Gerechtshof 's-Gravenhage, arrest van 26/06/2008 Nationale Nederlanden Schadeverzekering NV e.a. / Lisboa Shipping Co. Ltd
Decision by national courts in the field of European Union law — ECLI:NL:GHSGR:2008:BD5585
Date: 2008-06-26
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82008NL0626(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The cargo on a sea transport from Madeira (PT) to Rotterdam (NL) was damaged. The defendant, with its seat in the Caribbean, was owner of the ship. The bill of lading issued for the cargo was made out in the name of the plaintiff, with its seat in Portugal. The plaintiff sued the defendant for damages before the Rechtbank of Rotterdam (NL). The defendant disputed the jurisdiction of the court and cited a jurisdiction clause in the bill of lading in favour of the courts of Hamburg (DE). The Rechtbank declared itself lacking in jurisdiction. The plaintiff appealed to the Gerechtshof of 's-Gravenhage (NL). It alleged that the defendant is not a party to the transport contract contained in the bill of lading and cannot rely on the jurisdiction claus. It further alleged that the so-called Himalaya Clause, with which the carrier binds third parties to the terms and conditions of the bill of lading that it agrees, cannot lead to any other conclusion as otherwise the form requirements of Article 23 Brussels I Regulation would be circumvented.
The Hof of 's-Gravenhage (NL) finds that, according to the ECJ, succeeding owners of a bill of lading can be bound by a jurisdiction clause in a bill of lading validly agreed by the original sender and carrier (ECJ, 19.06.1984, Tilly Russ/Nova, 16.03.1999, Castelletti/Triumpy). The Hof further holds that it is not contrary to the controlling authority on this point of law that the defendant as a succeeding transporter may also rely on the jurisdiction clause. The so-called Himalaya Clause is recognised throughout the world of international transport and represents a contract in the favour of the third party. The Hof draws from the jurisprudence of the ECJ (14.07.1983 Gerling/Tesoro dello Stato) that the instrument drafted under Article 23 Brussels I Regulation binding the contracting parties does not block a third party beneficiary named in the contract from relying on the jurisdiction clause. The Hof dismisses the appeal.