JUDGMENT OF 19. 6. 1984 — CASE 71/83

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 therelevant national law, the third party,
upon acquiring the bill of lading,succeeded to the shipper's rights andobligations.

In Case 7 1 / 8 3 ,R E F E R E N C E t o the C o u r t u n d e r Article 1 of the P r o t o c o l of 3 J u n e 1971
on the Interpretation by the C o u r t of Justice of the C o n v e n t i o n of
27 September 1968 on Jurisdiction and the E n f o r c e m e n t of J u d g m e n t s in
Civil and Commercial M a t t e r s from the H o f van Cassatie [ C o u r t of
Cassation], Belgium, for a preliminary ruling in the action p e n d i n g beforet h a t court between

1. PARTENREEDEREI MS TILLY R U S S ,2. E R N E S T Russ,

and

1.

NV

H A V E N - & VERVOERBEDRIJF N O V A ,2.

NVGOEMINNE H O U T ,on the interpretation of the first p a r a g r a p h of Article 17 of the C o n v e n t i o nof 27 September 1968,

THE COURT

composedof:
Lord
Mackenzie
Stuart,President, T .
Koopmans,
K. Bahlmann and Y. G a l m o t (Presidents of C h a m b e r s ) , P. Pescatore,
A. O'Keeffe, G. Bosco, O . D u e and U . Everling, J u d g e s ,Advocate G e n e r a l : Sir G o r d o n Slynn
Registrar: J. A. P o m p e , D e p u t y Registrar

gives the following
2418

TILLY RUSS / NOVAJUDGMENT
Facts and Issues
The facts of the case, the course of
the procedure and the observations submitted pursuant to Article 20 of theProtocol on the Statute of the Court ofJustice of the EEC may be summarized
as follows:

I — F a c t s and w r i t t e n p r o c e d u r e

The Belgian limited company NV
Goeminne Hout, bought a quantity ofwood from an American firm. The
German shipowner Partenreederei ms
Tilly Russ was commissioned to carry
the goods by sea from Toronto to
Antwerp. The sea carriage was coveredby bills of lading CT 108 and CT 118 of
16 August 1976 signed on behalf of thecarrier by its American agent. When the
cargo was unloaded at Antwerp on 7
September 1976, two lots were damaged
and 10 planks were missing.
Goeminne Hout and its agent, NV,
Haven- & Vervoerbedrijf Nova, claimed
304 US dollars by way of damage, inproceedings before the Rechtbank van
Koophandel[Commercial
Court],
Antwerp. However, Partenreederei ms
Tilly Russ and Ernest Russ objected tothe jurisdiction of the Antwerp court on
the ground that the following clauseappeared on the back of each of the billsof lading: "4 (e): Any dispute arisingunder this bill of lading shall be decided
by the Hamburg court." It was therefore
argued that the Antwerp court had no
jurisdiction in accordance with Article 17of the Convention of 27 September 1968.

Nevertheless, by judgment of 31 October
1978 the latter held that it had
jurisdiction and gave judgment in favourof the plaintiffs.

On 7 October 1981 the Hof van Beroep[Court of Appeal], Antwerp, upheld that
judgment. Partenreederei ms Tilly Russand Ernest Russ, then lodged an appeal
in cassation on 1 March 1982. The Hofvan Cassatie, considering that the
ground of appeal relied on raised aquestion concerning the interpretation of
Article 17 of the Convention of 27
September 1968, decided to stay theproceedings until the Court of Justice
had given a preliminary ruling on thefollowing question :"Can the bill of lading issued by the
carrier to the shipper be considered,having regard to the relevant generally
accepted practices, to be an 'agreementin writing' or an 'agreement evidenced
by writing' between the parties within
the meaning of Article 17 of theConvention of 27 September 1968 on
Jurisdiction and the Enforcement of
Judgments in Civil and Commercial
Matters and, if so, does that also apply
in relation to a third party holding thebill of lading?"

The judgment of the Hof van Cassatie
was received at the Court Registry on
28 April 1983.

In accordance with Article 5 (1) of theProtocol of 3 June 1971 and Article 202419

JUDGMENT OF 19. 6. 1984 — CASE 71/83

of the Protocol on the Statute of the
Court of Justice of the EEC, written
observations were submitted on 5 July
1983 by the Commission of theEuropean Communities, represented by
Mr Zimmermann, its Principal Legal
Adviser, acting as Agent, assisted by Mr
Van Houtte of the Brussels Bar, on 14
July 1983 by Haven- & Vervoerbedrijf
Nova and Goeminne Hout, respondents
in the main action, represented by Mr
Wijffels of the Antwerp Bar, on 9 August
1983 by the Government of the Italian
Republic, represented by Mr Fiumara,
Avvocato dello Stato, acting as Agent,and on 11 August 1983 by the United
Kingdom, represented by M r Howes of
the Treasury Solicitor's Department,
acting as Agent.

Upon hearing the report of the JudgeRapporteur and the views of the
Advocate General, the Court decided toopen the oral procedure without any
preliminary inquiry.

