EUPillar LG Hamburg, 02.05.2005

Summary

The parties argue over claims for payment of derived from a sea freight contract. The plaintiff made out an invoice to the defendant in consequence of the shipment of vehicles to South America. The invoices included a term stating that the plaintiff only works on the basis of German Freight Forwarders' Standard Terms and Conditions (ADSp) and that the place of performance and of jurisdiction is Hamburg, Germany. The defendant only paid partly. The international jurisdiction of the LG Hamburg is in question. The court starts to examine if the jurisdiction agreement is valid with regard to Art. 23(1) Brussels I Regulation but quickly declares the examination unnecessary as the international jurisdiction results from Art. 5(1)(a). The court holds that the sea freight transport is no service in the meaning of Art. 5(1)(b) Brussels I and refers to Art. 51 EC. It then applies Art. 5(1)(a) Brussels I. Within the scope of this article, German law is applicable through the national conflict of law rules. The court also holds that the ADSp are effectively included, in which the parties agreed upon Hamburg as the place of performance. It is also considered if this agreement may be seen as an abstract agreement upon the place of performance with the consequence that the formal requirements of Art. 23(1) would be applicable. This point of view is rejected as the place of performance is truly intended by the parties. As the court states that sea freight transports may not be considered as services within the meaning of Art. 5(1)(b) Brussels I this point of view cannot be accepted. In the decision C-204/08 from 2009 the CJEU clearly states that sea freight transports are considered services and that the term “services” cannot be defined by referring to EU primary law. Also, the handling of the prorogation through Art. 23(1) Brussels I can be criticized as generally it has priority over the jurisdiction based on Art. 5(1) Brussels I. Yet, in this case it may be accepted as no other outcome could have been expected and the procedural economy also has to be kept in mind.