Spain: Foreign Jurisdiction Clauses

December 2001

(Sea Venture Volume 20)

The First Instance and Appeal Courts in Bilbao have recently considered the question of whether Spanish Courts are competent to hear a case involving damage to cargo carried from Spain to Mexico under a bill of lading containing a clause which had the effect of granting jurisdiction to the Courts in Hamburg.

The ocean carrier, who was the time charterer of the vessel, loaded a container containing a hydraulic press, at Bilbao for discharge at Tampico and final delivery inland. A combined transport bill of lading was issued by the charterers. During the transport by truck to its final destination, there was a traffic accident and the press was severely damaged. The Spanish cargo underwriters commenced legal action in Bilbao against the time charterers as carriers under the bill of lading.

"Forum non conveniens" was argued on behalf of the carrier, since clause 23 of the bill of lading provided for jurisdiction in the carrier’s principle place of business which was Hamburg.

The plaintiffs objected on the grounds that neither they nor the shippers had specifically accepted the jurisdiction clause and that this had been imposed unilaterally.

Spain has ratified the Brussels Convention 1968 on Jurisdiction and Enforcement of Judgements, as modified by the San Sebastian Convention of 26^th May 1989. Under these Conventions, such jurisdiction clauses are acceptable where a commercial relationship exists between the parties and the incorporation of such a clause is usual practice in the specific commercial field.

On this basis, the Court of First Instance accepted the clause because clauses of this nature are normally incorporated into bills of lading and this is well known in the maritime community. Furthermore, the shippers had brought their claim against the carrier under the relevant responsibility clauses on the reverse side of the bill of lading, so they could not argue that they had not specifically agreed to another clause (i.e. the jurisdiction clause) which also appeared on the reverse of the same bill of lading. The shippers were not entitled to "pick and choose" to suit their purposes.

The plaintiffs subsequently appealed, but the Appeal Court of Bilbao upheld the decision of the First Instance Court.

¹ (Allianz & Loire S.A. v H. Stinnes Linien Gmbh & Aseco – Bilbao Court Of Appeal)