II — W r i t t e nobservations
m i t t e d by t h e C o u r tsub­(a) Observations of the respondents in themain action

The respondents in the main action refer
first of all to the previous decisionsof the Court on Article 17 of theConvention of 27 September 1968, inparticular the judgments of 14 December
1976 in Case 24/76 {Salotti ν RÜWA,[1976] ECR 1831), and Case 25/76(Segoura ν Bonakdarian, [1976] ECR
1851), and to the Opinions delivered by
Mr Advocate General Capotorti in thosecases. Those cases imply that " a person
trading on the basis of general conditions
2420

is not entitled to bind the opposite party
by a jurisdiction clause included in thoseconditions, where the opposite party has
not confirmed in writing that it agrees
to that clause." Therefore a jurisdiction
clause cannot be effective without anagreement in writing or confirmation inwriting of an agreement between theparties to the dispute. In this regard, therespondents stress that in this case theparties to the dispute are the assignee ofthe bill of lading and the carrier.

By derogation from the rule set out
above, unwritten acceptance of theclause is admitted by the Court where
the parties' agreement comes within theframework of a continuing business
relationship, since in that case it would
be contrary to good faith for therecipient of the confirmation to deny theexistence of a jurisdiction agreement,even though he had given no acceptancein writing. In adopting that approach,the Court was resorting to the theory of
the abuse of rights in contractual
matters: thus it would be an abuse to
rely upon the absence of writing indenying an obvious agreement.

As regards the amendment of Article 17
effected by the Convention of 9 October
1978 on the accession of the Kingdomof Denmark, Ireland and the United
Kingdom to the Convention on Juris­
diction and the Enforcement of Judg­
ments in Civil and Commercial Mattersand to the Protocol on its Interpretationby the Court of Justice (Official Journal
1978, L 304, p. 1), the respondents in themain action consider that it has no effecton the answer to the question submitted
to the Court for a preliminary ruling on
the ground that it is not yet in force.
However, the relaxation introduced byit, namely the fact that in international
trade or commerce a jurisdiction agree­
ment must be "in a form which accords

TILLY RUSS / NOVA

with practices in that trade or commerceof which the parties are or ought to havebeen aware", in no way derogates from"the absolute requirement that it must be
proved that a consensus existed on theapplicability of the jurisdiction clauseforming part of the general conditions".

Considering next the question of thelegal nature of a bill of lading, therespondents in the main action submitthat it is not a contract of carriage.
Indeed in their view, "the contractof carriage arises when the carrier
undertakes to carry certain goods by sea
and the shipper agrees to pay a certain
freight in that respect", that is to sayat the time of reservation, which is
generally by telex. At the time when theconditions of carriage are fixed, there isnever any discussion of the jurisdiction
clauses which may subsequently appear
in the bill of lading.

After the contract of carriage has beenconcluded, the shipper is requested by
the loading broker to deliver his goods
and receives a shipping note in exchange.

It is only when the goods which havebeen delivered and brought alongside theship by the shipper are loaded on board
ship and a mate's receipt — a document
by which the ship's officers acknowledge
that the goods have been received on
board — is issued by the first officer tothe shipper that the loading broker will
issue a "shipped" bill of lading to theshipper.

In conclusion, according to the respondents in the main action, "a bill of
lading is merely a receipt for the goods
between the shipper and the shipowner
and a confirmation of the simple ob-ligation to carry the agreed goods anddeliver them to the agreed destination".
That also follows from decided cases,
national law and legal writing.

Nor is the bill of lading evidence of theterms of the contract of carnage, unlessit has been formally signed by theshipper to indicate his agreement, whichis rarely the case. Moreover, theexistence of conditions printed on theback of the bill of lading, including thejurisdiction clause, is explained by thefact that it is impossible for the shipper
to question or require to be amended
conditions printed on bills of lading
which were not contemplated at the timeof the conclusion of the contract ofcarriage. The shipper cannot refuse suchconditions, for the simple reason that by
the time the bill of lading is issued thegoods are already loaded or are at leastin the possession of the carrier and "noshipper can afford to have his goods
unloaded and to delay the ship because
he refuses a bill of lading containing ajurisdiction clause which had not been
agreed on".

That situation is merely the extension ofa historical reality, in which shipowners
have conferred upon themselves as manyrights and exemptions from liability as
possible. In support of that view, therespondents in the main action refer tothe article by Georges van Bladel,entitled "Connaissements et Règles de La
Haye", which states that "the bill of
ladingbecamea'documentofirresponsibility', of no practical value,
since the only remaining obligation on
the captain was to obtain payment of thefreight", and "the legal warranty givenbythecarrierhadcompletely
disappeared".

The respondents in the main action thenpoint out that all bills of lading are2421

JUDGMENT OF 19. 6. 1984 — CASE 71/83

divided into two parts : one in blank, on
which the contract of carriage will be
reproduced, and one printed, containing
the clauses printed unilaterally inadvance by the carrier. The only partwhich has any evidential value is the partin blank, which according to Article III(4) of the Hague Rules in only prima
facie evidence of receipt by the carrier ofthe goods. The respondents conclude
from that that the bill of lading does notconstitute "proof that the conditions
printed in advance thereon reproduce theconsensus existing between the shipper
and the carrier at the time when thecontract was made".

