Oberster Gerichtshof, Urteil vom 08/07/2009 7 Ob 18/09m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0125096
Date: 2009-07-08
Subject matter: Lugano Convention
Origin: Austria

82009AT0708(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant contracted the claimant, a maritime transport company with its seat in Switzerland, to carry out a contract of carriage. The bill of lading contained the following jurisdiction clause: "Any dispute arising out of this bill of lading shall be adjudicated in the country in which the carrier has its main place of business and the law of this country shall apply, unless provisions to the contrary are contained in this document." Upon an application of the receiver of the goods, the claimant's ship was arrested in order to secure a claim of damages. The legal matter was brought before the Oberste Gerichtshof (AT).
The Oberste Gerichtshof (AT) holds that the Swiss courts have jurisdiction. The common intent of the parties within the meaning of Article 17(4) is necessary in order to derogate from the general rule of Article 17 Lugano Convention. This must arise clearly from the wording of the jurisdiction agreement or from the entirety of content of the contract or the circumstances of the conclusion of the contract. If, as in this case, it is stipulated by way of a jurisdiction agreement that a certain court should decide upon a claim and that, by way of a likewise concluded choice of law clause, this court should apply its national law, this agreement may not be arbitrarily rescinded by only one of the parties. While the word "exclusive" was not used in the jurisdiction clause, "any disputes" arising out of the bill of lading were to fall thereunder. Jurisdiction clauses in bills of lading, although issued unilaterally by the carrier, are also valid with respect to the shipper due to an international trade usage. Since under the jurisdiction agreement all disputes arising in relation to the carriage were to be heard before a single court, the claims for damages raised by the claimant also are included thereunder.