EUPillar NV Anglo Belgian Corporation v. BOA Nederland BV - 2993/02

Summary

The claimant is a producer of big diesel engines for ships and locomotives, which it delivered to the firm Vossloh. The accompanying exhaust extension joints were designed by the defendant in the present case. The claimant complained in a letter that the exhaust extension joints fail in their duty within a very short time (after less than 5000 hours) within the warranty period and that it would recover all claims for damages addressed to it by its clients on the defendant. The defendant carried out tests, and thereafter declined all responsibility in a letter on 10 October 2001. The claimant then sued the defendant a few months later. The defendant contests the jurisdiction of the Belgian courts. It argues that the parties had a choice of court agreement pursuant to Art. 23(1)(c) Brussels I. The defendant had made its first offer to the claimant by fax on 2 June 1998, and later tweaked its offer twice on 29 June 1998 and 24 July 1998. In all of its faxes, the defendant had referred to the General Terms and Conditions issued by Koninklijke Metaalunie (the Dutch organization for small and medium-sized enterprises in the metal industry), filed at the Registry of the Rotterdam District Court. These Metaalunie Terms and Conditions confer jurisdiction to the courts of The Netherlands. The claimant argues, successfully, that it never accepted the applicability of the Metaalunie Terms and Conditions, since in its acceptance of the offer by fax of 4 August 1998, it referred to its own general terms and conditions. This fax actually has to be construed as a counteroffer and not as an acceptance, since the claimant actually made a few changes, such as that the delivery would take place CPT ABC and not “ex works”. The agreement was concluded when the defendant accepted on 11 September 1998, without insisting further on the application of the Metaalunie Terms and Conditions. It is true that members of the Metaalunie usually incorporate the Metaalunie Terms and Conditions into their contracts, but that does not mean that every contracting party is automatically bound by these Terms and Conditions. The acceptance of a non-member has to be proven in each particular case. The defendant does not establish that this is a usage of which the parties are or ought to have been aware. On its part, the claimant tries to establish that its own general terms and conditions, including a choice of court clause in favour of the courts of Ghent, Belgium, are applicable on the basis of Art. 23(1)(a). However, the claimant fails to establish that it actually transmitted a copy of the general terms and conditions before the contract was made. They were sent on September 23; after the conclusion of the contract. In the alternative, both parties invoke Art. 5(1) Brussels I. In the case of the sale of goods, Art. 5(1)(b), first indent, grants jurisdiction to the courts of the place in a Member State where, under the contract, the goods were delivered or should have been delivered. Since it appears from the above that none of the parties can rely on their general terms and conditions, it is the Vienna Sales Convention which is applicable to the contract. Art. 31 CISG provides that the delivery takes place by handing the goods over to the first carrier for transmission to the buyer. The CTP ABC provision which was included in the agreement at the insistence of the claimant merely charges the seller with the insurance and transportation costs, and does not influence the place of delivery from a legal point of view. The delivery took place at the corporate seat of the seller. The Belgian courts do not have jurisdiction. SHORT CRITIQUE The Court deals with a battle of the forms. The Court the determines the place of delivery of the goods by reference to the CISG, an approach which was later excluded by the ECJ in Car Trim.