Opinion of the Advocate General — ECLI:EU:C:1998:423
Date: 1998-09-22
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Jurisdiction
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary 
Legal framework I - 1601 
Facts I - 1603 
Preliminary remarks I - 1605 
Opinion 1-1608 
I — Jurisdictional capacity (third and seventh questions) I - 1608 
third question I - 1608 
seventh question I - 1609 
II — The consent of the parties to the jurisdiction clause (first and eleventh questions 
and the first part of the second question) I - 1612 
first question I - 1612 
eleventh question I - 1615 
second question I - 1615 
III — 'Form which accords with usages in international trade or commerce' (second 
question, second and third limbs, fourth, eighth, tenth and ninth questions) I - 1618 
'Forms which accord' I - 1618 
second question I - 1618 
Usage 1-1620 
fourth question I - 1620 
eighth question I - 1622 
tenth question I - 1623 
International trade or commerce I - 1624 
ninth question I - 1624 
IV — The· parties' awareness of the usage in question (thirteenth, fourteenth, twelfth, fifth 
and sixth questions) I - 1626 
thirteenth question I - 1626 
fourteenth question I - 1628 
twelfth question I - 1629 
fifth question I - 1629 
sixth question I - 1630 
Conclusion 1-1631 
Annex: The preliminary questions submitted by the Corte Suprema di Cassazione I - 1632 
* Original language: French. 
I - 1600 
CASTELLETTI v TRUMPY 
1. By the 14 questions submitted to the 
Court,1 the Corte Suprema di Cassazione 
asks the Court to explain the conditions for 
the application of Article 17 of the Conven­
tion of Brussels of 27 September 1968 on 
Jurisdiction and the Enforcement of Judg­
ments in Civil and Commercial Matters, as 
amended by the Accession Convention 
of 1978 2 (or hereinafter 'the Convention'), in 
so far as it refers to usages in international 
trade or commerce, in order to examine the 
validity of a clause conferring jurisdiction 
appearing on the reverse side of a bill of 
lading,3 of which only the front side is 
signed. 
Legal framework 
2. Under the unified system of determination 
of jurisdiction that Title II of the Convention 
seeks to facilitate, Article 17 provides for an 
exclusive head of jurisdiction, derogating from 
both that established in principle by Article 2, 
for the courts of the Contracting State in 
which the defendant is domiciled, and the 
special jurisdiction provided for in Articles 5 
and 6. The Court has consistently held in this 
regard that 'the requirements laid down by 
Article 17 of the Convention must be strictly 
interpreted in so far as that article excludes 
both jurisdiction as determined by the gen­
eral principle of the defendant's courts laid 
down in Article 2 and the special jurisdictions 
provided for in Articles 5 and 6. '4 
3. Article 17, which forms part of Section 6 
concerning 'Prorogation of jurisdiction', 
which also gives jurisdiction, under Article 
18, to the courts before which the defendant 
appears, allows the parties, at least one of 
whom is domiciled in a Contracting State, by 
a demonstration of their will alone, to confer 
jurisdiction on the courts of a Contracting 
State which normally have no jurisdiction. 
4. The article in question, Article 17, 'is prob­
ably the article of the Convention that was 
the most transformed by the successive acces­
sions of new States'. 5 It is thus useful to 
briefly recall the evolution of this provision. 
1 — For case of reading, the complete text of the questions is 
annexed. 
2 — Convention of 27 September 1968 on Jurisdiction and the 
Enforcement of Judgments in Civil and Commercial Matters 
(OJ 1972 L 299, p. 32), as amended by the Convention of 9 
October 1978 on the Accession of the Kingdom of Denmark, 
Ireland and the United Kingdom of Great Britain and Northern 
Ireland, including the Protocol on its interpretation by the 
Court of Justice (OJ 1978 L 304, p. 1, amended version at 
p. 77). 
3 — Bill of lading is defined in Article 1(7) of the 'United Nations 
Convention on the Carriage of Goods by Sea' of 31 Marcii 
1978, more widely known under the name 'Hamburg Rules' 
— to which, for the purposes of the present case, neither the 
Italian Republic nor the Argentinean Republic seem to be 
parties — adopted within the framework of the United 
Nations Conference on the Development of Trade and 
Industry (Cnudci): 'Bill of lading means a document which 
evidences a contract of carriage by sea, and the taking over 
or loading of the goods by the carrier, and by which the car­
rier undertakes to deliver the goods against surrender of the 
document. A provision in the document that the goods arc 
to be delivered to the order of a named person, or to order, 
or tobcarcr, consu'tuics such an undertaking'. The nature of 
the bil! of lading is, however, disputed. As proof of this, one 
can refer to the Opinion of Advocate General Sir Gordon 
Slynn in Case 71/83 Tilly Run [1984] ECR 2417 at p. 2438. 