Moreover, according to the respondents
in the main action, there is no generalpractice in international maritime trade
whereby conditions printed in advanceon the bill of lading constitute an oral
agreement confirmed in writing between
the shipper and the carrier. Moreover,those clauses have always been a subjectof argument and litigation between theparties concerned, as is apparent fromwhat the respondents regard as theunanimous opinion expressed in legal
writings on the subject and from anumber of cases.

The respondents in the main action
consider next the question whether ajurisdiction clause printed in advance ina bill of lading may be regarded as anagreement in writing between the carrier
and the assignee of the bill of lading.
They point out in that regard that since
the bill of lading is freely negotiable
there is often no direct relationshipbetween the shipper and the assignee
who accepts delivery of the goods. Thatmeans that the condition laid down in
Article 17 of the Convention of 17
September 1968 on the need for a
2422

consensus ad idem between the parties tothe dispute is not met, since the assignee
will never have had any opportunity ofgiving his consent to any jurisdiction
clause whatsoever. Moreover, it cannot
seriously be maintained that there isany permanent relationship between theassignee of a bill of lading and thecarrier; the only commercial relationshipinvolving the delivery of the bill of ladingis that between the buyer and the seller
from whom the buyer received the bill of
lading. Under those circumstances, there
is no relationship between the assignee ofthe bill of lading and the carrier of sucha kind as to warrant the assumption thatas regards clauses printed in advance on
bills of lading, it would be contrary togood faith for the assignee to deny theexistence of a proved consensus between
himself and the carrier.

Examining next the bill of lading inquestion, the respondents in the main
action maintain that it was drawn up
after the conclusion of the contract ofcarriage, after the loading of the goods
in a very distant port and without being
signed by the shipper. Such a document
therefore cannot constitute evidence thatthe jurisdiction clause was specificallyagreed to by the shipper. A fortiori, theassignee could not in any event be boundby such a clause.

In addition, the jurisdiction clause inquestion does not provide for the
mandatory application by the foreign
court of Article 91 of the Belgian
Maritime Law, which nullifies the legal
protection which the assignee must beable to expect to enjoy. Thus Article 17of the Convention could be misused by
the carrier, since he would be authorized
by means of clauses printed in advanceon the bill of lading to apply to goods

TILLY RUSS / NOVA

consigned to Antwerp provisions which
would be void under Belgian law.
Finally, the respondents in the main
action submit to the Court extracts fromlegal writings from many non-member
countries and concludes from them thatjurisdiction clauses contained in bills of
lading "cannot under any circumstances
be recognized as valid according to
generally accepted usage".

(b) Observations of the Italian
ment

Govern-In relation to the first question, theItalian Government points out that it isclear from previous judgments of the
Court that the purpose of the requirement of writing under Article 17 is
to ensure that the consensus between theparties, who, by a jurisdiction agreement,
depart from the general jurisdiction rules
laid down in Article 2, 5 and 6 of theConvention, is clearly and precisely
demonstrated and has actually beenreached. If such a clause is unequivocal
in content and if the parties were easily
able to have knowledge of it — therelevant findings of fact are clearly to bemade by the national court — it ought tobe regarded as equivalent to theagreement in writing provided for in
Article 17 of the Brussels Convention. In
fact, according to the Italian Government, a bill of lading constitutes a
document of title to the goods andevidence of the contract of carriage. It isissued in two originals: one is signed by
the shipper or his representative; theother is signed by the carrier and isissued to the shipper and is normallytransferable. Thus there is a consensus adidem between the parties and theagreement is signed by each of them.
The second question concerns a situation
exhibiting certain similarities to thatwhich gave rise to the judgment of

14 July 1983 in Case 201/82 (Gerling
Konzern, [1983] ECR 2503). In thatcase, concerning a contract of insurance,
the Court stated that "it is neither the
purpose nor the effect of Article 17 of
the Convention, in imposing a requirement of writing between the parties,
to subject a third party to the samerequirement of writing where the clauseconferring jurisdiction was included forhis benefit and he seeks to rely on it in a
dispute between him and the insurer".
In fact, under such a contract concluded
for the benefit of a third party, theItalian Government observes that thethird party seeking to benefit from thestipulation made in his favour acquires
the rights arising from the contract,
itself, irrespective of any acceptance,
purely by virtue of the stipulationentered into between the parties.
The same solution ought to be adopted
in the case of the assignee of a bill of
lading, since, as from the transfer of thebill to that assignee, the latter may
exercise the rights specified therein andis by the same token subject to the
obligations
and restrictions
arising
therefrom, provided of course that they
are clear and that there is no possibilityof error in the wording of the document
itself.
Consequently, the Italian Government
proposes that the questions referred to
the Court by the Hof van Cassatie,
Belgium, should be answered as follows:"(a) A jurisdiction clause contained in abill of lading may be regarded as
equivalent to an agreement inwriting for the purposes of Article
17 of the Brussels Convention if its
terms are clear, precise and unequivocal.
(b) In so far as the clause is valid
between the parties who adopted it,
2423

JUDGMENT OF 19. 6. 1984 — CASE 71/83

it is also valid as against an assigneeof the bill of lading."(c) Observations of the United Kingdom

The United Kingdom requests that thecase be decided in plenary session.

