C-387/98

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I I — The Brussels Convention 6. Persons may be sued in other Contract- ing States only in accordance with the provisions of Sections 2 to 6 (Article 3). 3 Article 5(1), which is the provision referred to by the national court, provides that contractual claims are to be brought in the court for the place of performance of the obligation in question. Section 6 (Arti- Convention on Jurisdiction and the Enfor- cles 17 and 18), which concerns the pro- cement of Judgments in Civil and Com- rogation of jurisdiction, applies to the mercial Matters ('the Convention') 1 questions relevant in this case.

4. Under Article 5 of the Protocol on the 7. The first paragraph of Article 17, which Interpretation of the Convention, the Court is relevant here, reads as follows: of Justice has jurisdiction to give rulings on the interpretation of the Convention by way of preliminary ruling.

'If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to 5. With regard to the general scheme of the settle any disputes which have arisen or Convention, it should first be observed that which may arise in connection with a it provides, as the normal rule, that persons particular legal relationship, that court or domiciled in a Contracting State are to be those courts shall have exclusive jurisdic- sued in the courts of that State (Article 2). tion. Such an agreement conferring juris- Under Article 53, 2the seat of a company diction shall be either: or other legal person is treated as its domicile.

III — Facts

(c) in international trade or commerce, in a form which accords with a usage of 10. In 1991 several consignments of which the parties are or ought to have groundnut kernels were shipped by a been aware and which in such trade or Russian vessel from China to the Nether- commerce is widely known to, and lands. This was done on the basis of regularly observed by, parties to con- contracts of carriage concluded with the tracts of the type involved in the shipper by Coreck Maritime GmbH of particular trade or commerce con- Hamburg ('Coreck' or 'the plaintiff') as cerned.' time charterer of the vessel. In respect of the carriage of the goods Coreck issued a number of Conlinebill bills of lading in English, which included the following clauses:

'3. Jurisdiction

8. The Convention has been amended sev- Any dispute arising under this Bill of eral times, in each case in connection with Lading shall be decided in the country the accession of new Contracting States. In where the carrier has his principal place of 1978, for example, in addition to the possibility of making an agreement confer- ring jurisdiction 'in writing' or 'evidenced 4 — See the Opinion of Advocate General Tesauro in Case in writing', the further possibility set out C-106/95 MSC [1997] ECR I-911, paragraph 23. 5 — See the Schlosser Report, cited in paragraph 23 et seq. of the under (c) was added. Opinion in Case C-106/95 (cited in footnote 4).

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13. Coreck submitted that the Rechtbank should decline jurisdiction by way of an interlocutory judgment. However, the court found that it did have jurisdiction by way of an interlocutory judgment of 24 Febru- It is further understood and agreed that as ary 1995. Coreck appealed to the Gerechts- the Line, Company or Agents who has [sic] executed this Bill of Lading for and on behalf of the Master is not a principal in the 6 — It is not always clear, as in the plaintiff's pleading, whether transaction, said Line, Company or Agents the submissions relate to all the defendants or only to Handelsveem. For reasons of clarity, it will not be stated shall not be under any liability arising out below whether reference is being made to all the defendants or only to the first defendant. of the contract of carriage, or as Carrier or 7 — Sevrybkholodoflot (Murmansk), also trading under the bailee of the goods.' name Sevryba.

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IV — The questions referred

(b) that — generally or now, in con- sequence of or in connection with 15. The Hoge Raad has referred the fol- the progressive relaxation of the lowing questions to the Court for a pre- rules in Article 17 of the Brussels liminary ruling: Convention, 8 together with the case-law of the Court of Justice concerning the circumstances in which such a clause is to be regarded as having been validly concluded — in order for such a '(1) Must the first sentence of Article 17 of the Brussels Convention (in particular, 8 — This no doubt refers to the simplification of the formal the words "have agreed"), read in requirements referred to in paragraph 9 of this Opinion.

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clause to be valid, it is enough that (3) If the answer to Question 2 is in the the parties themselves clearly affirmative: know, on the basis (inter alia) of the (other) circumstances of the case, which court is to have juris- diction to settle such disputes?