4 — Case C-106/95 MSG [1997] ECR 1-911, paragraph 7, which 
refers to the judgments in Case 24/76 Estasis Salotti [1976] 
ECR 1831, paragraph 7, and Case 25/76 Scgoum [1976] ECR 
1851, paragraph 6. 
5 — Gaudcmct-Tallon, l i . : Les Conventions tic Bruxelles et tle 
Lugano, LGDJ, 1996, paragrapli 104. 
I -1601 
O P I N I O N OF MR LÉGER — CASE C-159/97 
5. In its original version, this provision was 
worded as follows: 
'If the Parties, one or more of whom is domi­
ciled in a Contracting State, have, by agree­
ment in writing or by an oral agreement evi­
denced in writing, agreed that a court or the 
courts of a Contracting State are to have 
jurisdiction to settle any disputes which have 
arisen or which may arise in connection with 
a particular legal relationship, that court or 
those courts shall have exclusive jurisdiction.' 
6. By the adoption of the Accession Conven­
tion of 1978, the Contracting Parties agreed, 
in particular, that agreements conferring juris­
diction could be concluded in a third form: 
beside the reference to a written agreement or 
oral agreement confirmed in writing there was 
added that of the usages of international trade 
or commerce. This version, which is the sub­
ject of the present reference, reads as follows: 
'If the parties, one or more of whom is domi­
ciled in a Contracting State, have agreed that 
a court or the courts of a Contracting State 
are to have jurisdiction to settle any disputes 
which have arisen or which may arise in con­
nection with a particular legal relationship, 
that court or those courts shall have exclusive 
jurisdiction. Such an agreement conferring 
jurisdiction shall be either in writing or evi­
denced in writing or, in international trade or 
commerce, in a form which accords with 
practices in that trade or commerce of which 
the parties are or ought to have heen aware. 
'Where such an agreement is concluded by 
parties, none of whom is domiciled in a Con­
tracting State, the courts of other Contracting 
States shall have no jurisdiction over their dis­
putes unless the court or courts chosen have 
declined jurisdiction' 6 
7. I should, finally, refer to the latest version 
of Article 17, resulting from the Convention 
of San Sebastian of 26 May 1989, 7 which 
clarifies the nature of the usage with which 
the form of the clause should accord and, in 
particular, lays down a fourth form that may 
be used by the parties, in order to take account 
of the 'practices' which they may have estab­
lished between themselves. 
'If the parties, one or more of whom is domi­
ciled in a Contracting State, have agreed that 
a court or the courts of a Contracting State 
are to have jurisdiction to settle any disputes 
which have arisen or which may arise in 
6 — My emphasis. 
7 — Convention on the Accession of the Kingdom of Spain and 
the Portuguese Republic to the Convention on Jurisdiction 
and the Enforcement of Judgments in Civil and Commercial 
Matters and to the Protocol on its interpretation by the Court 
of Justice with the adjustments made to them by the Conven­
tion on the Accession of the Kingdom of Denmark, Ireland 
and the United Kingdom of Great Britain and Northern Ire­
land and the adjustments made to them by the Convention 
on the Accession of the Hellenic Republic (OJ 1989 L 285, 
p. 1). 
I - 1602 
CASTELLETTI v TRUMPY 
connection with a particular legal relation­
ship, that court or those courts shall have 
exclusive jurisdiction. Such an agreement con­
ferring jurisdiction shall be either: 
(a) in writing or evidenced in writing, or 
(b) in a form which accords with practices 
which the parties have established between 
themselves, or 
(c) in international trade or commerce, in a 
form which accords with a usage of which 
the parties are or ought to have been 
aware and which in such trade or com­
merce is widely known to, and regularly 
observed by, parties to contracts of the 
type involved in the particular trade or 
commerce concerned' 8 
Facts 
8. The questions referred to the Court origi­
nated in the following facts: 
9. Consignments of fruit were loaded by 
various Argentinian shippers under 22 bills of 
lading issued in Buenos Aires on 14 March 
1987 on board a vessel operated by the ship­
owner Lauritzen Reefers A/S, whose regis­
tered office is in Copenhagen, bound for 
Savona in Italy, where they were to be deliv­
ered to the company Trasporti Castelletti 
Spedizioni Internazionali SpA (hereinafter 
'Castelletti' or 'the appellant in the main pro­
ceedings'). 
