C-159/97

OPINION OF MR LÉGER — CASE C-159/97

OPINION OF ADVOCATE GENERAL LÉGER delivered on 22 September 1998 " Summary

Legal framework I - 1601 Facts I - 1603 Preliminary remarks I - 1605 Opinion 1-1608 I — Jurisdictional capacity (third and seventh questions) I - 1608 third question I - 1608 seventh question I - 1609 II — The consent of the parties to the jurisdiction clause (first and eleventh questions and the first part of the second question) I - 1612 first question I - 1612 eleventh question I - 1615 second question I - 1615 III — 'Form which accords with usages in international trade or commerce' (second question, second and third limbs, fourth, eighth, tenth and ninth questions) I - 1618 'Forms which accord' I - 1618 second question I - 1618 Usage 1-1620 fourth question I - 1620 eighth question I - 1622 tenth question I - 1623 International trade or commerce I - 1624 ninth question I - 1624 IV — The· parties' awareness of the usage in question (thirteenth, fourteenth, twelfth, fifth and sixth questions) I - 1626 thirteenth question I - 1626 fourteenth question I - 1628 twelfth question I - 1629 fifth question I - 1629 sixth question I - 1630

Conclusion 1-1631 Annex: The preliminary questions submitted by the Corte Suprema di Cassazione I - 1632

* Original language: French.

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1 — For case of reading, the complete text of the questions is annexed. 2 — Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1972 L 299, p. 32), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, including the Protocol on its interpretation by the Court of Justice (OJ 1978 L 304, p. 1, amended version at p. 77). 4. The article in question, Article 17, 'is prob- 3 — Bill of lading is defined in Article 1(7) of the 'United Nations ably the article of the Convention that was Convention on the Carriage of Goods by Sea' of 31 Marcii 1978, more widely known under the name 'Hamburg Rules' the most transformed by the successive acces- — to which, for the purposes of the present case, neither the Italian Republic nor the Argentinean Republic seem to be sions of new States'. 5 It is thus useful to parties — adopted within the framework of the United briefly recall the evolution of this provision. Nations Conference on the Development of Trade and Industry (Cnudci): 'Bill of lading means a document which evidences a contract of carriage by sea, and the taking over or loading of the goods by the carrier, and by which the car- rier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods arc 4 — Case C-106/95 MSG [1997] ECR 1-911, paragraph 7, which to be delivered to the order of a named person, or to order, refers to the judgments in Case 24/76 Estasis Salotti [1976] or tobcarcr, consu'tuics such an undertaking'. The nature of ECR 1831, paragraph 7, and Case 25/76 Scgoum [1976] ECR the bil! of lading is, however, disputed. As proof of this, one 1851, paragraph 6. can refer to the Opinion of Advocate General Sir Gordon 5 — Gaudcmct-Tallon, li.: Les Conventions tic Bruxelles et tle Slynn in Case 71/83 Tilly Run [1984] ECR 2417 at p. 2438. Lugano, LGDJ, 1996, paragrapli 104.

'If the parties, one or more of whom is domi- ciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes 'If the parties, one or more of whom is domi- which have arisen or which may arise in ciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in con- 6 — My emphasis. nection with a particular legal relationship, 7 — Convention on the Accession of the Kingdom of Spain and the Portuguese Republic to the Convention on Jurisdiction that court or those courts shall have exclusive and the Enforcement of Judgments in Civil and Commercial Matters and to the Protocol on its interpretation by the Court jurisdiction. Such an agreement conferring of Justice with the adjustments made to them by the Conven- tion on the Accession of the Kingdom of Denmark, Ireland jurisdiction shall be either in writing or evi- and the United Kingdom of Great Britain and Northern Ire- denced in writing or, in international trade or land and the adjustments made to them by the Convention on the Accession of the Hellenic Republic (OJ 1989 L 285, commerce, in a form which accords with p. 1).

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connection with a particular legal relation- Facts ship, that court or those courts shall have exclusive jurisdiction. Such an agreement con- ferring jurisdiction shall be either:

8. The questions referred to the Court origi- nated in the following facts:

10. As a result of problems which arose during the unloading of the goods, Castelletti brought an action against the forwarding agent of the ship and the Danish carrier, 9 Hugo (c) in international trade or commerce, in a Trumpy SpA (or hereinafter 'the respondent form which accords with a usage of which in the main proceedings'), having its regis- the parties are or ought to have been tered office in Genoa, Italy, before the Tribu- nale di Genova (Genoa District Court) seeking aware and which in such trade or com- an order for payment of compensation. merce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned' 8 9 — In shipping mailers, the fonoarding agent of the ship is the representative of tile carrier (shipowner), linked to his prin- cipal by a consignment contract, responsible for the receipt and delivery of the goods on behalf of the latter and, more Generally, to sec through all operations that the captain docs not carry out himself. He is distinguishable from the for- warding agent of the carso who in contrasi is a representa- tive having the job of taking delivery of the goods on behalf of the consignee (lutmy Trantport, volume 2, section 4, Mari- 8 — My emphasis. time Transport, Nos 631 and 637).

