EUPillar Arimpex Promo Qualita SL v Thalassa Seafoods NV - 2009/AR/968

Summary

Case 2009/AR/968 is concerned with a sales agreement involving carriage of goods sold on CFR terms. The appellant argues that the goods were delivered at the port of departure in Busan, Korea. Therefore, the place of delivery (= performance) is not in Antwerp, so that the courts of Antwerp lack jurisdiction. The defendant on the other hand, alleges that the term CFR Antwerp means that the port of destination is in Antwerp, so that the obligation of delivery was only partly performed in the port of departure, it being fulfilled after delivery of the bill of lading – i.e. at Thalassa Seafoods’ registered office in Antwerp. The Court considers that the Incoterm CFR (cost and freight) means that the seller must pay the costs and freight to bring the goods to the port of destination. However, risk is transferred to the buyer once the goods are loaded on the vessel. Incoterm CFR Antwerp implies that the goods sold will be carried to Antwerp but that they are delivered at the port of departure. As a result, the Antwerp courts do not have jurisdiction. Short critique of the case This case revolves around the correct interpretation of the Car Trim (C-381/08, Car Trim GmbH v. Key Safety Systems srl.) and Electrosteel (C-87/10, Electrosteel Europe SA v. Edil Centro SpA) cases. In the case of a sale involving carriage of goods, the place where, under the contract, the goods sold were delivered or should have been delivered must be determined on the basis of the provisions of that contract, without reference to the substantive law applicable to the contract. The national court seised must take account of all the relevant terms and clauses of that contract which are capable of clearly identifying that place, including terms and clauses which are generally recognised and applied through the usages of international trade or commerce, such as the Incoterms drawn up by the International Chamber of Commerce in the version published in 2000. The Antwerp Court of Appeal correctly applies the case law of the ECJ. The Court must not limit itself by the destination of “Antwerp” in the Incoterm CFR Antwerp, but proceed with an analysis of the Incoterm used by the parties.