10. As a result of problems which arose 
during the unloading of the goods, Castelletti 
brought an action against the forwarding agent 
of the ship and the Danish carrier, 9 Hugo 
Trumpy SpA (or hereinafter 'the respondent 
in the main proceedings'), having its regis­
tered office in Genoa, Italy, before the Tribu­
nale di Genova (Genoa District Court) seeking 
an order for payment of compensation. 
8 — My emphasis. 
9 — In shipping mailers, the fonoarding agent of the ship is the 
representative of tile carrier (shipowner), linked to his prin­
cipal by a consignment contract, responsible for the receipt 
and delivery of the goods on behalf of the latter and, more 
Generally, to sec through all operations that the captain docs 
not carry out himself. He is distinguishable from the for­
warding agent of the carso who in contrasi is a representa­
tive having the job of taking delivery of the goods on behalf 
of the consignee (lutmy Trantport, volume 2, section 4, Mari­
time Transport, Nos 631 and 637). 
I - 1603 
OPINION OF MR LÉGER — CASE C-159/97 
11. The respondent in the main proceedings 
immediately invoked the lack of jurisdiction 
of the Italian court, relying on Article 17 of 
the Brussels Convention, as drafted following 
the Accession Convention of Luxembourg of 
1978 and clause 37 of the bills of lading, con­
ferring jurisdiction on the High Court of Jus­
tice, London. 
12. This clause, which was drawn up in 
English like the rest of the bill of lading in 
which it was contained, and in small, but leg­
ible, characters, is the last reference to appear 
on the reverse side of the printed document. 
It reads as follows: 'The contract evidenced 
by this Bill of Lading shall be governed by 
English Law and any disputes thereunder 
shall be determined in England by the High 
Court of Justice in London according to 
English Law to the exclusion of the Courts of 
any other country.'10 
On the face of the bill of lading there is, inter 
alia, a box to be filled in with particulars of 
the cargo, as well as a reference, worded in 
capitals, in thick letters larger than those used 
in the clauses, to the conditions set out on the 
reverse side: 'Continued on reverse side'. n 
Below that reference are added the date and 
place of issue of the bill of lading, as well as 
the signature of the carrier; that of the original 
shipper appearing just below particulars of 
the cargo, is appended beside the reference 
'above particulars declared by shipper'.12 
13. Having regard to the usages of interna­
tional trade or commerce, the Tribunale di 
Genova upheld the objection of lack of juris­
diction and held the clause in question, 
although contained in a form not signed by 
the shipper, to be valid. By decision of 7 
December 1994, the Corte d'Appello, Genoa, 
upheld the first decision, but on different 
grounds. It ruled that the signature on the 
face of the bill of lading by the original 
shipper implied acceptance of all the clauses, 
including those on the reverse side, by Cas­
telletti. 
14. Castelletti therefore appealed on a point 
of law, relying on Article 17 of the Conven­
tion, and, in particular, on the condition 
regarding the consent of the parties, on the 
ground that the signature of the original 
shipper could not have entailed acceptance by 
it of all the clauses, but only those which pre­
ceded it, relating to the particulars of the 
cargo. 
10 — [In the original French text, a French translation is given 
here.] 
11 — [French translation.] 12 — [French translation]. 
I - 1604 
CASTELLETTI v TRUMPY 
15. The Corte Suprema di Cassazione ruled 
that: 'the plea of the applicant is admissible'. 13 
While finding that the amended 1978 Con­
vention was applicable, it considered that there 
nevertheless existed a doubt as to the correct 
interpretation of the (new) wording of Article 
17, which requires that an agreement confer­
ring jurisdiction should be concluded 'in inter­
national trade or commerce in a form which 
accords with usages in that trade or com­
merce of which the parties are or ought to 
have been aware', since it ruled out the pos­
sibility that the agreement had been made in 
writing, or was even evidenced in writing. 
16. It thus granted a stay and referred to the 
Court fourteen questions, reproduced in the 
annex, which may be regrouped under dif­
ferent headings, which I will now examine in 
turn. 