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11. The respondent in the main proceedings shipper appearing just below particulars of immediately invoked the lack of jurisdiction the cargo, is appended beside the reference of the Italian court, relying on Article 17 of 'above particulars declared by shipper'. 1 2 the Brussels Convention, as drafted following the Accession Convention of Luxembourg of 1978 and clause 37 of the bills of lading, con- ferring jurisdiction on the High Court of Jus- tice, London.

10 — [In the original French text, a French translation is given here.] 11 — [French translation.] 12 — [French translation].

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15. The Corte Suprema di Cassazione ruled case-law on Article 17 of the Convention, u that: 'the plea of the applicant is admissible'. 13 in particular before the amendment made in While finding that the amended 1978 Con- 1978, in order to ascertain that it is still rel- vention was applicable, it considered that there evant after that date. On the one hand, it docs nevertheless existed a doubt as to the correct not follow from the Schlosser Report 1 5 that interpretation of the (new) wording of Article the wish of the Contracting Parties was to 17, which requires that an agreement confer- completely change the meaning and scope of ring jurisdiction should be concluded 'in inter- this provision: the aim was rather to resolve national trade or commerce in a form which a number of difficulties encountered in prac- accords with usages in that trade or com- tice and to anticipate the particularities of new merce of which the parties are or ought to members. O n the other hand, I doubt the rel- have been aware', since it ruled out the pos- evance of some of the questions submitted sibility that the agreement had been made in for the resolution of the case, especially since writing, or was even evidenced in writing. the scant information contained in the order for reference does not assist in probing the concerns of the court that prompted them.

16. It thus granted a stay and referred to the Court fourteen questions, reproduced in the annex, which may be regrouped under dif- ferent headings, which I will now examine in turn. 19. It is also true, as wc shall sec, that a cer- tain number of the questions formulated have lost some relevance since the Court's rulings in recent cases, in particular MSG, ibid., and the judgment of 3 July 1997 in Bcnincasa. Xb Preliminary remarks

25. In requiring that at least one of the par- ties be 'domiciled in a Contracting State', the authors of the Convention really envisaged three types of situation, as M. Jenard zo empha- O n the other hand, neither the Accession sised in his report: 'Article 17 applies where Convention of 25 October 1982 18 nor — a the agreement conferring jurisdiction was fortiori — that of San Sebastian had entered made either between a person domiciled in into force at the time of the facts in question. one Contracting State and a person domiciled in another Contracting State, or between a person domiciled in a Contracting State and 17 — The Accession Convention signed on 9 October Î978 in a person domiciled outside the Community, Luxembourg came into force between the six original States if the agreement confers jurisdiction on the and the Kingdom of Denmark on 1 October 1986, then between these seven States and the United Kingdom of Great Courts of a Contracting State; it also applies Britain and Northern Ireland on 1 January 1987. where two person domiciled in one Con- 18 — Convention on the Accession of the Hellenic Republic to the Convention on Jurisdiction and the Enforcement of tracting State agree that the Court of another Judgments in Civil and Commercial Matters and to the P r o - tocol on its interpretation by the Court of Justice with the adjustments made to them by the Convention on the Acces- sion of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1982 L 388, p. 1). This second Accession Convention entered into 19 — Paragraph 2, first indent of the translation of the order for force on 1 April 1989 in relations between the Contracting reference. Parties, except for relations with the United Kingdom or 20 — Report on the Convention on Jurisdiction and the Enforce- Great Britain and Northern Ireland, for which it entered ment of Judgments in Civil and Commercial Matters (OJ into force on 1 October 1989. 1979 C 59, p. 1), called the 'Jenard Report'.

21 — Ibid., p. 38. 22 — Paragraph 174. 24 — Apart from the United Nations Convention on the carriage of goods bysea, I also note the international convention for 23 — The information according to which the Danish carrier has the unification of certain rules for bills of lading signed at its registered office in Denmark appears in paragraph 2, first Brussels on 25 August 1924 (wrongly referred to sometimes indent, of the translation of üle order for reference. In con- by the name of the 'Hague Rules') and the protocols trast, no information can be found as regards the 'domicile' amending this convention, also signed at Brussels, the former of die Argentine shippers; I assume nevertheless that it is on 23 February 1968 (called the 'Visby Rules'), the other on outside a country that is a member of the Convention. 21 December 1979.

