which the goods were dispatched and the consignor has its seat, whereas the destination of the goods being carried and the location of the haulier’s seat is in the United Kingdom, where, moreover, the goods were ultimately lost. Finally, in order to convey the crusher from Finland to the United Kingdom, it had to be transported through the waters of other Member States or waters under the sovereignty of no State. In ordinary language, all these territories and waters are places where the contract was performed.
29. Since, for the purpose of determining international jurisdiction in respect of a services contract, Article 5(1)(b) of the Brussels I Regulation provides that the place of performance of the obligation under the contract is ‘the place … where, under the contract, the services were provided or should have been provided’, the question arises whether all the countries in which part of the obligation was performed have jurisdiction, or only one or some of them.
30. According to their wording, both sections (a) and (b) of Article 5(1) of the Brussels I Regulation refer to ‘the place of performance’ and, in the case of section (b), additionally to ‘the place in a Member State’. (16) In consideration of the singular form employed, it seems, that only one single place can be regarded as having special jurisdiction in respect of contractual matters. However, this conclusion is not borne out by the case-law.
31. The Court has ruled that, if it is not possible to determine one single principal place of performance, each of the places of performance has a sufficiently close link of proximity to the material elements of the dispute and, accordingly, a significant link as regards jurisdiction. In a dispute concerning the sale of goods, the Court has held that, in such a case, the plaintiff may sue the defendant at one of the places of performance — at his choice — on the basis of the first indent of Article 5(1)(b) of the Brussels I Regulation. (17)
32. This is consistent with the case-law on jurisdiction in the field of tort, in which the Court has also held that more than one place may have to be considered when the place where the damage occurred is not the same as the place in which the event giving rise to liability for the damage occurred. (18)
33. In Réunion européenne and Others, (19)the Court, dealing with a transport of goods by sea and then by land (20) considered the matter to be one relating to tort, delict or quasi-delict and therefore did not rule on jurisdiction for matters relating to a contract.
34. As for air transport of passengers, the Court has delivered two judgments clarifying the conditions for conferring jurisdiction in contractual matters under the second indent of Article 5(1)(b) of the Brussels I Regulation, which I will now consider in detail.
B. Case-law concerning air transport of passengers
1. Rehder
35. In Rehder, (21) the Court was asked to rule on international jurisdiction in respect of claims arising under Regulation (EC) No 261/2004 of the European Parliament and of the Council on the rights of flight passengers. (22) The plaintiff in that case sought damages in a German court in a connection with a cancelled flight from Munich (Germany) to Vilnius (Lithuania), although the seat of the airline concerned was in Riga (Latvia). The Court held that the courts in the Member States of both the place of departure and the place of arrival of the aircraft have jurisdiction. The ultimate choice between these two options will be for the plaintiff.
36. The Court concluded that, given the nature of the relevant services provided to passengers en route, both of these places presented a sufficient link of proximity to the material elements of the dispute. At the same time, the Court held that the places where the aircraft may stop over lacked a ‘sufficient link to the essential nature of the services resulting from [the relevant] contract’. (23)
37. When considering the relevance of the places of departure and arrival of a flight, the Court distinguished this situation from one of a sales contract with ‘deliveries of goods to different locations, which are distinct and quantifiable operations for the purpose of determining the principal delivery on the basis of economic criteria’. The Court pointed out that ‘air transport consists, by its very nature, of services provided in an indivisible and identical manner from the place of departure to that of arrival of the aircraft, with the result that a separate part of the service which is the principal service, which is to be provided in a specific place, cannot be distinguished in such cases on the basis of an economic criterion’. (24)
38. Furthermore, the Court stated that its conclusion was consistent with the requirements of proximity, foreseeability and legal certainty. The Court noted in that respect that the choice, limited to two fora, allowed both parties to identify easily the courts before which the claim could be brought and also made pertaining risk assessment possible.
2. flightright and Others
39. The above principles were affirmed in flightright and Others, (25) in which the Court had to deal with three joined cases concerning segmented flights, where, moreover, each leg of the flight was operated by a different air carrier.
40. In the first of these cases, flightright GmbH was the assignee of the claims made by two passengers in relation to delayed flights and brought an action in the German courts against Air Nostrum. The assignors had booked their flights with Air Berlin, under a single booking reference, from Ibiza (Spain) to Düsseldorf (Germany) via Palma de Mallorca (Spain). The first leg, which was operated by Air Nostrum, was delayed and the passengers missed their flight from Palma de Mallorca to Düsseldorf. The question was whether the German court seized by flightright GmbH had jurisdiction.