Preliminary remarks 
17. The extreme detail of the questions sub­
mitted to the Court is at first sight somewhat 
perplexing. 
18. The Italian court seems to be inviting the 
Court to review all its already extensive 
case-law on Article 17 of the Convention, u 
in particular before the amendment made in 
1978, in order to ascertain that it is still rel­
evant after that date. On the one hand, it docs 
not follow from the Schlosser Report15 that 
the wish of the Contracting Parties was to 
completely change the meaning and scope of 
this provision: the aim was rather to resolve 
a number of difficulties encountered in prac­
tice and to anticipate the particularities of new 
members. On the other hand, I doubt the rel­
evance of some of the questions submitted 
for the resolution of the case, especially since 
the scant information contained in the order 
for reference does not assist in probing the 
concerns of the court that prompted them. 
19. It is also true, as wc shall sec, that a cer­
tain number of the questions formulated have 
lost some relevance since the Court's rulings 
in recent cases, in particular MSG, ibid., and 
the judgment of 3 July 1997 in Bcnincasa. Xb 
20. I will nevertheless do my best to suggest 
to the Court a way which, while fully taking 
into account the questions submitted, pro­
vides effective clarification to the national 
13 — Paragraph 1, second indent, of the translation of the order 
for reference. 
14 — According to my reckoning, there arc no less than fourteen 
decisions concerning this provision, 
15 — Report on the Convention of 9 Octoher 1978 on the Acces­
sion of the Kingdom of Denmark, Ireland and the United 
Kingdom of Great Britain and Northern Ireland to the Con­
vention on Jurisdiction and the Enforcement of Judgments 
in Civit and Commercial Matters and to the Protocol on its 
interpretation by the Court of Justice (OJ 1979 C 59, p. 71), 
called the 'Schlosser Report', paragraphs 174 to 179. 
16 — Case C-269/95 Bcnmcaia v Dcnlalkit [1997] LCR. 1-3767. 
I -1605 
O P I N I O N O F MR LÉGER — CASE C-159/97 
court on the application of Article 17 of the 
Convention which in the end it has to apply. 
21. I think it is useful to point out first of all 
that the Corte Suprema di Cassazione cor­
rectly holds Article 17 of the Brussels Con­
vention, resulting from the amendment made 
in 1978, applicable in this case. 
22. On the one hand, the bill of lading in 
question was issued on 14 March 1987, that 
is after the date of entry into force of the 
amended Convention in each of the Con­
tracting States capable of having a connecting 
link with the facts in the present case (the 
Italian Republic, the Kingdom of Denmark 
and the United Kingdom of Great Britain 
and Northern Ireland).17 
On the other hand, neither the Accession 
Convention of 25 October 1982 18 nor — a 
fortiori — that of San Sebastian had entered 
into force at the time of the facts in question. 
23. It is beyond doubt that the Convention 
as amended by the 1978 Accession Conven­
tion is fully applicable ratione temporis. 
24. Moreover, the foreign element introduced 
into the present case by the Argentine nation­
ality of the original shippers is not of such a 
nature to exclude the application of Article 
17, as the Corte Suprema di Cassazione points 
out.1 9 
25. In requiring that at least one of the par­
ties be 'domiciled in a Contracting State', the 
authors of the Convention really envisaged 
three types of situation, as M. Jenard zo empha­
sised in his report: 'Article 17 applies where 
the agreement conferring jurisdiction was 
made either between a person domiciled in 
one Contracting State and a person domiciled 
in another Contracting State, or between a 
person domiciled in a Contracting State and 
a person domiciled outside the Community, 
if the agreement confers jurisdiction on the 
Courts of a Contracting State; it also applies 
where two person domiciled in one Con­
tracting State agree that the Court of another 
17 — The Accession Convention signed on 9 October Î978 in 
Luxembourg came into force between the six original States 
and the Kingdom of Denmark on 1 October 1986, then 
between these seven States and the United Kingdom of Great 
Britain and Northern Ireland on 1 January 1987. 
18 — Convention on the Accession of the Hellenic Republic to 
the Convention on Jurisdiction and the Enforcement of 
Judgments in Civil and Commercial Matters and to the Pro­
tocol on its interpretation by the Court of Justice with the 
adjustments made to them by the Convention on the Acces­
sion of the Kingdom of Denmark, Ireland and the United 
Kingdom of Great Britain and Northern Ireland (OJ 1982 
L 388, p. 1). This second Accession Convention entered into 
force on 1 April 1989 in relations between the Contracting 
Parties, except for relations with the United Kingdom or 
Great Britain and Northern Ireland, for which it entered 
into force on 1 October 1989. 