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Opinion way to the dispute. The question is worded as follows:

32. Despite their large number, the questions referred to the Court essentially seek to have the Court explain each of the three elements '[The Corte Suprema di Cassazione asks] affecting the validity of a jurisdiction clause whether the designated court must, as well as from the point of view of the third case men- being a court of a Contracting State, be in tioned in the second sentence of the first some way related to the nationality and/or paragraph of Article 17 of the Convention in the residence of the parties to the contract or its 1978 version. They mean to identify at the to the place of performance and/or conclu- outset the competent court to rule on the sion of the contract, or whether the first con- conditions for application of this provision. dition is sufficient without there being any other link with the substance of the relation- ship.'

40. In reply to the third question, it therefore suffices to say that, for the application of Article 17, it is not necessary that the juris- diction chosen has a link with the parties or 38. This is, as academic writers have stated, 28 the contract. 30 a rejection of the theory oí forum conveniens, the practical difficulties for the application of which, arising from the determination of the link between the case and the court desig- nated, can easily be imagined. On the con- trary, it may be preferable to leave the parties to choose the most neutral court possible, which may be completely unconnected to 41. The jurisdiction chosen docs not, how- their dispute. As one author states, 'If every ever, always necessarily coincide with the possibility of absolute neutrality had been court seised. Dealings with a clause confer- eliminated from the outset, it would have ring jurisdiction can be a source of difficulty encouraged the parties to turn to arbitration, for the latter, as in the present case, which led where the absence of an objective link between the national court to ask the seventh question, the dispute and the arbitrators is more usu- which is: ally the case in international matters'. 2 '

46. It is true that, in those two cases, the court before which the matter was brought was the court designated by the clause. The 43. If the power of the court designated by reasoning followed should however prevail the jurisdiction clause to rule on its validity where this is not the case. is not in doubt, that of the court seised raises certain questions. 31 It is true that the exclu- sive nature of the jurisdiction conferred on the court chosen by the parties could be invoked against it, under Article 17, according to which the 'court or the courts [designated 47. If the court before which the matter is by the parties] shall have exclusive jurisdic- brought is not recognised as having power to tion'. rule in the first place on the validity of the clauses electing a foreign jurisdiction, it should logically be allowed to stay proceedings as soon as it is seised, in order to refer the par- ties to the court designated, so as to leave it to the latter court to review the validity of 44. However, it does not seem to me that it the clause conferring jurisdiction on it, should end at this consideration. The case-law although it may mean that the latter court and the Schlosser Report, seem to me in fact will refer the case back again to the court to be without ambiguity in this regard. originally seised should review of this issue be negative. One can see immediately the incoherence of such a mechanism in the scheme of the Convention, one of whose objectives is to facilitate the immediate and speedy designation of a competent court. 45. In Estasis and Segoura, cited above, 32 the Court stated that '... Article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction was in fact the subject of consensus between the parties', 48. The Court's recent judgment in Benin- casa, cited above, without specifically tackling this aspect, nevertheless ruled on the related 31 — Sec, for example, Watté, N., Nuyts, A., and Boularbah, H.: 'Chronique •—• La Convention de Bruxelles (deuxième par- question of the court competent to determine tie)', Journal des Tribunaux de Droit Européen, Aprii 199S, whether or not the dispute falls within the paragraph 21, which favours the jurisdiction of the court seised to recognise the validity of the clause. The contrary scope of application of the clause conferring opinions expressed by Beruado, J.-P., Blanchin, C, and Alexandre, À. are also cited (footnote 15), jurisdiction in favour of the '... the national 32 — Paragraphs 7 and 6 respectively. court...[before which] the clause conferring

50. The Schlosser Report does not really say anything different when it states that '... the existence of an agreement conferring jurisdic­ tion on a court other than the one seised of the proceedings is ... taken into account by 53. As regards the issue, also dealt with in the court of its own motion.' 3 4 Thus, once it the seventh question, of the extent of review is accepted that the court seised of the pro­ over this clause by the court seised, this docs ceedings has to satisfy itself that the parties not seem to me to require detailed consider­ have not agreed to another jurisdiction, it ation. It is sufficient to accept that, as the must be accepted that it is also allowed, by court seised is competent to rule on the the same token as it were, to verify the validity validity of the clause, this review can also of such an election of jurisdiction. extend to all aspects affecting this validity, set out under Article 17. These are in fact the points raised in the subsequent questions, concerning the consent of the parties to the 33 — Benineasa, cited above, paragraph 31, which refers to Case clause, the existence of a usage in interna­ C-214/89 Powell Dtiffryn v Péteréit ŕ[1992] ECR 1-1745, tional trade or commerce and the parties' paragraph 37), where this principle haa already been stated. 34 — Paragraph 174. awareness of the usage.

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54. I therefore consider that, in reply to the 57. The first question is worded in these terms: seventh question, it should be stated that the court seised, whether or not it is the court designated in the clause conferring jurisdic- tion, is competent to rule on the validity of the clause in relation to the conditions set out under Article 17.

