5 Which court is competent when the cargo owner wishes to start legal proceedings?
We have now considered some of the substantial questions related to sub-carriage. This topic requires some additional remarks on the procedural issues.
When the cargo owner sues the contracting carrier, the sub-carrier and the servant, we may have a number of forum questions. The main principles for this are found in the Civil Procedure Act (CPA) of 2005 Chapter 4, with its rules on venue. The cargo owner may instigate proceedings against a physical person where that person is domiciled, and if the defendant is a company/a corporation, at the place where the main office is situated - according to the registration in the Registry of Businesses (CPA Section 4-4). However, the parties have freedom to decide which court should be competent (CPA Section 4-6).
The contracting carrier’s contract with the cargo owner may have derogatory clauses, but in the interests of the cargo owner, the freedom has been restricted, see MC Section 310. For our purpose, it is sufficient to quote the first part of paragraph one:
“Anyagreement in advance which limits the right of the plaintiff to have a legal dispute relating to the carriage of general cargo subject to the present Chapter settled by legal proceedings, is invalid in so far as it limits the right of the plaintiff at his own discretion to bring an action before the Court at the place where [it is reasonably convenient for the cargo owner to start proceedings].”
An example could be: a jurisdiction clause that refers to the place of delivery as venue is valid, cf. paragraph one letter d, provided, however, that the cargo owner also has the options given in letters a, b and c.
The sub-carrier’s procedural position is, of course, not identical to the contracting carrier’s. When the contracting carrier has his main office in A and the sub-carrier’s is in B, the latter is not obliged to accept a suit in A. Liability in accordance with the rules applicable to the contractual carrier, cf. Section 286, does not include the procedural rules. The rules in Section 310 are also not applicable.
The conclusion is that a suit against the sub-carrier must be brought before a court that has jurisdiction according to the general rules in CPA Chapter 4.
The procedural position of the servant is, of course, not the same as that of the contractual carrier, and if he is a servant of the sub-contractor he is not bound by the procedural rules for the sub-carrier. The servants’ position when sued by the cargo owner depends upon the rules in CPA Section 4-4.
To sum up: if X - who is not the contracting carrier - has caused cargo damage and is sued by the cargo owner, he is not bound by the same venue rules as the contracting carrier. Whether he is characterized as sub-carrier or servant is, in this respect, immaterial. He can insist that the rules in CPA Chapter 4 are decisive: the suit has to be instigated either where he is domiciled or where his main office is situated.