As regards the first question, the United
Kingdom considers that the view of the
Hof van Beroep, Antwerp, to the effectthat the bill of lading is "essentially adocument intended as a receipt for the
goods to be carried" fails to recognize
the nature and functions of the billof lading in international commerce;
moreover, great damage would be done
to international commerce if all the terms
expressly stated in the bill of lading were
not given full effect, not only as between
the carrier and the original shipper, butalso in relation to third parties to whombills of lading have been assigned.

According to the United Kingdom, a billof lading not only constitutes a receipt
for the goods received by the carrier but
also the contract subject to whose terms
the goods are carried and a document of
title of the goods. The truth of thatstatement is demonstrated by reference
to the International Convention for theUnification of Certain Rules of Law
relating to Bills of Lading, signed at
Brussels on 25 August 1924, andgenerally known as the "Hague Rules",
especially Articles 1 (b), III (c), V andVI.

Unless, in international commerce, a billof lading is treated as containing all theterms of the contract, and full effect is2424

given to them, it cannot fulfil its dual
function"asa document
whose
assignment transfers both the rights andobligations under the contract of carriage and also the title to the goods
which are subject to those terms". Therecannot, in practice, be any scope forsomeadditional
document
which
evidence a more specific agreement
between the parties, such as the specificacceptance of a jurisdiction clause.
Furthermore, there is no logical basis for
distinguishing such a clause in a bill of
lading from other clauses contained
therein. The choice of jurisdiction may
well be an important factor
indetermining the meaning of a number ofother clauses in the bill of lading. Thus,a clause conferring jurisdiction on the
English courts may well be dictated by
the fact that the interpretation given to
specific terms of shipping law by the
English courts is well known in maritime
circles.

The United Kingdom admits that thequestion whether a bill of lading ought
to be categorized as an oral agreement
evidenced in writing rather than as an
actual agreement in writing has not been
resolved beyond dispute in the United
Kingdom. However, that does not affectthe force of the previous argument, since
under Article 17 of the Brussels Convention the two possibilities are valid.
Furthermore, it follows from Article Xof the Hague Rules that a bill of lading
is either an agreement in writing or an
oral agreement evidenced in writing.

Should that interpretation not be
accepted, the United Kingdom brings
to the attention of the Court theamendment introduced by the 1978
Convention, which will, when it comes
into force, put it beyond doubt that a billof lading complies with the formal

TILLY RUSS / NOVA

requirements of Artide 17. In that
context, the United Kingdom further
notes that the question asked expresslyrefers to "the relevant generally accepted
practices".

In relation to the second question, theUnited Kingdom submits first that it is afundamental principle of contract law
that an assignee of a contract takes on
the same conditions as those on which
the assignor held a contract. It follows
from that that if a jurisdiction clausebinds the original parties it must alsobind their successors, especially as a billof lading is freely assignable. As thecarrier plainly cannot be a party to
the transfer of the bill of lading fromone holder to another, a ruling thatjurisdiction clauses in bills of lading do
not bind successive holders would meanthat carriers could not rely. on any
binding agreement to confer jurisdiction
on specific courts.

Analysing next the previous decisions of
the Court, the United Kingdom statesthat it is well aware that the Court
construes Article 17 strictly and that
moreover that principle cannot be called
in question. However, it is a question of
the strict interpretation of the formal
requirements for the validity of ajurisdiction agreement. The United
Kingdom stresses the importance of theparties' ability to decide jurisdiction byagreement in commercial cases. It istherefore of special importance that the
Court should interpret Article 17 in thelight of commercial realities, as was
expressly stated by Mr Jenard in his
report on the Brussels Convention.
Article 17 would be deprived of aconsiderable proportion of its usefulness
in commercial transactions if the assigneeof a bill of lading were not bound by thejurisdiction clause. It is indeed clear fromthe terms of Article 17 that "the parties"

contemplated by that article must be theparties to the litigation and that thoseparties must have agreed to thejurisdiction clause; however, there is norequirement in Article 17 that the parties
must have agreed to the jurisdiction
clause inter se, and there is no objection,in the United Kingdom's submission, tothe agreement being reached through theintervention of one or more third parties.
Moreover, the Court has alreadyadopted such an approach in relation toa contract of insurance in its judgment inGerling Konzern,in particular inparagraph 18.

The United Kingdom also relies, in
support of its view, upon Articles 8 and 9of the 1978 Convention, which providethat a jurisdiction clause in a contract of
insurance covering damage to the goodsin transit is valid; as the principles whichgovern the seller's obligations in respectof the bill of lading and the contract of
insurance are analagous, it would bedamaging to international trade if theBrussels Convention of 1968 did not
likewise accept the validity of ajurisdiction clause contained in a bill of
lading.

In conclusion, the United Kingdom
submits "that a jurisdiction clause in abill of lading complies with the formal
requirements of Article 17 both inrespect of the original parties to the billof lading and in respect of a third party
holding the bill of lading."(d) Observations of the Commission

The Commission stresses first that thequestions submitted to the Court do
not concern the undisputed primacy of2425

JUDGMENT OF 19. 6. 1984 — CASE 71/83

Article 17 of the Brussels Convention
over national jurisdiction rules, inparticular Article 91 of Book II of theBelgian Commercial Code (Sea andInland Shipping). The Belgian courts
have accepted that primacy since
September 1976, although they havenevertheless continued to reject jurisdiction clauses in bills of lading on the
ground that they do not comply with therequirements of Article 17 of the Brussels
Convention.