(a) Does the fact that the jurisdiction clause contained in the bill of lading must be regarded as valid (2) Does Article 17 of the Brussels Con- as between the carrier and the vention also govern the validity, as shipper mean that it is also binding against a third party holding a bill of on any third party holding the bill lading, of a clause which specifies as of lading, or is that the position the forum having jurisdiction to settle only as regards a third party who, disputes "under this Bill of Lading" the upon acquiring the bill of lading, courts of the place where the carrier succeeds by virtue of the applicable has his "principal place of business" national law to the shipper's rights and which is laid down in a bill of and obligations? lading also containing an "identity of carrier" clause, that bill of lading being issued for the purposes of the carriage of the goods, where

sufficiently clear to him that the ted', which goes back to the Tilly Russ clause in question is valid? judgment, 9does not mean, as a further elaboration on the words 'have agreed' in Article 17 itself, that the competent court must be immediately identifiable from the wording of the jurisdiction clause or be expressly named in it. Rather, going beyond (4) If the answer to Question 3(a) is as just the wording, it is necessary to take into suggested, which national law governs account what was clearly agreed by the the decision as to whether the third parties or what their established practice party, upon acquiring the bill of lading, was. Trade usage in the sector in question succeeded to the shipper's rights and also plays a part. obligations, and what is the position if the national law in question has not hitherto provided, either in its legisla- tion or in its case-law, an answer to the question whether the third party, upon acquiring the bill of lading, succeeds to the shipper's rights and obligations?'

17. As the defendants wrote to the plaintiff several times, every letter having been addressed to Hamburg as the plaintiff's principal place of business and the plaintiff being described in the letters as the carrier, the defendants could have been in no doubt V — Answers to the questions referred whatever as to the carrier's identity or its principal place of business. The wording of the bills of lading also conforms to the standard bill of lading drawn up in 1950 and amended in 1978 by BIMCO, the Baltic and International Maritime Council, 1. The first question which the plaintiff had previously used 77 times in dealings with Handelsveem.

court to be designated absolutely unam- 21. In the opinion of the Netherlands biguously in the jurisdiction clause. 10 Government, for a jurisdiction clause to be valid it is not sufficient that it is clear only to the parties themselves, particularly on the basis of the circumstances of the case, which court is to have jurisdiction. The Netherlands Government also exam- ines the individual versions of Article 17 and concludes that none of the modifica- tions introduced for concluding such agree- 19. The defendant contends, on the other ments led to any relaxation of the formal hand, that question one should be requirements. It is for the national court to answered in accordance with variant 1(a) decide whether it has jurisdiction or not. of the order for reference, that is to say, the jurisdiction clause must be worded in such a way as to enable anyone to ascertain clearly which court has jurisdiction. The defendant says that, according to the settled case law of the Court of Justice, Article 17 requires not only that there actually be consensus between the parties as to the designation of the court with jurisdiction, but also that this be clearly and precisely 22. In this connection, the Netherlands apparent to third parties. Government considers that the question whether the national court should be guided solely by the wording of the agree- ment conferring jurisdiction or whether it should take other circumstances of the case into account depends on whether the agreement was concluded according to the method in Article 17(a), (b) or (c). 20. According to the defendant, the choice of forum entails a particular need for legal certainty which the successive versions of Article 17 did not call into question. The only purpose of the adjustments made by the accession conventions of 9 October 1978 and 26 May 1989 was to simplify the conclusion of agreements conferring jurisdiction in international trade, but the 23. In the opinion of the Italian Govern- adjustments had nothing to do with the ment, for an agreement conferring jurisdic- requirements as to clarity in the wording of tion to be valid, it is an essential condition such agreements. that the competent court can be ascertained clearly and precisely. This requirement must apply not only as between the parties 10 — These are the judgments in Case 784/79 Porta-Leasing [1980] ECR 1517; Case 201/82 Gerling [1983] who originally concluded the agreement, ECR 2503; Case 48/84 Spitzley [1985] ECR 787; Case 22/85 Anterist [1986] ECR 1951, and Case but also in relation to all persons against C-214/89 Powell Duffryn [1992] ECR I-1745. whom it is to be effective.