However, in light of the insertion into the new wording of the provision of the refer- 56. That is the purpose of the very detailed ence to usage, which is prescriptive (and thus first question, to which the Court has in the unconnected to the will of the parties, at least meantime, as we shall see, logically given an so far as specifically concerns a particular affirmative response. Then, in relation to the contract), the question arises whether the first part of the second question, as well as requirement of (actual) knowledge, or of lack the eleventh question, I will examine who are of awareness arising out of negligent and the 'parties' from which such consent is inexcusable ignorance, is sufficient in view of required, in a situation such as in the present the consistent incorporation (in all agree- case, where the parties which originally con- ments similar to that in issue) of the jurisdic- cluded and/or signed the bill of lading are not tion clause. The question arises, in other necessarily those who rely on it or against words, whether it is any longer necessary to whom it is invoked subsequently. ascertain the will of the parties, despite the

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59. Moreover, this is echoed in the Jenard Report, which states that: '[clauses conferring jurisdiction] will be taken into consideration only if they are the subject of an agreement, and this implies the consent of all the par- tics', 35 which the Court has taken up in the following terms, in emphasising that 'by making [the validity of clauses conferring jurisdiction] subject to the existence of an "agreement" between the parties, Article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was 61. The requirement of the consent of the in fact the subject of a consensus between the parties.' 36 parties to the jurisdiction clause still seems to me to affect the validity of the latter under Article 17, since the amendment made in 1978. The reference to usages can only mean that the parties could in future find themselves confronted by a clause to which they would not have agreed. 60. In accordance with the purpose of this provision, the Court found, in its recent

37 — Tilly Russ, ibid., paragraph 14, which refers to the decisions in Estasis Salotti and Scgoura, ibid., and Case 784/79 Porta- 35 — Jenard Report, p. 37. Leasing v Prestige International [1980] LCR 1517. 36 — Estasis Salotti, ibid., paragraph 7. 38 — Ibid., paragraph 15.

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62. It is true, however, as results from the adhere to them. 40 To facilitate the speed of Schlosser Report, that the authors of the 1978 transactions, there is thus an implied consent Accession Convention wished to reduce the between the parties to these usages that is excessive formalism that the old version of recognised in the new wording of Article 17, Article 17, in requiring in every case written or, according to the words of Advocate Gen- confirmation of this consent, tended to pro- eral Tesuaro, 'a presumption of actual con- mote. sensus'. 41

64. That is why the reference to usages in the new version of Article 17 means, according to the terms of this provision, 'in international 66. In reply to the first question, it should be trade or commerce', 'in a form ... which the explained to the national court that, notwith- parties are or ought to have been aware'. standing the relaxation of the conditions of Thus, if it no longer refers to a written under- taking of the parties, it is because it is pre- sumed that, as professionals in the area of 40 — The absence of an express reference to written form also trade in question, they have a knowledge of allows the validity or non-written forms to be accepted, which may be recognised b y practices of international trade the usages that are practised in it and tacitly or commerce, such as a mere oral agreement, or a customary gesture, like a handshake. 41 — Opinion of Advocate General Tesuaro in the MSG case, cited above, paragraph 25. 42 — MSG, cited above, paragraph 17. 39 — Schlosser Report, paragraph 179. 43 — Ibid., paragraph 19, my emphasis.

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form in 1978, the actual consent of the par- refers to an agreement conferring exclusive ties to the jurisdiction clause is still required jurisdiction, even in the absence of the signa- for the purposes of the validity of the clause ture of the other party (the shipper).' under Article 17 of the Convention. This consent is presumed to exist where such a clause constitutes a usage, in the relevant branch of trade, adopted in a form that the parties are, or ought to have been, aware of.

72. One would be tempted to state apriori as a principle that a jurisdiction clause, like any 69. 'The second question concerns the meaning contractual stipulation, only binds the parties of the expression "form which accords". The first aspect concerns the way in which the clause appears, that is whether it must neces- 44 ·— In lhe circumstances ofthc present case, one of the parties sarily be in writing signed by the party who to thedispute in tlie main proceedings is the agcnl of one of has it drawn it up and who has therefore the original parties. The forwarding agent of the ship and of the carrier, respondent in the main proceedings, cannot thus expressed the intention of relying upon it — be considered to be a third parly to the original bill of lading. The situation of the appellant in the main proceed- for example — by signing the bill of lading ings, bearer of the bill of lading, is different. He may be, referring specifically to a clause which in turn according to the applicable law, a third parly to the initial agreement (sec, in this regard, the decision in Tilly Rim).

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that have agreed it and those parties only. those who took part in the vote on the stat- This principle may be even more appropriate utes, whether voting for or against the clause, as regards arbitration and jurisdiction clauses and also all subsequent shareholders, irrespec- in so far as they fall outside the normal rules. tive of how their shares were acquired.