Like the respondents in the main action,
the Commission takes the view that it isclear from the judgments of the Court
that Article 17 must be interpreted
strictly, especially in relation to jurisdiction clauses in bills of lading, in viewof the fact that the court designated is in
general the court for the place where thecarrier has its registered office, whichvery often has no fundamental link withthe carriage and therefore with thedisupute.

The Commission adds that, notwithstanding the suggestion made by the Hofvan Cassatie, the interpretation of Article
17 ought not to take into account thegenerally accepted practices in the fieldin question. Indeed in its view, anagreement implied by reference tocommercial practice does not constitutean "agreement" within the meaning of
Article 17, since clear and precise
acceptance is required for that purpose.
Moreover, the strict formal requirements— an agreement in writing or evidenced
in writing — cannot be relaxed on
account of commercial practice andshould be interpreted independently,
without reference to such practice. The
history of the negotiations relating to theConvention of Accession of 1978 also
shows that Article 17 does not permit theexistence of a written agreement by
2426

reference to commercial practice to beestablished, since that article was
supplemented by a paragraph providingthat in international trade or commerce
it is to be possible for the agreement tobe concluded "in a form which accords
with practices in that trade or commerceof which the parties are or ought to havebeen aware". But that Convention has
not yet come into force.

Analysing next the nature of the bill of
lading, the Commission submits that it isa document universally used in sea
transport and, issuing from the carrier,constitutes "evidence of an agreement
between the shipper and the carrier but
not an agreement in itself". The bill of
lading is often an oral agreement
evidenced in writing within the meaningof Article 17 of the Brussels Convention.
Thus it is necessary to apply theprinciples formulated by the Court in
Segoura and Salotti. Pointing out that inalmost all cases the shipper is not awareof the conditions contained in the bill of
lading at the time when the contract ofcarriage is concluded, the Commission
contends that under those circumstances
the jurisdiction clause is not valid under
Article 17 unless it has been expressly
accepted in writing by the shipper. In
practice, the shipper rarely signs the billof lading and in any event did not do soin this case.

Consequently, for the jurisdiction clause
to be valid under Article 17 of theBrussels Convention it is necessary forthe parties either to sign the back of thebill of lading on which the clause appears
or to sign the front, expressly manifesting their intention to accept all theclauses and conditions contained in thebill of lading. It would only be
exceptionally, in the case where there isa continuing trading relationship be-

TILLY RUSS / NOVA

tween the shipper and the carrier, that it
would be contrary to good faith for the
shipper to deny the existence of ajurisdiction conferred by consent, eventhough he had given no acceptance inwriting (cf. Segoura).
In relation to the second question, theCommission considers various hypotheses:
1.

Either the bill of lading is anegotiable instrument, which can bepledged and which incorporates theright of property in the goods. In
that case, the requirements ofcommerce would imply that theprovisions of the bill of ladingbinding the shipper should also bindthe third party to whom the bill of
exchange is assigned. However, thejurisdiction clause would not constitute an "agreement" within themeaning of Article 17 of the Brussels
Convention.

the third party acts in his own
right and not as the successor-in-title of the shipper
and cannot rely upon the
defences
available
totheshipper. However, if the Court
accpets
thattheory,thejurisdiction clause is binding on
the third party by virtue of
Article 17, provided that it isbinding on the shipper and theassignment is valid under thelaw of contract.
(¡i) The
theoryofimpliedagreement, according to which
the fact that the third party
claims delivery of the goods inreliance upon the bill of lading
constitutes acceptance of thecarrier's offer; however, suchan agreement, which is notconfirmed in writing and accepted by the third party, does
notcomplywiththerequirements of Article 17.

or2.

The jurisdiction clause is regarded asa contractual clause. In that case, if
the bill of lading is signed by thethird party, the jurisdiction clause isvalid under Article 17 on the same
conditions as those postulated in theexamination of the first question. If
the third party has not signed the billof lading, there are different theories
in the national legal systems whereby
he may be held to be bound on acontractual basis by the clauses ofthe bill of lading. It is for thenational court to determine whether
there is a contractual basis founded
on one of those theories. The
Commission refers to three theories:(i) The theory of assignment,
according to which the shipperassigns his rights and obligations to the third party.
That theory has been widely
criticized on the ground that(iii) The theory of the clause for the
benefitofthirdparties,according to which the bill of
lading contains clauses concluded by the shipper for the
benefit of the third party towhom the bill is assigned. Inthat case, the third party may
rely upon the jurisdiction clausebut that clause cannot be raised
against him if he elects to sue
before the court which has
jurisdiction under Articles 2, 5
and 6 of the Brussels Convention.
In conclusion, the Commission considers
that the questions referred to the Court
by the Hof van Cassatie should beanswered as follows:"Question 1
The bill of lading issued by the carrier
to the shipper may be regarded as an
2427

JUDGMENT OF 19. 6. 1984 — CASE 71/83'agreement evidenced in writing' between
the parties within the meaning of Article
17. The jurisdiction clause is applicable if
the parties have assigned the bill of
lading. If the jurisdiction clause appears
in the general conditions, the shipper
must have accpeted them expressly andin writing. The text of the bill of lading
signed by the two parties must expresslyrefer to those general conditions.
However, if there is a continuing trading
relationship between the carrier and theshipper which is as a whole governed by
the conditions contained in the carrier's
bill of lading, the jurisdiction clause isapplicable even in the absence of acceptance in writing.

