EUPillar Zeppelin Systems USA Inc. v. Scheepvaartonderneming “Pottersgracht” and others - AR 04/370

Summary

According to the bill of lading issued on 8 December 2002, NV Zeppelin, transported an aluminium silo from Antwerp (Belgium) to Houston (USA) for the benefit of its sister company, Zeppelin Systems USA, the claimant in this case. The silo arrived damaged at its destination. The general terms and conditions on the back of the bill of lading lay down the following clause: “Any dispute arising under this bill of lading shall be decided according to Netherlands law, except as provided elsewhere herein, and in the district court of justice (Arrondissementsrechtbank) at Amsterdam, to the exclusive jurisdiction of which the carrier and the merchant submit themselves.” The Antwerp Commercial Court examines its jurisdiction in accordance with Brussels I. Art. 23(1) Brussels I applies only if, first, at least one of the parties to the original contract is domiciled in a Contracting State and, secondly, the parties agree to submit any disputes before a court or the courts of a Contracting State. Both requirements are fulfilled. The Commercial Court examines whether the choice of court clause on the back of the bill of lading is in a form which accords with a usage of which the parties are or ought to have been aware and which in international trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned (cf. Art. 23(1)(c)). The Court decides that this is not the case. The carriers impose their own general terms and conditions on the weaker parties to the contract of carriage, namely the shippers. If you were to accept that this is a usage, that would mean that the carrier can create his own “usage” in his favour. That would go against the intentions of the ECJ. Moreover, the carrier and the shipper aren’t active in the same type of trade or commerce, so that the usage, within the meaning of the Brussels I Regulation, can never play a role in contracts of carriage. Art. 23(1)(b) and 23(1)(c) are therefore not applicable in this case. The Commercial Court then determines whether Art. 23(1)(a) is applicable. After a study of the submitted documents, the Court concludes that the defendants never issued a bill of lading, but a simple, non-negotiable sea waybill. That means that point 2 of the Tilly Russ case (C-71/83) is not applicable. The defendants fail to establish that the requirements laid down by the ECJ in point 1 of the Tilly Russ case are fulfilled. Since the defendants are domiciled in The Netherlands, the Dutch courts have jurisdiction pursuant to Art. 2 Brussels I. The claimant argues that the Belgian courts also have jurisdiction on the basis of Art. 5(1) Brussels I. The Court decides that a contract of carriage is neither a contract for the sale of goods nor a contract for the provision of services within the meaning of Art. 5(1)(b). Therefore, Art. 5(1)(a) Brussels I is applicable. In conformity with the Tessili method, the Court shall first determine the law that is applicable to the obligation in question. The Court decides that the contract of carriage is most closely connected to Belgium (cf. Art. 4(5) European Contracts Convention): the shipper’s main place of residence is in Belgium, the goods were loaded in the port of Antwerp and the contract was concluded in Belgium, where the carrier’s agent is established. Therefore, Belgian law is applicable. The issue here is whether the aluminium silo had to be loaded under deck or on deck. The obligation in question, the obligation to load the silo correctly, had to be performed at the port of Antwerp. Therefore, the Antwerp courts have jurisdiction. Short critique The court qualifies a contract of carriage as neither a contract for the provision of services nor a contract for the sale of goods. This is not correct - a contract of carriage is a contract for the provision of services.