EUPillar V.A. NV, N.F.L. NV, A.C.I. NV v CMA.CGM SAS

Summary

By the bill of lading dated 18 August 2010, the defendant took on the obligation to carry a lot of frozen meat from Santos, Brazil to Antwerp, Belgium for delivery to V.A. NV, the first claimant. In Tanger, Morocco, the defendant transferred the frozen meat to a different refrigerated container, because the first container was defective. At the destination in Antwerp, the Institute for Veterinary Inspection disapproved of the goods, because the numbers of the container and the seal did not correspond to those on the bill of lading. The claimants sued the carrier for damages before the Commercial Court of Antwerp. The defendant contests the jurisdiction of the court. According to the defendant, only the courts of Marseille, France are competent, pursuant to a choice of court clause that is printed in bold letters on the front of the bill of lading. The Antwerp Commercial Court agrees. In case 71/83, the ECJ decided that: “A jurisdiction clause contained in the printed conditions on a bill of lading satisfies the conditions laid down by Article 17 of the Convention: If the agreement of both parties to the conditions containing that clause has been expressed in writing, or If the jurisdiction clause has been the subject-matter of a prior oral agreement between the parties expressly relating to that clause, in which case the bill of lading, signed by the carrier, must be regarded as confirmation in writing of the oral agreement, or If the bill of lading comes within the framework of a continuing business relationship between the parties, in so far as it is thereby established that that relationship is governed by general conditions containing the jurisdiction clause; As regards the relationship between the carrier and a third party holding the bill of lading, the conditions laid down by Article 17 of the Convention are satisfied if the jurisdiction 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.” In Belgium, the Court of Cassation decided that this is indeed the case in its decision of 18 September 1987. The third party enters into the contract of carriage as set out in the bill of lading. The clauses of the bill of lading are enforceable as against the third party. In case C-387/98 (Coreck Maritime), the ECJ decided that: “a jurisdiction clause agreed between a carrier and a shipper which appears in a bill of lading is enforceable against a third party bearer of the bill of lading if he succeeded to the rights and obligations of the shipper under the applicable national law when he acquired the bill of lading. If he did not, it must be ascertained whether he accepted that clause having regard to the requirements laid down in the first paragraph of Article 17 of the Convention.” The evidence submitted to the court by the defendant shows that the first claimant had regularly been presented with bills of lading of the defendant. Therefore, the first claimant must be deemed to have accepted the choice of court clause laid down therein. Short critique: The court refers to article 23(1) Brussels I and does not specify which sub-paragraphs it applies. The court refers to the case law of the ECJ from the time of the Brussels Convention and does not seem to realise that the wording has changed. The court accepts the forum clause in the bill of lading because there was the equivalent of a "practice between the parties" in Brussels I, but could also have referred to Art. 23(1)(c) Brussels I.