45 — Sec, in favour of this extension of the effects of a jurisdic- tion clause to certain categories of third parties, Gothot P., 78. The Court considered that the third party and Holleaux D., ibid,, paragraph 186. 46 — Case 201/82 Gerling Konzern Speziale Kreditversicherung* could not escape the jurisdiction provision in and Others v Amministrazione del Tesoro dello Stato [1983] the bill of lading on the ground that he did E C R 2503, paragraph 20. 47 — This decision concerned the possibility for a third party to not give his consent to the latter, since, in this an insurance contract, benefiting from a stipulation in favour situation, 'acquisition of the bill of lading of a third party to the policy-holder, to invoke a jurisdic- tion clause against the insurer, a clause based on the need to could not confer upon the third party more protect the insured, as the person in a weaker economic rights than those attaching to the shipper position. 48 — In support of a general extension of the possibility for any under it. The third party holding the bill of beneficiary to invoke the clause in his favour, see Gaudemet- lading thus becomes vested with all the rights, Tallon, H., ibid., paragraph 141. 49 — In particular, paragraphs 27 to 29. and at the same time becomes subject to all

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the obligations, including those relating to the to 'usages in international trade or commerce' agreement on jurisdiction.' 50 known to the parties allows it to be presumed that they consented to the clause.

50 — Tilly Russ, ibid., paragraph 25. 51 — I should also add that, although this is not covered in the order for reference, it is likely that the agent, the respondent in the main proceedings, is considered by the national court to be the carrier's agent. In this case, he cannot be consid- ered to be a third party to the bill of lading and the factual 85. As regards the relationship between the situation would be identical to that in Tilly Rusr. only one of the two parties to the dispute would have to be consid- agent of the ship and of the carrier and the ered as a third party to the bill of lading. third party holding the bill of lading,

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Article 17 of the Convention applies where 88. I would also observe that it is not for me the jurisdiction clause was adjudged to be or for the Court to determine whether, in the valid between the shipper and the carrier, and, present case, the insertion of a clause confer- under the applicable national law, the third ring jurisdiction on the High Court of Justice party bearer, in acquiring the bill of lading, on the reverse side of a pre-printed bill of and the agent, by virtue of his capacity, suc- lading constitutes a usage within the meaning ceeded to the rights and obligations of the of Article 17 of the Convention. Our role can shipper and the carrier respectively. only be to provide guidance to the national court, which, in the final analysis, must, in the light of the interpretative elements pro- vided to it, decide whether there is a usage within the meaning of this provision.

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whether it is sufficient for it to be a language position compared with the other clauses also regularly used in international trade or com- depends on the usages followed in the branch merce.' of trade concerned.

90. O n the latter point, the Court has already held, in Elefanten Schuh S2, that the validity of a clause conferring jurisdiction cannot be 93. Certainly, as the Schlosser Report states, the contracting party should be protected put into question simply because the language 'from the danger of finding himself inadvert- in which it is formulated is not that stipulated ently bound by standard forms of agreement, by the national law of a Contracting State. containing jurisdiction clauses without real- ising it.' M

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96. These various elements are precisely the 100. Whilst the reasons that were put for- subject of the questions that I will consider ward at the time of the amendment in 1978 hereafter, are known — the Schlosser Report empha- sises that 'the interpretation of that Article, which many national courts have shown a tendency to follow, does not cater adequately for the customs and requirements of interna- tional trade. These are the factors behind the 97. In reply to the second question, con- relaxation of the formal provisions for inter- cerning the 'forms which accord' within the national trade in the amended version of meaning of Article 17, I can only refer the Article 1 7 ' 5 5 — no definition or under- national court to the usages followed in the standing of the notion of usage to which ref- relevant branch of international trade or com- erence is now made appears in the text of the merce, without being able to prescribe apriori report. the observance of the forms provided for under the provisions of the applicable law.

Usage

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(or a usage) in such trade or commerce of the national law of the Contracting States, which the parties are or ought to have been must be interpreted independently, by refer­ aware. It is moreover required that the usage ence principally to the system and objectives shall be, on the one hand, widely known in of the Convention, in order to ensure that the international trade or commerce and, on the Convention is uniformly applied in all the other, regularly observed by parties to con­ 60 Contracting States.' The same should also tracts of the type involved in the particular apply to the notion of 'usage', within the trade or commerce concerned.' 5 8 meaning of Article 17.

60 — Benincasit, ibid., paragraph 12, which refers, notably, to the judgments in Case 150/77 Bertrand v Paul Ott [1978] ECR 58 — Ibid., paragraph 58. 1431, paragraphs 14 to 16 and 19, and Case C-89/91 Sbcanon 59 — In this regard also, sec, for example, Gothot, P., Hollcaux, Lehmann Uunon v TVB [1993] LCR 1-139, paragraph 13. D., and Bćraudo, J.-P, cited by Alexandre, D., ibid., No 257. 61 — MSG, ibid., paragraph 21.