Question 2

The bill of lading issued by the carrier tothe shipper cannot be regarded as an'agreement evidenced in writing' within
the meaning of Article 17 as regards a
third party to whom the bill of lading is
assigned, unless the third party is boundby an agreement with the carrier under
the relevant national law and the bill of
lading, as evidence in writing of thatagreement, complies with the formal
conditions laid down in Article 17."

III — Oral p r o c e d u r e

At the sitting on 31 January 1984 oral
argument was presented, and answers to
the questions put by the Court were
given, by the respondent in the mainproceedings, represented by R. "Wijffels,
the Italian Government, represented by
O. Fiumara, the United Kingdom,
represented by Mr Donaldson and Mr
Muttukumaru, and the Commission of2428

the European Communities, represented
by Professor H. Van Houtte and E.
Zimmermann.

The Italian Government explained more
precisely its views on the first question. It
stated that in its opinion a bill of lading
constitutes a document proving theexistence of the contract of carriage andat the same time a document of title to
the goods and that the jurisdiction clause
constitutes a kind of oral clauseconfirmed in writing, provided that itbears the signature of the party against
whom the clause is relied upon. Finally,such a clause forms part of the generalconditions of the contract. Therefore, it
submitted that if those requirements are
satisfied, that is to say, if the jurisdiction
clause constitutes
anoralclauseconfirmed in writing and bearing thesignature either of the shipper or of theshipping agent and if it constitutes one of
the general conditions of the contract, inthat case it may be in conformity with
Article 17 of the Brussels Convention.
However, according to the ItalianGovernment, only the national court
may determine whether there is a real
signature in the sense described above
and how the clause was included in thebill of lading.

The United Kingdom stated that thequestion was of fundamental importance,
essentially because the choice of forum
might give rise to different solutions.
Since the choice was of fundamental
importance to international trade, theparties ought to be made to respect thatchoice. It was not therefore, in theopinion of the United Kingdom, aquestion merely of legal policy.

As regards the first question submitted
by the Belgian Court of Cassation, theUnited Kingdom considers that its scope

TILLY RUSS / NOVA

should be limited. Thus, the question
should not relate to the bill of lading but
only to the jurisdiction clause, and thequestion should be worded as follows:
Was that jurisdiction clause incorporated
in the bill of lading in a manner showingthat there was a genuine agreement
between the parties, account being takenof the principle of good faith? According
to the United Kingdom, the reply tosuch a question depends on the precise
facts of the case, which are unkown.
Consequently, according to the United

Kingdom, only the national court is in aposition, on the basis of the precise factsof the case, to determine the nature of
the bill of lading. Only at a subsequent
stage does Community law come intoplay. Therefore the United Kingdom isof the opinion that no general reply
should be given to the first question, on
the ground that there are several possible
sets of circumstances.
The Advocate General delivered his
opinion at the sitting on 21 March 1984.

Decision1

By an order dated 8 April 1983, which was received at the Court on 28 April
1983, the Hof van Cassatie [Court of Cassation], Belgium, submitted, in
accordance with the Protocol of 3 June 1971 on the Interpretation by the
Court of Justice of the Convention of 27 September 1968 on Jurisdiction andthe Enforcement of Judgments in Civil and Commercial Matters [hereinafterreferred to as "the Convention"], a question for a preliminary ruling on theinterpretation of Article 17 of that Convention.

2

The question was raised in proceedings brought by the Belgian limited
company " N V Goeminne Hout" against the German shipowner "Partenreederei ms Tilly Russ" and Mr Ernest Russ, both of Hamburg, concerning
the validity of a jurisdiction clause contained in bills of lading Nos CT 108
and CT 118 dated 16 August 1976. It appears from the documents before the
Court that those bills of lading were drawn up for the carrier by Tolmar
International Inc., Cleveland, as agent for Europe Canada Lakes Line, Ernest
Russ — North America, Inc., Chicago, to the order of the shipper, American
Lumber International Inc., Union City, Pennsylvania, Goeminne Hout being
indicated as "notify party" and Tilly Russ as "exporting carrier".
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JUDGMENT OF 19. 6. 1984 — CASE 71/83

3

When the cargo was delivered in Antwerp on 7 September 1976 thepackaging of two lots was found to be damaged and about 10 planks were
missing. Goeminne Hout therefore claimed USD 304 in damages before the
Rechtbank van Koophandel [Commercial Court], Antwerp.

4

Tilly Russ objected to the jurisdiction of the Antwerp court, relying on ajurisdiction clause appearing on the reverse of each of the bills of lading
which stated as follows : "Any dispute arising under this bill of lading shall bedecided by the Hamburg courts."