25. If the jurisdiction clause provides that disputes are to be dealt with in the country where the carrier has his principal place of business, it is for the national court to establish who is the carrier and whether he 28. The wording used in the question has his principal place of business in a before the Court, referring to the case law Contracting State. to the effect that 'the purpose of Article 17 is to ensure that the [consent of the] parties... is clearly and precisely demon- strated' can be found in, for example, the Tilly Russ judgment. 1 1One of the ques- tions in that case was whether such an 26. The Commission considers it sufficient agreement could be regarded as valid even if the court identified can be established if it was not signed. The Court referred to from the clause and the particular circum- its earlier judgments which stated that the stances of the case, provided that it is clear conditions for the validity of jurisdiction that there was actual consensus or that it clauses under Article 17 are to be narrowly could be deemed to exist between the construed 'since the purpose of Article 17 is parties. to ensure that the parties have actually consented to such a clause, which derogates from the ordinary jurisdiction rules laid down in Articles 2, 5 and 6 of the Conven- tion, and that their consent is clearly and precisely demonstrated'. 12 In the MSG 27. The case law already cited more than judgment 13 the Court confirmed that eon- 1 1 — See the judgment in Case 71/83, cited in footnote 9, once, to the effect that consent must be paragraph 14. See also the judgments in Case 24/76 clearly and precisely demonstrated, merely Estasis Salotti [1976] ECR 1831, paragraph 7; Case 25/76 requires the agreement to show that there Segoura [1976] ECR 1 8 5 1 , paragraph 6, and was consensus between the parties with Case 784/79, cited in footnote 10, paragraph 5. In some regard to the court which was to have cases the wording in question varies slightly. jurisdiction. On the other hand, Article 17 does not require the wording of the agree- 12 — See the Tilly Russ judgment, cited in footnote 9, para- graph 14. ment itself to indicate which court is to 13 — Cited in footnote 4, paragraph 17.

sensus between the parties was still neces- 30. The wording of Article 17 does not sary with regard to the new wording of gives rise to any requirements as to the Article 17, which made an additional refer- manner in which jurisdiction clauses are ence to commercial practice. Consequently, formulated. Nor does the protective pur- in spite of such relaxation of the formal pose of Article 17 require that the compe- requirements, Article 17 still aims to ensure tent court be apparent from the wording that there is real consent between the alone of the jurisdiction clause. As the parties. As, by reason of the amendments Court found in the MSG judgment, the to Article 17, writing is no longer neces- protective purpose consists in protecting sary, such consent can sometimes be pre- the weaker party by preventing jurisdiction sumed to exist. 14 This decision was fol- clauses from being incorporated in a con- lowed in the Castelletti judgment. 15 tract by one party and going unnoticed. However, where such a clause is actually agreed by the parties, it may still be necessary to protect the weaker party if the clause is not worded sufficiently clearly for the weaker party to be able to rely on it. Clear wording does not, however, mean that it must be possible to identify the competent court from the actual words. A clause which can be amplified by means of 29. It is true that the observations in the objective criteria is also sufficiently specific. last-mentioned case relate to the problem Then it will be for the national court to of whether there was consent at all and, if determine, according to those criteria, so, the date when it could be presumed to which court has jurisdiction. have come into existence. In the present case it is common ground that the parties agreed, in accordance with Article 17, that disputes arising from the bill of lading should be settled in, and according to the law of, the country where the carrier has his principal place of business so that, under Article 2 of the Convention, the courts of that place would have jurisdic- tion. The issue in the present case is rather 31. Objective criteria enable third parties, the degree of precision with which such an particularly the national court before which agreement must be worded, which is dif- the matter is brought, to establish clearly ferent from the question whether consent which court is supposed to have jurisdic- actually exists. In this connection it may be tion. Therefore it may not be sufficient that asked whether the case-law cited above can the parties alone can identify the court in be extended to this problem, which would question on the basis of the particular mean that 'clarity and precision' would circumstances of the case. The clause must also be required in the wording of jurisdic- be worded in such a way that the national tion clauses. court before which the matter is brought and whose jurisdiction may be contested can determine clearly whether it has jur- 14 — See the MSG judgment, cited in footnote 4, paragraphs 17 and 19. isdiction or not. It will very probably be 15 — Case C-159/97 [1999] ECR I-1597, paragraph 19 et seq. necessary for it to carry out a further

