EUPillar Barry Callebaut Sourcing AG, Mitsubishi Corporation Ltd., NV Molenbergnatie NV, Alpina Versicherungs-AG and others v. Otal Investments Ltd., OT Africa Line Ltd. and others

Summary

The defendant carried eighteen containers loaded with cacao beans from Lagos to Antwerp. The claimants and their insurers seek to hold the defendants jointly and severally liable because some bags of cacao beans were missing or damaged. The bills of lading included an exclusive jurisdiction clause in favour of the High Court in London. This clause can be enforced as against a third party if the following conditions are satisfied: if the choice of court clause has been adjudged valid as between the carrier and the shipper and if, by virtue of the relevant national law, the third party, upon acquiring the bill of lading, succeeded to the shipper’s rights and obligations. According to the Belgian Supreme Court, the third party isn’t the shipper’s legal successor – the bill of lading gives him his own independent rights. Therefore, it must be determined whether the choice of court clause is valid as between the third party and the carrier. The defendants argue that bills of lading typically include a choice of court clause, that the claimants were aware of the choice of court clause because they rely on the bill of lading for their own claim, and they never objected to the general terms and conditions printed on that bill of lading. DECISION OF THE COURT The Commercial Court of Antwerp does not agree with the defendants. The objective of Art. 23 Brussels I is to protect weaker parties an ensure the application of the European rules of jurisdiction, therefore it is of strict interpretation. It is true that general terms and conditions have been included in bills of lading for over a century, and that these general terms and conditions generally include a choice of court clause. The holder of the bill of lading, who bought the goods, has no choice but to accept the bill of lading and show it in order to receive the goods. At that moment, he can take cognisance of the general terms and conditions, but he is not in a position to negotiate. The general terms and conditions are imposed on him. Under these circumstances, there can be no question of tacit acceptance on the part of the holder of the bill of lading. The objective of Art. 23 Brussels I is precisely to guarantee the actual acceptance and agreement on a choice of court of both parties. It is also to support the efficiency of international transactions by referring to standard contracts and terms and conditions that the parties active in that particular branch of trade or commerce are familiar with because they use them themselves. That is not the case here either. The choice of court clause is not enforceable as against the second defendant. The goods were delivered in Antwerp so that the Commercial Court has jurisdiction on the basis of Art. 5 Brussels I. Critique: The Commercial Court makes a lengthy and exhaustive analysis of the “usage in international trade” within the meaning of Art. 23(1)(c) Brussels I. It decides that the consignee and the carrier aren’t active in the same branch of trade, so that this validity requirement does not apply to the enforceability of a choice of court clause in the general terms and conditions on a bill of lading as against the third party holder of the bill of lading. It is surprising then that the Court spends so little time on the analysis of Art. 5 Brussels I. The Court states merely that it has jurisdiction because the place of delivery of the goods was in Antwerp. It does not say whether it bases this conclusion on Art. 5(1)(b) – in which case we could wonder why it qualifies the contract of carriage as a contract for the sale of goods – or on Art. 5(1)(a) – in which case the Court should have determined the law applicable to the contract. At least, the Court should have looked in the first place at the terms of the bill of lading itself and not just at the factual place of delivery of the goods.