19 — Paragraph 2, first indent of the translation of the order for 
reference. 
20 — Report on the Convention on Jurisdiction and the Enforce­
ment of Judgments in Civil and Commercial Matters (OJ 
1979 C 59, p. 1), called the 'Jenard Report'. 
I -1606 
CASTELLETTI v TRUMPY 
Contracting State shall have jurisdiction.' 21 
For its part, the Schlosser Report observes 
that 'Article 17 ... [applies] only if the trans­
action in question is international in charac­
ter.' 22 
26. It is sufficient to recall that this is clearly 
the case on the facts of the present case. 
27. Without at this stage resolving the ques­
tion — which will be examined later — of the 
identification of the 'parties' envisaged by 
Article 17 of the Convention, it can be noted 
right away that, both in the relations between 
the original parties and those linking the appel­
lant in the main proceedings to the respon­
dent in the main proceedings, the condition 
that at least one of the parties has 'his domi­
cile in a Contracting State' is satisfied. 
28. First of all, in the context of the initial 
links, the disputed clause is one of those fore­
seen in the second instance in the Jcnard 
Report because it was concluded between 'a 
person domiciled in a Contracting State' (the 
Danish carrier) and 'a person domiciled out­
side the Community' (the Argentine ship­
pers) 23 and it grants 'prorogation in favour of 
the court of a Contracting State' (the High 
Court of Justice, London). 
29. The second relational context presents no 
difficulties, each of the two parties being domi­
ciled in a Contracting State (Italy in the 
present case). 
30. Finally, although the field of maritime 
transport, in particular in so far as it concerns 
bills of lading, is specifically dealt with by 
international conventions, widely cited else­
where during the proceedings before the 
Court, 24 it is clearly not excluded from the 
material scope of Article 17 of the Conven­
tion, 
31. In this regard, it should be remembered 
that, with the exception of the restrictions 
contained in Article 12 (jurisdiction in insur­
ance matters), Article 15 (jurisdiction over 
consumer contracts) and Article 16 (exclusive 
jurisdiction in certain matters, such as rights 
in immovable property) of the Convention, 
the choice of forum is allowed in all matters 
covered by the Convention. 
21 — Ibid., p. 38. 
22 — Paragraph 174. 
23 — The information according to which the Danish carrier has 
its registered office in Denmark appears in paragraph 2, first 
indent, of the translation of üle order for reference. In con­
trast, no information can be found as regards the 'domicile' 
of die Argentine shippers; I assume nevertheless that it is 
outside a country that is a member of the Convention. 
24 — Apart from the United Nations Convention on the carriage 
of goods bysea, I also note the international convention for 
the unification of certain rules for bills of lading signed at 
Brussels on 25 August 1924 (wrongly referred to sometimes 
by the name of the 'Hague Rules') and the protocols 
amending this convention, also signed at Brussels, the former 
on 23 February 1968 (called the 'Visby Rules'), the other on 
21 December 1979. 
I -1607 
OPINION OF MR LÉGER — CASE C-159/97 
Opinion 
32. Despite their large number, the questions 
referred to the Court essentially seek to have 
the Court explain each of the three elements 
affecting the validity of a jurisdiction clause 
from the point of view of the third case men­
tioned in the second sentence of the first 
paragraph of Article 17 of the Convention in 
its 1978 version. They mean to identify at the 
outset the competent court to rule on the 
conditions for application of this provision. 
33. I therefore propose to examine them in 
so far as they concern the consent of the par­
ties to the clause (II); the notion of form 
which accords with usages in international 
trade or commerce (III); as well as the par­
ties' awareness of the usage (IV). Some of the 
questions also relate to jurisdictional capacity 
to recognise such clauses (I); to the extent 
that they affect the jurisdiction of the national 
court, it is with these that I begin my analysis. 
I —Jurisdictional capaaty (third and seventh 
questions) 
34. By its third question, the national court 
asks the Court whether, for the purposes of 
applying Article 17, the court designated by 
the jurisdiction clause must be linked in some 
way to the dispute. The question is worded 
as follows: 
'[The Corte Suprema di Cassazione asks] 
whether the designated court must, as well as 
being a court of a Contracting State, be in 
some way related to the nationality and/or 
the residence of the parties to the contract or 
to the place of performance and/or conclu­
sion of the contract, or whether the first con­
dition is sufficient without there being any 
other link with the substance of the relation­
ship.' 