32. Accordingly, in several cases where the jurisdiction clause merely indicated that the court for the principal place of business of a 34. The jurisdiction clause in the present company was to have jurisdiction, the case refers to the 'principal place of busi- Court found that the clause was not in ness', according to the original English, any event invalid on the ground that it was that is, the undertaking's principal office. It not sufficiently precise in conferring juris- should be possible for the national court to diction by means of a reference to the determine this clearly, if necessary by principal place of business (or domicile). 17 referring to the plaintiff's documents. As the Commission correctly observes, such a clause cannot be invalid on the ground that the full address is not given. The national court can easily ascertain the address, so that on the basis of that objective information, the competent court can be determined precisely.

lading in question. The situation would no 37. In addition, the factual findings of the doubt be different if the name Sevryba also national court, which are binding on the appeared on them, in which case the Court of Justice and which cannot now be jurisdiction clause would probably be challenged, show that the plaintiff's princi- imprecise. However, it is for the national pal place of business is in Hamburg and court to establish whether it is clear from that the plaintiff was the carrier and there- the bill of lading who, for the purposes of fore a party to the agreement conferring the bill of lading (and this is the only jurisdiction. question which matters), is to be deemed the carrier. If that cannot be determined or if there is more than one carrier for the purposes of the bill of lading, the clause must indeed be regarded as invalid. 38. The defendants assume that Article 17 cannot apply in the present case because it has not been shown that one of the requirements, i.e. that one of the parties be domiciled in a Contracting state, is fulfilled.

2. The second question

39. The Netherlands Government consid- ers that the important element with regard to Article 17 is the relationship between the shipper and the carrier. Where a contract includes a jurisdiction clause, if the shipper and one of the possible carriers are not The parties' submissions domiciled in a Contracting State, it is necessary to establish whether at least one of contracting parties is domiciled in a Contracting State at the time when the matter is brought before a court.

43. The second question concerns the requirements laid down by the first sen- tence of the first paragraph of Article 17. These must be fulfilled if Article 17 is to apply at all. Although the national court refers here again to the relationship with 41. The Commission maintains that, by its the third-party holder of the bill of lading, second question, the national court is this only falls to be considered in relation to asking whether Article 17 is applicable the reply to the third question. However, it only if at least one of the parties has its may be observed at this point that a principal place of business in the Commu- jurisdiction clause can be relied on against nity, or whether it is sufficient if one of the a third-party holder of the bill of lading parties is domiciled in a Contracting State. only if the clause is valid. According to the In the Commission's opinion, there appears Court's case law, 19 for this purpose it is the to be no reason why the applicability of relationship between the original parties, Article 17 should be confined to cases not the relationship with the third-party where one party has its principal place of holder, which is decisive. In this respect, the business in the Community. The only first sentence of the first paragraph of question which arises is whether Article 17 Article 17 requires at least one of the applies at all. original parties who concluded the agree- ment conferring jurisdiction to be domi- ciled in a Contracting State, and, under Article 53, the seat of companies and other legal persons is treated as their domicile. Under Article 53, it is for the national court to decide where the seat of a company is situated. 42. The Commission adds that it is clear from the second paragraph of Article 17 that the question whether one of the parties is domiciled in a Contracting State is of no great importance, because under that pro- vision, parties from non-Contracting States 44. The question whether the seat of a may also enter into an agreement confer- company is situated in a Contracting State ring jurisdiction upon a court of a Con- is decisive for the (theoretical) validity of a tracting State. 18 jurisdiction clause, but it must be distin- guished from the question of the location of the principal place of business. The latter is 18 — The second paragraph of Article 17 reads as follows: important for establishing precisely which 'Where such an agreement is concluded by parties, none of whom is domiciled in a Contracting State, the courts of other Contracting States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction'. 19 — See the judgment in Case 71/83, cited in footnote 9.

