New vehicles loaded in Belgium arrive damaged in Korea. The carrier is Korean, and the back of its bills of lading provides, in the twenty-fifth of twenty-seven clauses, that any action shall be brought before the Seoul district court. The insurer that indemnified the consignee nonetheless sues the carrier before the Paris Commercial Court. The Cour de cassation upholds French jurisdiction: the clause cannot be relied on against it (commercial chamber, 14 December 2022, No. 20-17.768).
The ruling reaches well beyond Seoul. Since Brexit, it reaches London.
Two regimes, depending on the court the clause designates
Everything starts with a question too often left unasked: does the clause designate a court of an EU Member State? If so, Article 25 of Regulation (EU) No 1215/2012, Brussels I bis, governs, and the Court of Justice has a long and rich case law on bills of lading. If not, because the clause designates Seoul, Singapore, Shanghai or now London, the French judge applies its own rules. And those rules are markedly more favourable to the consignee.
A clause designating an EU court: succession to the shipper’s rights
Between carrier and shipper, Article 25 upholds a clause concluded in a form that accords with a usage of international trade, and the Court of Justice has long accepted that a bill of lading can meet that requirement (CJEC, 19 June 1984, Tilly Russ, 71/83; CJEC, 16 March 1999, Castelletti, C-159/97).
For a third-party holder, the question is different. The clause binds that holder if, in acquiring the bill of lading, it succeeded to the shipper’s rights and obligations (CJEC, 9 November 2000, Coreck Maritime, C-387/98). In 2024 the Court specified that succession is assessed not under the law of the State whose court is designated, but under the national law applicable to the substance, as determined by the private international law rules of the court seised; it added that a Member State may not require the clause to have been individually and separately negotiated by the third-party holder (CJEU, 25 April 2024, Maersk, C-345/22 to C-347/22).
That judgment was given on a Spanish reference, against a Spanish statute that protected the consignee. It leaves it to the court seised to say which law governs succession, and for a bill of lading the answer is far from obvious. For a French consignee faced with a clause designating Rotterdam or Hamburg, the debate is therefore open, but it is fought on the carrier’s ground.
A clause designating a non-EU court: specific acceptance
Outside any treaty and outside EU law, the commercial chamber lays down a simple rule. The consignee may sue the carrier, but is bound by the bill of lading only insofar as it defines the conditions of the carriage itself, from taking in charge to delivery. The jurisdiction clause the bill may contain therefore cannot be relied on against the consignee unless the consignee specifically accepted it.
The 2022 judgment closes the routes by which carriers sought to establish that acceptance. It cannot be inferred from a usage of international carriage, from a prior course of dealing between the parties alone, or from a reference on the face of the bill to the general conditions printed overleaf. The Court of Appeal had noted in passing that the clause was printed in tiny characters, in very pale ink, and could only be read with a magnifying glass. The detail matters less than the principle: it is not for the consignee to prove that it did not read the clause, it is for the carrier to prove that the consignee accepted it.
London, now outside the Union
Before 1 January 2021, a clause designating the High Court fell under Brussels I bis, with the succession analysis that goes with it. Today, London is a third-State court. The Hague Convention of 30 June 2005 on Choice of Court Agreements, to which the Union and the United Kingdom are parties, might have taken over, but its Article 2 expressly excludes the carriage of goods. No treaty therefore makes English jurisdiction mandatory for bills of lading.
The result is a situation few shippers and consignees have measured: the “English courts” clause printed on the back of so many bills of lading is subject, in France, to the same requirement of specific acceptance as the Seoul clause, so that a French consignee who signed nothing, neither a framework contract nor an email exchange approving the carrier’s terms, can sue the carrier before the competent French court without having to argue about the law governing succession to the shipper’s rights, while a carrier that took the initiative and sued in London might well obtain a judgment, but would then have to seek its exequatur in France, in adversarial proceedings in which the indirect jurisdiction of the English court, founded on a clause the consignee never accepted, would be contested step by step. The balance of power is reversed.
One caveat, and not a formal one: all of this concerns the jurisdiction clause. An arbitration clause incorporated in a bill of lading follows other rules, specific to arbitration law, which this analysis does not address.
What we check first
- The court designated by the clause: EU Member State or third State.
- Who is suing: actual consignee, holder, subrogated insurer, and how the bill of lading circulated.
- Any trace of specific acceptance: signature, email exchange, framework contract with the carrier.
- The physical legibility of the clause on the original.
- The one-year time bar against the carrier, which runs while jurisdiction is being argued.
For our work on these matters, see International maritime lawyer in France and Bills of lading.
On the same subject: Bill of lading in France: what the holder can claim, and against whom; Sea waybill or bill of lading: who can sue for cargo damage in France; Delivery without the original bill of lading.
This analysis is part of the firm’s work in maritime law.
Frequently asked questions
Is a foreign jurisdiction clause in a bill of lading binding on the consignee?
If the clause designates a court outside the European Union and no treaty makes that jurisdiction mandatory, it binds the consignee only if the consignee specifically accepted it, and that acceptance cannot be inferred from a usage, a prior course of dealing or a reference from the face of the bill to its back (Cour de cassation, 14 December 2022, No. 20-17.768). If it designates a court of a Member State, it binds the consignee who succeeded to the shipper’s rights under the law applicable to the substance (CJEU, 25 April 2024, Maersk, C-345/22 to C-347/22).
Is a clause designating the English courts treated as an EU clause?
Not since 1 January 2021. London is now a third-State court, and the 2005 Hague Convention excludes the carriage of goods. The French judge therefore applies its ordinary rule, which requires the consignee’s specific acceptance.
Can a subrogated insurer avoid the clause like the consignee?
Yes, to the extent of the consignee’s rights it exercises. In the case decided in 2022, it was the consignee’s insurer that had brought proceedings before the Paris Commercial Court, and French jurisdiction was upheld.