35. It seems to me that the case-law of the 
Court allows a clear negative answer to be 
given right away to the first alternative thus 
formulated. 
36. In Zeiger 2S the Court held that, in con­
trast to Article 5(1) of the Convention, which 
provides for a ground of jurisdiction — the 
courts of the place in which the contractual 
obligation was or is to be performed — justi­
fied by the existence of a direct connecting 
factor between the dispute and the selected 
court, Article 17 '... dispenses with any objec­
tive connection between the legal relationship 
in dispute and the court designated'. 26 
25 — Case 56/79 Zeiger v Salinari [1980] ECR 89. 
26 — Ibid., paragraph 4. 
I -1608 
CASTELLETTI v TRUMPY 
37. This analysis was confirmed by the Court 
in its most recent judgments, which empha­
sised that the disputed provision '... which 
accords with the intentions of the parties to 
the contract and provides for exclusive juris­
diction by dispensing with any objective con­
nection between the relationship in dispute 
and the court designated.' 27 
38. This is, as academic writers have stated, 28 
a rejection of the theory oí forum conveniens, 
the practical difficulties for the application of 
which, arising from the determination of the 
link between the case and the court desig­
nated, can easily be imagined. On the con­
trary, it may be preferable to leave the parties 
to choose the most neutral court possible, 
which may be completely unconnected to 
their dispute. As one author states, 'If every 
possibility of absolute neutrality had been 
eliminated from the outset, it would have 
encouraged the parties to turn to arbitration, 
where the absence of an objective link between 
the dispute and the arbitrators is more usu­
ally the case in international matters'. 2 ' 
39. It follows from this that, in so far as the 
court designated in the jurisdiction clause is 
concerned, the greatest possible freedom is 
left to the will of the parties, which cannot be 
restricted, according to the wording of the 
provision itself, except by the requirement 
that the court must be one belonging to a 
Contracting State. 
40. In reply to the third question, it therefore 
suffices to say that, for the application of 
Article 17, it is not necessary that the juris­
diction chosen has a link with the parties or 
the contract.30 
41. The jurisdiction chosen docs not, how­
ever, always necessarily coincide with the 
court seised. Dealings with a clause confer­
ring jurisdiction can be a source of difficulty 
for the latter, as in the present case, which led 
the national court to ask the seventh question, 
which is: 
'whether the court (other than the chosen 
court) which has been called upon to assess 
the validity of the clause may examine rea­
sons for it, that is to say, the intention of the 
carrier in the choice of court made, as distinct 
from the court which would have had juris­
diction according to the usual criteria laid 
down in the Brussels Convention or by the 
lex fori.' 
27 — Benincasa, ¡bid., paragraph 28. Paragraph 34 of the MSG 
judgment, ibid,, can also be cited. 
28 — See, for example, Alexandre, D.: 'Convention de Bruxelles 
(Compétence)', in Répertoire dc droit communautaire, Ency­
clopedic pallon, volume I, N o 264; Droz, G. A. L.; Cotn-
pétciicc judiciare et effets des jugements dans le Marché 
Commun (Ende de la Convention de Bruxelles du 27 sep­
tembre 1968), Dallo?, 1972, paragraph 206; Gaudemet-
Tallon, H. ibid., N o 130. 
29 — Droz, G. A. L., ibid., N o 206. 
30 — Sec, to this effect, the Opinion of Advocate General Capo-
torti in Case 23/78 Mecth v Glacctal [19781 ECU 2133 at 
p. 2146. 
I -1609 
OPINION OF MR LÉGER — CASE C-159/97 
42. The Court is hereby invited to take a 
position on the twofold question of the power 
of the court seised to examine the validity of 
the clause granting jurisdiction to another 
court, and if the case arises, the extent of this 
review. 
43. If the power of the court designated by 
the jurisdiction clause to rule on its validity 
is not in doubt, that of the court seised raises 
certain questions. 31 It is true that the exclu­
sive nature of the jurisdiction conferred on 
the court chosen by the parties could be 
invoked against it, under Article 17, according 
to which the 'court or the courts [designated 
by the parties] shall have exclusive jurisdic­
tion'. 