41. The Court held that the second indent of Article 5(1)(b) of the Brussels I Regulation (26) must be interpreted as meaning that, in the case of a connecting flight, the ‘place of performance’ of that flight, for the purposes of that provision, was the place of arrival of the second leg. The Court reached this conclusion in a context in which the passengers were carried on two connecting flights both of which were operated by different air carriers and the action for compensation for the long delay of the connecting flight under Regulation No 261/2004 was based on an irregularity which took place on the first of those flights, operated by the air carrier with which the passengers concerned did not have a contractual relationship (Air Nostrum). (27)
42. The Court noted that although the concept of ‘place of performance’ set out in Rehder refers to a direct flight operated by the contracting partner of the passenger concerned, it also applies, mutatis mutandis, with respect to situations such as those at issue in flightright and Others, in which, first, only the connecting flight was concerned, and, secondly, the operating air carrier on the flight at issue did not conclude a contract directly with the passengers concerned. (28)
43. Given that the place of arrival of the second leg had a sufficiently close link with the material elements of the dispute and, therefore, ensured the close connection required by the rules of special jurisdiction set out in Article 5(1) of the Brussels I Regulation between the contract for carriage by air and the court with jurisdiction, it satisfied the objective of proximity. (29) That solution was also consistent with the principle of foreseeability underlying those rules in so far as it allowed both the applicant and the defendant to identify the court for the place of arrival of the second flight, as set out in that contract for carriage by air, as the court before which an action may be brought. (30)
3. Summary
44. To summarise, as far as delayed flights and the damages to be paid for breach of this type of contract for carriage are concerned, the Court considers both the place of departure and the place of the final destination to be equally significant under the contract, thereby establishing a sufficient territorial link between these places and any proceedings arising from the contractual situation.
45. Therefore, the Court characterises both of these places as ‘places of performance’ under the second indent of Article 5(1)(b) of the Brussels I Regulation, establishing a sufficiently close link with the material elements of a dispute concerning contractual obligations, such as the obligation to pay damages.
46. The Court justifies this characterisation by reference to other principles enshrined in well-established case-law on special jurisdiction, namely the principles of foreseeability and risk assessment.
47. In addition to these two main places of performance, the Court has identified another place that might be considered being also of significance for the performance of a contract for carriage. This is the place where the first leg of a journey consisting of two flights ends. On the basis of the Court’s ruling in flightright and Others, this place does not meet the objective of proximity, however.
C. Applicability to multimodal carriage of goods
48. In my opinion, these considerations are transposable to situations entailing the multimodal carriage of goods, as in the case at hand.
49. The present situation differs from that in the airline cases as regards the object transported and the means of transport. I will address these differences in turn and explain why, nevertheless, Rehder and flightright and Others are, in my view, applicable.
1. Goods versus passengers
50. The fact that, in the case at hand, it is goods that were transported does not significantly change the situation with respect to the place of departure. This location is still relevant to the performance of the contract and has a sufficiently close degree of proximity, also when compared to the places crossed when the goods were being transported from Finland to the United Kingdom by lorry and ship.
51. As pointed out by the Court in Rehder, when a passenger boards an airplane, the relevant services in respect of a contract for carriage of passengers by air are ‘the checking-in and boarding of passengers, the on-board reception of those passengers at the place of take-off agreed in the transport contract in question, the departure of the aircraft at the scheduled time, the transport of the passengers and their luggage from the place of departure to the place of arrival, and the care of passengers during the flight’. These considerations preclude places where the aircraft may stop over from being places in which a court may have jurisdiction due to the lack of a ‘sufficient link to the essential nature of the services resulting from [the relevant] contract’. (31)
52. As goods need to be dispatched by a person, be it the consignor or one of its representatives, the situation at the place of departure is similarly decisive if the goods are to be delivered successfully.
53. That is why the rulings concerning air transport of persons are transposable to the present case. In the case of the carriage of goods, the consignor has an interest in the goods arriving at the place of destination in time, without getting lost or damaged. For this, the consignor needs to take precautions at the place of departure, namely handing the goods over at the right time and place and packing, wrapping and securing them appropriately, so that no damage will occur on the journey. Moreover, the other contracting party, the haulier, has to perform an important part of the service agreed on at the place of dispatch, namely receiving and adequately storing and protecting the goods against damage.