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generally and regularly followed by operators the clause itself is indicative of the fact that in that branch when concluding contracts of usage regarding the insertion of the clause in a particular type.' 62 forms has not become well established.'

106. In so doing, the Court, anticipating, it might be said, the terms of the Convention of • San Sebastian, which was not applicable at the time to the facts at issue, and which in 109. In inquiring about the consequences to 1989 explained that the usage to which refer- be drawn from actions brought to challenge ence is made should be 'widely known to, a practice (the incorporation of jurisdiction and regularly observed by, parties to contracts clauses in bills of lading), the Italian court of the type involved in the particular [inter- necessarily recognises that this practice is regu- national] trade or commerce concerned,' relied larly followed, since it has-to be brought broadly on that formula, before the courts in order to dispute its appli- cation. It therefore accepts that such a prac- tice does constitute a usage.

107. Therein lies the answer to the fourth question, whereby it should be considered that a usage comes into being when a par- ticular course of conduct is generally and regularly followed by operators in the branch 110. Whether this usage then becomes the concerned when concluding contracts of a object of disputes as to its application or even particular type. its very existence, to a greater or lesser extent, on a local, national, or international level (all elements that the order for reference does not allow to be determined) does not deprive it of its nature as a usage if it continues to be regu- 108. The eighth question asks the Court to larly followed in the branch of trade or com- state: merce in question.

their use. 63 However, so long as these argu- 114. It seems to me that this question has ments have not been resolved, that is, in effect, two aspects. notwithstanding the criticisms to which they are subjected, so long as the jurisdiction clauses at issue continue to be the practice generally and regularly followed by traders within the particular trade or commerce con- cerned when contracts of the same type are concluded, they will still retain their status as 115. The first seeks to determine whether it a usage. is permissible, within the framework of Article 17 of the Convention, to invoke a usage which would derogate from the legislative provi- sions, applicable in principle, relating to the form of clauses conferring jurisdiction. The response can only be affirmative, to my mind, 112. My proposed response to the eighth since this is the entire purpose of Article 17 question is therefore that, merely because a of the Convention: to give to the parties' practice constitutive of a usage within the wishes a value over and above any other rule meaning of Article 17 of the Convention is applicable in principle, and in particular to contested, this cannot cause it to cease to the ordinary statutory provisions. constitute a usage.

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International trade or commerce practice in all the States party to the Conven- tion.

118. The MSG judgment, cited above, also contains trie answer to the ninth question 121. The Court considers that the existence from the Corte Suprema di Cassazione, con- of a usage should 'not be determined in rela- cerning the geographical delimitation of the tion to international trade or commerce in usage to which reference is made in Article general, but [in relation] to the branch of trade 17. This question asks: or commerce in which the parties to the con- tract are operating'. 66

'whether the usage must exist in all the coun- tries of the European Community, or whether the expression "international trade or com- 122. It would seem that this consideration is merce" is intended to mean that it is suffi- enough to dispel any possibility of national cient for the usage to be practised in those links. countries which, in the context of interna- tional trade or commerce, have traditionally played a prominent role'.

123. The problem does not appear to me to be whether the national court should take account of a usage accepted in certain coun- 119. The reference to the form which accords tries, rather than in the chosen country of with 'usages in international trade or com- jurisdiction for instance, or in certain coun- merce' does not in reality follow from either tries, rather than in those which have an of the two alternatives put forward by the objective link with the dispute. 67 referring court.

125. That is why I consider that the reference made by the Court clearly covers a field of activity, that of 'the particular branch of trade or commerce in which the contracting parties operate', and not a national practice. In cir- 128. Therefore, in response to the ninth ques- cumstances such as those in the present case tion, it should be stated that the reference to for example, this means referring to usages usages in Article 17 of the Convention docs followed in the branch of transport, or more not have any geographical or territorial char- specifically, as the case may be, in the branch acter whatsoever, but, on the contrary, covers of transport of consignments of fruit by sea. a field, of the trade or commerce in question: the 'particular trade or commerce in which the parties operate'. In this regard, it is for the national court to satisfy itself that the form of the jurisdiction clause corresponds 126. In other words, the referring court will with a usage governing the field of interna- not in principle need to investigate, as its tional trade or commerce in which the con- question suggests, whether it is the practice in tracting parties operate. the United Kingdom, for instance, or in cer- tain other signatory States to the Convention, to put jurisdiction clauses on the reverse side of pre-printed bills of lading. O n the other hand, the court will have to verify that such clauses do form a usage in the international carriage of consignments of fruit by sea. 129. It is for the national court, on the basis of the answers given for the purpose of defining the notion of usage referred to in Article 17, to determine whether, in the cir- 127. It is unlikely that, in conducting this cumstances of the case, the reference to a investigation, the court would find different jurisdiction clause, such as the one which it usages in the same trade. If, however, that has to examine, on the reverse side of a bill of lading, corresponds to a 'form which accords with usages of international trade or 69 — Ibid., paragraph 40. commerce'.

