PIL instrument(s)

Case number and/or case name

BGH, 15.2.2007 – I ZR 40/04

Details of the court

Germany, Third Instance

Articles referred to by the court

Date of the judgement

14 February 2007

Appeal history

CJEU's case law cited by the court

Summary

The plaintiff is the holder of the bill of lading and claims for damages due to an alleged damage on transport goods. The defendant is a shipping company based in Germany. The goods were delivered from Great Britain to Sweden by a British Limited Company. The captain of the ship whose owner is the defendant has signed the Bill of Lading which contained an IOC clause saying that the contract evidenced by the Bill of Lading was being concluded between the merchant and the owner of the vessel. Further, the Bill of Lading stated that the place of jurisdiction should be the place where the carrier has its principal place of business. The plaintiff claims that the defendant according to the IOC-clause has to be considered as the carrier and therefore German courts were internationally competent. The lower instance courts denied the international jurisdiction of German courts. The Federal Court of Justice affirmed the precedent judgments. It denied the presence of an agreement on German jurisdiction. The court first had to examine the validity of the IOC-clause which had to be done under German law. According to German law the clause was invalid because it violated § 4 AGBG a.F. (former German law on general terms and conditions): on the front of the Bill of Lading the British S.-Ltd. was named with its contact data. The determination in the Bill of Lading saying that the ship owner was the carrier therefore according to the court was contradictory and didn’t have any effect. Therefore the British S.-Ltd. was the carrier. Due to the fact that its principle place of business was Great Britain, the court denied the international jurisdiction of German courts. Further, the court stated that the jurisdiction clause was also binding for the owner of the Bill of Lading if he had affirmed the clause of jurisdiction. This could be assumed when the holder of the Bill of Lading claimed rights from it. The judgment is in accordance with the CJEU jurisdiction in Tilly Russ, C-71/83 and Castelletti, C-159/97 and therefore is correct.