5

Nevertheless, by judgment of 31 October 1978, the Antwerp court held thatit had jurisdiction and gave judgment in favour of Goeminne Hout; that
judgment was confirmed by the Hof van Beroep [Court of Appeal],
Antwerp, by judgment of 7 October 1981 and, on 1 March 1982, Tilly Russappealed to the Hof van Cassatie.

6

The Hof van Cassatie submitted the following question for a preliminary
ruling:"Can the bill of lading issued by the carrier to the shipper be considered,having regard to the relevant generally accepted practices, to be an'agreement in writing' or an 'agreement evidenced by writing' between theparties within the meaning of Article 17 of the Convention of 27 September
1968 on Jurisdiction and the Enforcement of Judgment in Civil andCommercial Matters and, if so, does that also apply in relation to a third
party holding the bill of lading?"

7

That question must be construed as asking whether the-jurisdiction clausecontained in the bills of lading satisfies the conditions laid down in Article 17of the Convention as regards, first, the relationship between the shipper andthe carrier and, secondly, the relationship between the carrier and a third
party holding the bill.

T h e first p a r t of t h e q u e s t i o n
8According to Goeminne Hout and the Commisison of the European
Communities, Article 17 of the Convention should be interpreted as meaningthat where a jurisdiction clause is not expressly accepted by the shipper andthe carrier it is not valid within the meaning of that provision.
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TILLY RUSS / NOVA

9The Commission adds, however, that even if it was not signed by the shipper
such a clause may nevertheless be valid under Article 17 of the Convention,
provided that there is a continuing trading relationship between the parties.

10

The Italian Government considers that a bill of lading is a document proving
the existence of the contract of carriage and that the jurisdiction clause
therefore constitutes an oral agreement evidenced in writing. If it is signed by
the party against whom it is invoked and forms part of the general conditionsof the contract, then it may be in conformity with Article 17 of theConvention. However, according to the Italian Government, it is for thenational court to ascertain whether there is a signature in the sense indicatedabove and in what circumstances the jurisdiction clause was incorporated in
the bill of lading.

1 1 At the hearing, the United Kingdom emphasized the importance of the issue
raised and suggested that the question submitted by the national court should
be reformulated as follows: Was the jurisdiction clause incorporated in thebill of lading in a manner enabling it to be shown that there was a genuine
agreement between the parties, account being taken of the principle of goodfaith? A reply to that question is possible, according to the United Kingdom,
only if the precise facts of the case are known; however, since in thisinstance they have not been established no general reply should be given to
the first question, on the ground that there are several possibilities, and thenational court should be left to determine the precise nature of the bill of
lading.

12

The first paragraph of Article 17 of the Convention, as now in force, states:"If the parties, one or more of whom is domiciled in a Contracting State,
have, by agreement in writing or by an oral agreement evidenced in writing,agreed that a court or the courts of a Contracting State are to have2431

JUDGMENT OF 19. 6. 1984 — CASE 71/83

jurisdiction to settle any disputes which have arisen or which may arise inconnection with a particular legal relationship, that court or those courts
shall have exclusive jurisdiction."

1 3 It may be observed that for Article 17 of the Convention to apply at least
one of the parties must be domiciled in a Contracting State, that being amatter for the national court to determine.

1 4 As the Court held in its judgments of 14 December 1976 (Case 24/76, Salottiν RÜWA, [1976] ECR 1831, and Case 25/76, Segourav Bonakdarian, [1976]
ECR 1851) and of 6 May 1980 (Case 784/79, Porta-Leasing ν Prestige Inter­national, [1980] ECR 1517), the requirements set out in Article 17 governing
the validity of jurisdiction clauses must be strictly construed since thepurpose of Article 17 is to ensure that the parties have actually consented tosuch a clause, which derogates from the ordinary jurisdiction rules laid downin Articles 2, 5 and 6 of the Convention, and that their consent is clearly andprecisely demonstrated.

15

In order to decide whether the conditions laid down in Article 17 aresatisfied, it is necessary to consider separately whether the agreement of theparties to the choice of jurisdiction was expressed in the form of a writtenagreement or in the form of an oral agreement evidenced in writing.

16

In the first place, it must be observed that, where a jurisdiction clauseappears in the conditions printed on a bill of lading signed by the carrier, therequirement of an "agreement in writing" within the meaning of Article 17of the Convention is satisfied only if the shipper has expressed in writing his
consent to the conditions containing that clause, either in the document inquestion itself or in a separate document. It must be added that the mere
printing of a jurisdiction clause on the reverse of the bill of lading does notsatisfy the requirements of Article 17 of the Convention, since such a
procedure gives no guarantee that the other party has actually consented tothe clause derogating from the ordinary jurisdiction rules of the Convention.
2432

TILLY RUSS / NOVA

17

Secondly, if it was established that the jurisdiction clause contained in theconditions printed on a bill of lading was the subject of a prior oral
agreement between the parties expressly relating to the jurisdiction clause
and that the bill of lading, signed by the carrier, was to be regarded as thewritten conformation of that oral agreement, such a clause would satisfy theconditions laid down in Article 17 of the Convention, even if it was not
signed by the shipper and therefore bore only the signature of the carrier. In
fact, not only is the letter of Article 17, which expressly provides for the
possibility of an oral agreement evidenced in writing, thereby observed but in
addition its function, which is to ensure that the agreement of the parties isclearly established, is also fulfilled.