IV — The parties' awareness of the usage in question (thirteenth, fourteenth, twelfth, fifth and sixth questions) 135. The question of identifying the party whose awareness of the usage is required is actually linked to that, already examined, of identifying the party whose consent to the clause affects its validity. 132. Five of the questions submitted to the Court concern the last condition for the validity of a jurisdiction clause within the meaning of the Article 17 at issue: the expres- sion of the parties' awareness of the usage in question. 136. I have suggested to the Court, pursuant to the Tilly Russ judgment, cited above, 71 that the clause in question should be held to be enforceable against parties who have suc- 70 — Paragraph 15 of the present Opinion. The Court has in fact held that the mere printing on the reverse side of a bill of ceeded, according to the applicable national lading of a jurisdiction clause does not satisfy the condition of a 'written agreement' within the meaning of Article 17 of law, to the rights and obligations of the the Convention {Tilly Russ, ibid., paragraph 16). However, such a clause may be valid if it was the subject of an oral agreement confirmed in writing (ibid., paragraph 17). It would also be valid in the context of regular commercial dealings between the parties (ibid., paragraph 18). 71 — Paragraphs 68 to 85 of this Opinion.

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original parties, where their consent to the seeking to rely on them, according to the rel- clause may be presumed. evant national provisions.

139. Once again, where a third party suc- ceeds to the rights and obligations of one of the original parties to an agreement con- 142. As regards the fact that one of the taining a clause electing a court by virtue of original parties to the agreement was not a the applicable law, the effects of this clause national of a State party to the Convention, are transferred to this beneficiary, without its this has no bearing on the question now being being necessary systematically to check com- considered. The Convention makes no refer- pliance with each of the elements affecting the ence at all to the nationality of the persons to validity of the clause under the Convention. which it applies. On the other hand, impor- tance is, of course, attached to the criterion of domicile for determining its application and the jurisdictions it establishes. As I have already pointed out, the application of Article 140. The court still needs to ascertain that the 17 is precisely dependent on that criterion of rights and obligations of the original party domicile within a Contracting State. 74 Since have actually been transferred to the party

73 — Paragraph 19, my emphasis. 72 — Gothot, P., and Hollcaux, D., cited above, paragraph 186. 74 — Paragraph 25 of this Opinion.

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145. The Court's recent judgment in MSG, 75 — MSG, cited above, paragraph 24. 76 — Estasis Salotti, Segoura and Tilly Russ, cited above, and Case cited above, provides an answer to this 313/85 Ivcco Fiat [1986] ECR. 3337.

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147. Consequently, the questions about the clause conferring jurisdiction, every share- ascertainment of parties' awareness of the holder is deemed to be aware of that clause usage are somewhat irrelevant, since Article and actually to consent to the assignment of 17 creates an actual presumption of aware- jurisdiction for which it provides if the stat- ness, which does not, by hypothesis, need to utes arc lodged in a place to which the share- be verified. holder may have access, such as the scat of the company, or arc contained in a public register.' 7S

148. The first of these questions is the twelfth question, which 'involves ascertaining whether the party concerned was or ought to have 151. The reference to the lodging of com- been aware of the usage, other than with pany statutes in a place accessible to the regard to the condition set forth in paragraph shareholders, or their mention in a public 5, above, as regards the bill of lading itself, register, is easily explained in the circum- which contained numerous clauses appearing on the reverse (paragraph 2, above)'. stances of the case in point, where the share- holders, independently of the mode of acqui- sition of the shares, could have seen the clause at issue invoked against them.

149. Besides the second question, to which it also refers, 77 the fifth question 'concerns the form in which such consistent practice is publicised: must the form of bill of lading in 152. In referring to usages, Article 17 cannot, which the jurisdiction clause appears to be however, be read as meaning that, in order lodged at a particular office (trade association, for a given usage to be taken into account, it chamber of commerce, port authorities, and systematically requires publicity, in a written so on) for consultation or made public in form, of this practice regularly followed in some other way?' the area at issue, within associations or spe- cialised bodies.