46. The details necessary for ascertaining the principal place of business follow from the reply to the first question. If it is found that there is a place of business or an 45. If, after considering the first question, establishment, but not the principal place the national court reaches the conclusion of business, in a Contracting State, the first that the plaintiff must be deemed the requirement of the first paragraph of Arti- carrier for the purpose of the bill of lading cle 17 (one of the parties to be domiciled in and that the jurisdiction clause is therefore a Contracting State) would be fulfilled. On worded sufficiently precisely, it must then the other hand, the second requirement determine whether the plaintiff has a place (designation of a court in a Contracting of business in a Contracting State. How- State) would not be fulfilled. However, as ever, the jurisdiction clause cannot be the reply to the first question shows, it invalidated by the fact that the carrier's should be possible to determine, by refer- principal place of business may not be in a ence to objective criteria, that the plaintiff's Contracting State. For the agreement con- principal place of business is situated in a ferring jurisdiction to be valid under the Contracting State.

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50. With regard to the reply to Question 3(b), the defendants submit that the cir- cumstances of the particular case, such as here the special knowledge of the third- party holder or his long-standing business 48. With regard to Question 3(b), the relationship with the carrier, can be of no plaintiff submits that the circumstances of importance in this connection. If it is the particular case may be important for impossible to determine the competent deciding whether the third-party holder is court by reference to a jurisdiction clause, bound by the jurisdiction clause. In this the particular circumstances of the indivi- connection the plaintiff stresses once again dual case should not be taken into account that it had a long-standing and active and the third-party holder can certainly not business relationship with the defendant, be expected to inquire as to those circum- so that the latter must have had far fewer stances. doubts about the bills of lading than any other third-party holder would have had. A third party who accepts such a clause in a bill of lading with full knowledge of all the circumstances cannot rely on Article 17 and plead that the clause is invalid because the protection which Article 17 seeks to 51. In reply to the third question, the confer means not only safeguarding against Netherlands Government, referring to the jurisdiction clauses to which consent has Tilly Russ judgment, states that the not been given, but also promoting com- pliance with clauses which have been 20 — See the judgment in Case 71/83, cited in footnote 9, accepted. paragraph 26.

55. Here the parties rightly refer to the Tilly Russ judgment in which the Court considered the question whether a third- party holder of the bill of lading is bound by the jurisdiction clause. According to that 53. The United Kingdom submits that the judgment '[i]n so far as a jurisdiction clause question whether the consignee succeeds to incorporated in a bill of lading is valid the shipper's rights and obligations depends under Article 17 of the Convention as on the relevant national law to be applied. between the shipper and the carrier, and Whether a third party holding the bill of in so far as a third party, by acquiring the lading who does not succeed to such rights bill of lading, has succeeded to the shipper's and obligations will be bound by the rights and obligations under the relevant jurisdiction clause is also a question gov- national law, the fact of allowing the third erned by national law. The United King- party to remove himself from the compul- dom adds that if the third-party holder does sory jurisdiction provided for in the bill of not succeed to the shipper's rights and lading on the ground that he did not signify obligations, it is difficult to see what rights his consent thereto would be alien to the he can claim under the bill of lading. purpose of Article 17... .

