EUPillar Roba Metals BV and others v. Conti-Lines NV and Lexus Shipping Co. Ltd.

Summary

Roba Metals BV buys 50 rolls of steel from Jindal Vijayanagar Steel Ltd. And 65 rolls of steel from Uttam Galva Steel Ltd. Both contracts are CFR-contracts (cost and freight, the seller must pay the costs and freight necessary to bring the goods to the port of destination). This means that the contracts of carriage are entered into by the seller. The first defendant, Conti-Lines NV, undertook to carry 50 and 65 rolls of steel from Mumbai (India) to Antwerp (Belgium) by two separate bills of lading. Rhenus Logistics is the freight forwarder of Roba Metals. On 16 July 2005, it complains that by telefax that the goods are damaged. The judicial expert who was appointed by the president of the Commercial Court of Antwerp in summary proceedings found that the compartments in the hold of the ship hadn’t been properly sealed. On 13 July 2006, Roba Metals, Rhenus Logistics and eleven insurance companies sued Conti-Lines and Lexus Shipping Co. Ltd. (the ship owner) in payment of 84,331.63 EUR plus interests. The second defendant, Lexus Shipping, contests the jurisdiction of the Belgian courts. Lexus Shipping is established on Cyprus. However, the Commercial Court of Antwerp decides that it does have jurisdiction, pursuant to the choice of court clause that was printed on the back of the bills of lading. In Coreck Maritime (C-387/98), the ECJ decided that “Article 17 of the Convention only applies 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 to a court or the courts of a Contracting State.” The Commercial Court notes that Art. 17 of the Brussels Convention is identical to Art. 23 Brussels I Regulation, so that this case law still applies. In the case at hand, the bills of lading were issued by Conti-Lines, a Belgian company, and the parties granted jurisdiction to the Belgian courts. In any event, the Commercial Court deems it has jurisdiction on the basis of Art. 5(1)(b) Brussels I. A contract of carriage is a “contract for the provision of services” within the meaning of that provision. The obligation of the carrier is to bring the goods to their place of destination and hand them to the beneficiary. The carrier has many other obligations, such as ensuring the preservation of the goods during the whole of the transport, but these obligation are accessory. In casu, the port of destination was Antwerp. Since the claim against Lexus Shipping is based entirely on the bills of lading, this is not a matter relating to tort within the meaning of Art. 5(3) Brussels I. Short critique The bills of lading were issued by the carrier, Conti-Lines NV rather than by the ship owner, Lexus Shipping Co. Ltd. Nevertheless, pursuant to Art. 46(2) in conjunction with Art. 59 of the Belgian Maritime Act, the ship owner is liable for the acts of the captain, and the captain is responsible for the safety of the goods. The Commercial Court of Antwerp refers to the Coreck Maritime case, but only to the answer of the second question, which is actually concerned with the validity of a choice of court clause in favour of the courts of a third (non-Member) State. That wasn’t the issue here, because it was clear from the beginning that the choice of court clause refers to the Belgian courts. The real question here is whether the ship owner could be bound by a choice of court clause in a bill of lading between the carrier and the shipper – as provided by national Belgian law. The answer to that question wouldn’t have changed to outcome, since, for the sake of completeness, the Commercial Court stools its jurisdiction also on the application of Art. 5(1)(b). That is correct.