44. However, it does not seem to me that it 
should end at this consideration. The case-law 
and the Schlosser Report, seem to me in fact 
to be without ambiguity in this regard. 
45. In Estasis and Segoura, cited above, 32 the 
Court stated that '... Article 17 imposes on 
the court before which the matter is brought 
the duty of examining, first, whether the 
clause conferring jurisdiction was in fact the 
subject of consensus between the parties', 
such consensus, as we shall see, affecting the 
validity of the clause. 
46. It is true that, in those two cases, the 
court before which the matter was brought 
was the court designated by the clause. The 
reasoning followed should however prevail 
where this is not the case. 
47. If the court before which the matter is 
brought is not recognised as having power to 
rule in the first place on the validity of the 
clauses electing a foreign jurisdiction, it should 
logically be allowed to stay proceedings as 
soon as it is seised, in order to refer the par­
ties to the court designated, so as to leave it 
to the latter court to review the validity of 
the clause conferring jurisdiction on it, 
although it may mean that the latter court 
will refer the case back again to the court 
originally seised should review of this issue 
be negative. One can see immediately the 
incoherence of such a mechanism in the 
scheme of the Convention, one of whose 
objectives is to facilitate the immediate and 
speedy designation of a competent court. 
48. The Court's recent judgment in Benin-
casa, cited above, without specifically tackling 
this aspect, nevertheless ruled on the related 
question of the court competent to determine 
whether or not the dispute falls within the 
scope of application of the clause conferring 
jurisdiction in favour of the '... the national 
court...[before which] the clause conferring 
31 — Sec, for example, Watté, N., Nuyts, A., and Boularbah, H.: 
'Chronique •—• La Convention de Bruxelles (deuxième par­
tie)', Journal des Tribunaux de Droit Européen, Aprii 199S, 
paragraph 21, which favours the jurisdiction of the court 
seised to recognise the validity of the clause. The contrary 
opinions expressed by Beruado, J.-P., Blanchin, C, and 
Alexandre, À. are also cited (footnote 15), 
32 — Paragraphs 7 and 6 respectively. 
I -1610 
CASTELLETTI v TRUMPY 
jurisdiction [is] invoked'. 3 3 This broad for­
mulation seems to me to designate in a gen­
eral manner the court before which the matter 
is brought, whether this corresponds or not 
with the jurisdiction designated. 
49. Moreover, the approach which I am sug­
gesting to the Court is not at all detrimental 
to the legal certainty sought by the Conven­
tion in the designation of competent courts. 
In recognising the power of the court before 
which the matter is brought to rule on the 
validity of the clause, and thus on its own 
jurisdiction, whether it is the court chosen or 
not, the power of the court to rule on the 
substance of the dispute is not prejudiced. In 
the interests of economy of procedure it 
simply puts the court before which the matter 
is brought in a position to ascertain itself 
whether it has jurisdiction. 
50. The Schlosser Report does not really say 
anything different when it states that '... the 
existence of an agreement conferring jurisdic­
tion on a court other than the one seised of 
the proceedings is ... taken into account by 
the court of its own motion.' 3 4 Thus, once it 
is accepted that the court seised of the pro­
ceedings has to satisfy itself that the parties 
have not agreed to another jurisdiction, it 
must be accepted that it is also allowed, by 
the same token as it were, to verify the validity 
of such an election of jurisdiction. 
51. Finally, I should also point out that to 
deny the court seised of proceedings the 
power to rule on the validity of the clause 
would risk encouraging delaying tactics in 
which less scrupulous parties would not fail 
to engage. Knowing that the court before 
which proceedings arc brought has of its own 
motion to establish the existence of a jurisdic­
tion clause, if it was considered that it could 
not, however, rule on the clause's validity, it 
would be very easy for a party wishing, for 
example, to slow down the proceedings to 
make up the existence of such a choice of 
jurisdiction in order to achieve its purpose. It 
is clear that the system established by the 
Convention could not favour such practices. 
52. In my opinion, therefore, the court before 
which the matter is brought, whether or not 
it is the court designated in the jurisdiction 
clause, is competent to rule on its validity. 
53. As regards the issue, also dealt with in 
the seventh question, of the extent of review 
over this clause by the court seised, this docs 
not seem to me to require detailed consider­
ation. It is sufficient to accept that, as the 
court seised is competent to rule on the 
validity of the clause, this review can also 
extend to all aspects affecting this validity, set 
out under Article 17. These are in fact the 
points raised in the subsequent questions, 
concerning the consent of the parties to the 
clause, the existence of a usage in interna­
tional trade or commerce and the parties' 
awareness of the usage. 