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In fact, in the circumstances outlined jurisdiction clause or whether such consent above, acquisition of the bill of lading may be presumed. Particular circumstances could not confer upon the third party more may at the most be relevant in relation to rights than those attaching to the shipper the question of succession under national under it. The third party holding the bill of law. However, if it is shown that, under the lading thus becomes vested with all the relevant national law, the third party has rights, and at the same time becomes succeeded to all the shipper's rights and subject to all the obligations, mentioned obligations, the particular circumstances of in the bill of lading, including those relating the individual case are immaterial. to the agreement on jurisdiction'. 21

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59. It must therefore be concluded that a carrier, either in writing or evidenced by third-party holder of a bill of lading is writing, on a choice of jurisdiction clause. bound by a jurisdiction clause in the bill of It does not seem to me that the mere lading if the clause is valid as between the presentation by the holder of the bill, who shipper and the carrier, that is to say, the has already purchased the goods, to the original parties, and the third party, by carrier would in itself constitute such an virtue of the relevant national law, suc- agreement or evidence of an agreement for ceeded to the shipper's rights and obliga- the purposes of Article 17.' 24 tions on acquiring the bill of lading.

24 — Opinion in Case 71/83, cited in footnote 9. The Advocate 'If the holder does not stand in the shoes of General did not consider the theories put forward by the Commission (the 'theory of assignment', the 'theory of the original shipper under the applicable implied agreement' and the 'theory of the clause for the benefit of third parties', p. 2427) in any further detail. national law, then a new agreement has to 25 — See the judgment in Case 71/83, cited in footnote 9, be found between the holder and the paragraph 24 et seq.

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the shipper's rights and obligations is not holder of a bill of lading has succeeded to automatically bound by the jurisdiction the shipper's rights and obligations must be clause. decided according to the law of the port of discharge.

67. On the second sub-question, the defen- 4. The fourth question dants contend that, according to the Tilly Russ judgment, the question of succession must be determined by reference to the applicable national law. If that law pro- vides no answer, it is not possible to The parties' submissions determine whether the third-party holder has succeeded to the shipper's rights and obligations. It is therefore impossible to determine whether the third-party holder is bound by the jurisdiction clause by virtue of Article 17. According to the Tilly Russ 65. The plaintiff considers that, if Question judgment, the third-party holder of the bill 3(a) is determined by reference to national of lading will exceptionally, subject to law, the question whether the third-party certain conditions, be bound by the juris- diction clause. The defendant adds that if it is not clear whether this is an exceptional 26 — See the judgment in Case C-159/97, cited in footnote 15, paragraph 42. case of that kind, the general principle must

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apply and no exception will be allowed. 71. With regard to the second part of the This conclusion is also compatible with the question, the United Kingdom considers consideration that the risk of ambiguity as that it is not for the Court to fill lacunae in to the court with competence under the the substantive law of Contracting States, jurisdiction clause should be borne by the particularly as the question is hypothetical party responsible for the issue of the bill of in nature. lading.

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74. The question as to what the position VI — Costs would be if neither the legislation nor the case law of the national legal system concerned provide an answer to the ques- tion whether the third party succeeds to the 75. The costs of the Netherlands and shipper's rights and obligations is purely Italian Governments, the Government of hypothetical. Furthermore, it relates to the the United Kingdom and the Commission, situation where there is a lacuna in national which have submitted observations to the law. It is not for the Court of Justice to Court, are not recoverable. As these pro- determine how that lacuna might or should ceedings are, for the parties to the main be filled because the question has no direct proceedings, a step in the proceedings connection with interpretation of the Brus- pending before the national court, the sels Convention. decision on costs is a matter for that court.

V I I — Conclusion

76. I therefore propose that the following replies be given to the questions from the national court:

(1) The first paragraph of Article 17 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters ('the Brussels Convention') must be interpreted as meaning that, for an agreement conferring jurisdiction to be valid, it is not necessary to be able to identify by name, from the wording of the agreement alone, the court designated as having jurisdiction. On the contrary, it is sufficient if not only the parties, but also third parties and the court before which the matter is brought, can determine the matter on the basis of objective criteria laid down in the jurisdiction clause.

(4) It is for the national court to decide which national law is to be applied in order to determine whether the third-party holder of a bill of lading has succeeded to the shipper's rights and obligations. The same is true of the question as to which law is applicable where national law does not resolve the question whether the third-party holder has succeeded to the shipper's rights and obligations.

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