Agreement on jurisdiction could not be set aside under the Danish...

Case no. BS-30435/2020-HJR
Judgment delivered on 9 September 2021

Maersk A/S
vs.
DSV Air & Sea A/S

The dispute between DSV and Maersk arose from a case concerning damages instituted against DSV for loss of cargo during shipment by sea carried out by DSV as the carrier.

DSV had subcontracted the shipment, comprising 16 containers of high-pressure cleaners, to Maersk. These high-pressure cleaners were to be manufactured in China by a Chinese company and then carried by ship from Shanghai to Copenhagen.

The case before the Supreme Court concerned the issue of whether DSV and Maersk had entered into an agreement on jurisdiction, and, if so, if this agreement should be set aside under Section 310(1) of the Merchant Shipping Act.

The sea waybills referred to Maersk’s standard terms and conditions and stipulated, among other things, that the governing law was English law, and that the venue was the High Court of Justice in London. In the sea waybills, a Chinese company was stated as the sender, and DSV as the recipient, just as the Chinese company, Maersk (China) Shipping Co. Ltd. had signed the documents as the agent of Maersk as the carrier.

As regards the issue of the existence of the agreement on jurisdiction, the Supreme Court agreed that such agreement had indeed been made based on the grounds cited by the High Court.

Concerning the issue of whether the agreement should be set aside, the Supreme Court considered that this depended on whether the provisions of the Brussels I Regulation applied.

Referring to, among other things, the case law of the European Court of Justice, the Supreme Court stated that for the provisions on jurisdiction in the Brussels I Regulation to apply, an international element must be involved in the legal relationship. The Supreme Court went on to state that although the parties are domiciled in the same EU member state, the international nature of a legal relationship may derive from the fact that the situation at issue in the proceedings took place in another EU member state or a third state so as to raise questions relating to the determination of international jurisdiction.

Based on an overall assessment of the facts of the case, the Supreme Court held that there was such an international element involved the legal dispute between Maersk and DSV that the Brussels I Regulation, including Article 25 “Prorogation of jurisdiction”, applied to their legal relationship.

Accordingly, under the Merchant Shipping Act, the agreement on jurisdiction could not be set aside.

The Supreme Court upheld Maersk’s claim for dismissal of the case.

The High Court had reached a different conclusion.