54. What is more, although the CMR is not relevant to the main proceedings, it is noteworthy that, as the Swiss Government and the Commission have argued, it also relies on there being a sufficiently close connection between the carriage of the goods and a State which may have jurisdiction. Under Article 31(1)(b) of the CMR, both the place of departure and the place of arrival are independent connecting factors (32) which may confer international jurisdiction. A comparable rule on jurisdiction is to be found in Article 21(1)(c) of the United Nations Convention on the Carriage of Goods by Sea.(33)
55. The Rome I Regulation invoked by ALS is not directly relevant to the question referred because it concerns choice of law. However, the rules of private international law are also predicated on there being a close connection. For the purpose of determining the law applicable to contracts for the carriage of goods, Article 5(1) of the Rome I Regulation uses a combination of the habitual residence of the carrier, the ‘place of receipt’, the ‘place of delivery’ and the habitual residence of the consignor. This supports the view that these places are all relevant when determining whether there is a close connection in cases involving the carriage of goods, one such place being the place of dispatch (‘place of receipt’).
2. Multimodal road/sea transport versus air transport
56. The Court’s ruling in flightright and Others addressed a feature that is typical of multimodal transport, namely the fact that the goods are transported in a number of separate stages.
57. Those separate stages were present in the flightright case, in which the Court established that the nature of such a journey does not alter the vital position of the places of departure and destination, even though in flightright and Others, as in the case at hand, the air carrier and the haulier used subcontractors.
58. As regards both multimodal carriage of goods and segmented flights, the two main places where services are provided are interlinked by the boarding pass, in the case of air transport, and the contract between the dispatcher and the haulier, in the case of multimodal transport. The purpose underlying such a contract, namely to move an item from one defined location to another such location, that is to transport it from A to B, makes these two places two ends of one spectrum, even though there may be distance and time between them. The purpose of the contract is simply to cover this distance. Both these places — departure and destination — are fundamental to the contract for the carriage of goods and only together form its essential and characteristic elements.
59. In the present situation, where the means used to transport the goods change as the journey progresses, particularly in harbours, the fact that the goods are carried in a number of different stages is also an inevitable feature of such transport. In my view, however, even the fact that it was necessary to unload heavy and bulky goods such as the crusher in question and transfer it across land under its own power, with the dangers in terms of loss or damage inherent in a procedure of that kind (including the possibility of theft), does not alter the situation in such a way as to give the places of reloading or transhipping an importance equal to that of the place of dispatch. Therefore, recognising the latter place, along with the place of destination, as one of two ‘places of performance’ does not enhance the number of available fora in a way as to give reason for concerns of forum shopping.
60. Moreover, it is common practice not to mention the places of reloading or reshipping in contracts of the kind in issue in the main proceedings. (34) The element of foreseeability which the Court emphasised in Rehder and flightright and Others and the imperative of limiting forum shopping means that places of reloading fall outside the concept of ‘the place of performance’ under the second indent of Article 5(1)(b) of the Brussels I Regulation. According to the Court’s case-law, the place of performance must be inferred, as far as possible, from the provisions of the contract itself. (35)
61. The prominent role of the contract in determining jurisdiction also means that less weight is to be attributed to the fact that the crusher was lost in the United Kingdom and not in Finland. At the time the parties concluded the contract, it was not foreseeable where a problem with the performance of the contract might occur. Thus, although ease of taking evidence is also an objective of Article 5(1)(b) of the Brussels I Regulation, it is outranked by foreseeability, which is one of the pillars (36) of its common jurisdictional rules.
3. Interim Conclusion
62. I therefore take the view that the differences between the situations that are compared here — the carriage of passengers by air on the one hand and multimodal carriage of goods on the other hand — are not so significant as to warrant the application in the main proceedings of an approach that differs from that applied in Rehder and flightright and Others. There the Court found jurisdiction at the ‘main places of provision of services’ (37) because these provide a sufficiently close link with the material elements of this dispute. (38) For situations of road and ship carriage, this close connection is confirmed by other legal regimes such as the CMR and the Hamburg Rules.
63. The place of dispatch and the place of destination are thus both ‘main places of performance’ under the second indent of Article 5(1)(b) of the Brussels I Regulation, whereas the loading places in general are not.
V. Conclusion
64. In the light of the foregoing considerations, I suggest that the question referred by the Korkein oikeus (Supreme Court, Finland) should be answered as follows:
The place or places where the service is provided, for the purpose of the second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in a case involving a contract for the carriage of goods between Member States in which the goods are conveyed in several stages and by different means of transport include the place of dispatch.