Rechtbank Rotterdam, uitspraak van 07/02/2007 241261/HA ZA 05-1862 Bg Freight Line B.V. / Allied Distillers Ltd., Graveleau S.A. E.A.
Decision by national courts in the field of European Union law — ECLI:NL:RBROT:2007:AZ9189
Date: 2007-02-07
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82007NL0207(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
A, which has its seat in the Netherlands, transported a container of whisky by sea from Scotland to Antwerp (BE) on behalf of X and Y. For the purposes of further transport to Z in Vatry (FR), A subcontracted B, who in turn subcontracted C. The lorry, along with the freight, was stolen in transit. A brought an action against X, Y and Z in the Rechtbank of Rotterdam (NL) and applied for a declaration that it was not liable for the loss. X pleaded a lack of jurisdiction, while Y and Z did not appear. A invoked a jurisdiction clause in its terms and conditions of the bill of lading in favour of the Dutch courts. A had sent them along with a reference to them to X, who had not objected to them. It asserted that the parties had an established business relationship and had always concluded contracts in this manner.
The Rechtbank of Rotterdam (NL) examines whether the requirements of Article 23 Brussels I Regulation are fulfilled. It holds that, according to the undisputed submission by the parties, the order was issued orally without a written bill of lading. The mere sending of the terms and conditions of the bill of lading does not suffice for the purposes of clearly and unambiguously expressing the agreement between the parties that is necessary within the context of Article 23(1)(a) Brussels I Regulation. So far as the oral agreement was concluded within the context of an established business relationship within the meaning of Article 23(1)(b) Brussels I Regulation, the requirement of written acceptance by X falls away. However, in this case A would have had to refer expressly to the jurisdiction clause in its confirmation, which it did not do. Jurisdiction may not be established under any other ground. None of the defendants have their seat in the Netherlands, and the services performed by A were not carried out in the Netherlands. This also applies with respect to Y and Z. The Rechtbank of Rotterdam (NL) holds that it lacks jurisdiction.