18

Finally, such a jurisdiction clause not signed by the shipper may still satisfy
the requirements laid down in Article 17 of the Convention, even in theabsence of a prior oral agreement relating to that clause, provided that thebill of lading comes within the framework of a continuing business
relationship between the shipper and the carrier, in so far as it is thereby
established that that relationship is governed as a whole by generalconditions containing the jurisdiction clause drawn up by the author of thewritten confirmation, in this case the carrier (see the Ségoitra judgment, cited
above), and provided that the bills of lading are all issued on pre-printed
forms systematically containing such a jurisdiction clause. In those circumstances, it would be contrary to good faith to deny the existence of ajurisdiction agreement.

19

Consequently, the reply to the first part of the question submitted must bethat 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 of the bill of lading
containing that clause has been expressed in writing; orIf the jurisdiction clause has been the subject 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; or2433

JUDGMENT OF 19. 6. 1984 — CASE 71/83

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.

T h e s e c o n d p a r t of t h e q u e s t i o n

20

As regards the validity of the jurisdiction clause as between the carrier and athird party holding the bill of lading, Goeminne Hout and the Commission
are of the .opinion that if the third party has not signed the bill of lading thejurisdiction plauše appearing on it is not enforceable against him since theagreement between the parties is not established.

21

According to the Commission, an exception may be made to that rule only if
the national legal order in question embodies a theory of assignment
whereby the shipper assigns his rights and obligations to the third party.

22

The Governments of the Italian Republic and the United Kingdom consider
that, in so far as the jurisdiction clause is valid as between the shipper andthe carrier, it should also be valid as against a third party holding the bill of
lading, on the ground that if, by acquiring the bill of lading, such a third
party becomes entitled to exercise the rights mentioned therein he must at
the same time also become subject to the obligations and limitations deriving
thereform; both governments base their view on the judgment of the Courtof 14 July 1983 in Case 201/82 (Gerling v Amministrazione del Tesoro dello
Stato, [1983] ECR 2503).

23

In this regard, it must be noted that the Gerling decision concerned a case inwhich a third party to an insurance contract, containing a stipulation madefor his benefit by the insured, relied upon a jurisdiction clause as against theinsurer, the clause being inspired, as the Court pointed out by a concern toprotect the insured, who "is in a weaker economic position". The sameconsiderations are not necessarily relevant to the carriage of goods by sea.
2434

TILLY RUSS / NOVA24

In so far as a jurisdiction clause incorporated in a bill of lading is valid under
Article 17 of the Convention as between the shipper and the carrier, and inso far as a third party, by acquiring the bill of lading, has succeeded to theshipper's rights and obligations under the relevant national law, the fact ofallowing the third party to remove himself from the compulsory jurisdiction
provided for in the bill of lading on the ground that he did not signify his
consent thereto would be alien to the purpose of Article 17, which is toneutralize the effect of jurisdiction clauses that might pass unnoticed incontracts.

25

In fact, in the circumstances outlined above, acquisition of the bill of lading
could not confer upon the third party more rights than those attaching to theshipper under it. The third party holding the bill of lading thus becomesvested with all the rights, and at the same time becomes subject to all theobligations, mentioned in the bill of lading, including those relating to theagreement on jurisdiction.

26

It is apparent from all the foregoing considerations that the reply to thesecond part of the question submitted must be that the conditions laid downin Article 17 of the Convention are satisfied in the case of a jurisdiction
clause contained in a bill of lading, provided that the clause has been
adjudged valid as between the carrier and the shipper and provided that, by
virtue of the relevant national law, the third party, upon acquiring the bill of
lading, succeeded to the shipper's rights and obligations.

Costs

27

T h e costs incurred by the G o v e r n m e n t of the Italian Republic and the United
K i n g d o m and by the Commission of the E u r o p e a n Communities, which havesubmitted observations to the C o u r t , are not recoverable. As theseproceedings are, in so far as the parties to the main proceedings areconcerned, in the nature of a step in the action pending before the national
court, the decision o n costs is a matter for that court.
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JUDGMENT OF 19. 6. 1984 — CASE 71/83

On those grounds,

THE COURTin reply to the question submitted to it by the Belgian Hof van Cassatie byorder of 8 April 1983, hereby rules:
1. A jurisdiction clause contained in the printed conditions on a bill of
lading satisfies the conditions laid down by Article 17 of theConvention:
If the agreement of both parties to the conditions containing thatclause 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, inwhich case the bill of lading, signed by the carrier, must be regarded
as confirmation in writing of the oral agreement, orIf the bill of lading comes within the framework of a continuingbusiness relationship between the parties, in so far as it is thereby
established that that relationship is governed by general conditions
containing the jurisdiction clause;
2. 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 virtueof the relevant national law, the third party, upon acquiring the bill of
lading, succeeded to the shipper's rights and obligations.

Mackenzie Stuart
Pescatore

O'Keeffe

Koopmans
Bosco

BahlmannDue

GalmotEverling

Delivered in open court in Luxembourg on 19 June 1984.

P. HeimT. Koopmans

Registrar

President of the Fourth Chamber

2436