154. However any such publicity can be no more than a means by which to prove the existence of a usage. As it is, the Convention does not place any limitation on the means of proof that may be put forward in order to establish the existence of a usage. It is, more- over, self-evident that the reference of the 158. However, even so understood, this ques- invoked usage in such lists can facilitate proof tion seems to be referring to the law appli- of its existence. cable in the present case by virtue of the dis- puted clause, which stipulates that: 'The contract evidenced by this Bill of Lading shall be governed by English Law ...'. so If this is the case, this aspect of the dispute cannot be resolved on the basis of the Convention, which is not designed to resolve conflicts of law. It is for the national court to determine whether, by virtue of the applicable law, the fact that 155. The twelfth question is also related to a the application of English law designated by question of proof, outside the scope of Article the clause amounts to a clause excluding or 17, which is for the national court alone, on limiting the liability of the carrier would sug- the basis of the applicable law, to resolve. gest that the initial carrier could not have wished to agree to it.

156. It remains for me to examine the sixth question, which 'concerns the validity of the clause, even where, by virtue of the substan- 159. In response to this question, I conclude, tive rules applicable in the chosen court, it therefore, that the Convention is not appli- takes the form of a clause exempting the car- cable for the purpose of resolving problems rier from, or limiting, his liability.' relating to the conflict of laws.

(2) Article 17, cited above, is to be interpreted as meaning that the enforceability of a clause conferring jurisdiction against parties who, under the applicable national law, in acquiring the bill of lading, have succeeded to the rights and obligations of the original parties, is subject to the validity of the said clause in the relationship between those original parties, which presupposes their con- sent. This consent is presumed to exist where the reference to such a clause is in a form accepted by usages in the branch of international trade or commerce in question, and the same parties are, or ought to be aware of, those usages.

(3) It is for the national court to ascertain the existence of such a usage as well as awareness of it by the contracting parties. The reference to a clause conferring jurisdiction, inserted, without standing out prominently, amongst other clauses of which it forms part, on the reverse side of a bill of lading pre-printed in English, where only the face is signed, is a form according with usages in the branch of international carriage by sea of consignments of fruit, if such a refer- ence constitutes a practice generally followed by contracting parties operating in the branch of international trade or commerce in question when concluding contracts of the same type. The fact that such a practice, if it constitutes a usage within the meaning of Article 17, is contested is not such as to cause it to cease

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to constitute a usage. The usage to which reference is so made cannot be affected by the application of contrary provisions of national law.

However, in the light of the insertion into the new wording of the provision of the reference to usage, which is prescriptive (and thus unconnected to the will of the parties, at least so far as specifically concerns a particular contract), the question arises whether the requirement of (actual) knowledge, or of lack of awareness arising out of negligent and inexcusable ignorance, is sufficient in view of the consistent incorporation (in all agreements similar to that in issue) of the jurisdiction clause. The question arises, in other words, whether it is any

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longer necessary to ascertain the will of the parties, despite the fact that Article 17 uses the word "concluded" [in the Italian version], which implies an expres- sion of will and thus "commercial" usage (customary clauses).

2. The second question concerns the meaning of the expression "form which accords". The first aspect concerns the way in which the clause appears, that is whether it must necessarily be in writing signed by the party who has drawn it up and who has therefore expressed the intention of relying upon it —• for example — by signing the bill of lading referring specifically to a clause which in turn refers to an agreement conferring exclusive jurisdiction, even in the absence of the signature of the other party (the shipper).

The second aspect consists in establishing whether it is necessary for the juris- diction clause to stand out prominently on its own within the contract as a whole, or whether it is sufficient (and therefore of no consequence as regards the validity of the clause) for it to be inserted amongst numerous other clauses drawn up in order to regulate the contract of carriage in every respect.

5. The fifth question concerns the form in which such consistent practice is pub- licised: must the form of bill of lading in which the jurisdiction clause appears be lodged at a particular office (trade association, chamber of commerce, port authorities, and so on) for consultation or made public in some other way?

6. The sixth question concerns the validity of the clause, even where, by virtue of the substantive rules applicable in the chosen court, it takes the form of a clause exempting the carrier from, or limiting, his liability.

7. The seventh question is concerned with whether the court (other than the chosen court) which has been called upon to assess the validity of the clause may examine the reasons for it, that is to say, the intention of the carrier in the choice of court made, as distinct from the court which would have had jurisdic- tion according to the usual criteria laid down in the Brussels Convention or by the lex fori.

8. The eighth question consists in ascertaining whether the fact that many ship- pers and/or endorsees of bills of lading have challenged the validity of the clause by bringing an action before a court other than that designated by the clause itself is indicative of the fact that usage regarding the insertion of the clause in forms has not become well established.

9. The ninth question consists in ascertaining whether the usage must exist in all the countries of the European Community or whether the expression "inter- national trade or commerce" is intended to mean that it is sufficient for the usage to be practised in those countries which, in the context of international trade or commerce, have traditionally played a prominent role.

14. The fourteenth question is concerned with whether the phrase "ought to have been aware" refers to a criterion of good faith and honesty when a particular contract was drawn up or to a criterion of ordinary care on the part of indi- viduals who must be fully informed of current practices in international trade, for the purposes of paragraph 9, above.'

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