33 — Benineasa, cited above, paragraph 31, which refers to Case 
C-214/89 Powell Dtiffryn v Péteréit ŕ[1992] ECR 1-1745, 
paragraph 37), where this principle haa already been stated. 
34 — Paragraph 174. 
I-1611 
OPINION OF MR LÉGER — CASE C-I59/97 
54. I therefore consider that, in reply to the 
seventh question, it should be stated that the 
court seised, whether or not it is the court 
designated in the clause conferring jurisdic­
tion, is competent to rule on the validity of 
the clause in relation to the conditions set out 
under Article 17. 
II — The consent of the parties to the jurisdic­
tion dause (first and eleventh questions and 
the first part of the second question) 
55. One of the central concerns of the Corte 
Suprema di Cassazione seems to be on the 
point whether, as was the case prior to the 
amendment made in 1978, the application of 
Article 17, since it now refers to usages, 
always presupposes the need to check that 
the parties agreed to the jurisdiction clause. 
56. That is the purpose of the very detailed 
first question, to which the Court has in the 
meantime, as we shall see, logically given an 
affirmative response. Then, in relation to the 
first part of the second question, as well as 
the eleventh question, I will examine who are 
the 'parties' from which such consent is 
required, in a situation such as in the present 
case, where the parties which originally con­
cluded and/or signed the bill of lading are not 
necessarily those who rely on it or against 
whom it is invoked subsequently. 
57. The first question is worded in these terms: 
'In the case-law of the Court of Justice relating 
to the original wording of Article 17, refer­
ence has been made to the need to ascertain 
and protect the actual will of the parties with 
regard to the jurisdiction clause by means of 
the requirements laid down by that provision 
in respect of the validity of such clauses; that 
is also the case where the clause is adjudged 
valid, when the bill of lading containing the 
clause comes within the framework of a con­
tinuing business relationship between the par­
ties, and it is thereby established that the rela­
tionship is governed by the general terms and 
conditions (drawn up by one of the parties, 
namely the carrier) containing that clause (see 
Case 71/83 Tilly Russ v Nova [1984] ECR 
2417, which cites earlier judgments under­
lining the need for the consent of the parties 
to be clearly and precisely demonstrated). 
However, in light of the insertion into the 
new wording of the provision of the refer­
ence to usage, which is prescriptive (and thus 
unconnected to the will of the parties, at least 
so far as specifically concerns a particular 
contract), the question arises whether the 
requirement of (actual) knowledge, or of lack 
of awareness arising out of negligent and 
inexcusable ignorance, is sufficient in view of 
the consistent incorporation (in all agree­
ments similar to that in issue) of the jurisdic­
tion clause. The question arises, in other 
words, whether it is any longer necessary to 
ascertain the will of the parties, despite the 
I -1612 
CASTELLETTI v TRUMPY 
fact that Article 17 uses the word "con­
cluded", which implies an expression of will 
and thus "commercial" usage (customary 
clauses).' 
58. First of all, the purpose of the provision 
in question is to provide for a head of volun­
tary prorogation of jurisdiction: the authors 
of the Convention intended only the will of 
the parties to be capable of forming a deroga­
tion from Articles 2, 4 and 5. The require­
ment for their consent to this derogation is 
thus inherent in spirit of Article 17. 
59. Moreover, this is echoed in the Jenard 
Report, which states that: '[clauses conferring 
jurisdiction] will be taken into consideration 
only if they are the subject of an agreement, 
and this implies the consent of all the par-
tics', 35 which the Court has taken up in the 
following terms, in emphasising that 'by 
making [the validity of clauses conferring 
jurisdiction] subject to the existence of an 
"agreement" between the parties, Article 17 
imposes on the court before which the matter 
is brought the duty of examining, first, whether 
the clause conferring jurisdiction upon it was 
in fact the subject of a consensus between the 
parties.' 36 
60. In accordance with the purpose of this 
provision, the Court found, in its recent 
judgments given in the context of proceed­
ings for which the Convention in its version 
prior to the amendment made in 1978 was 
applicable, that 'the requirements set out in 
Article 17 governing the validity of jurisdic­
tion clauses must be strictly construed since 
the purpose of Article 17 is 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 Convention, and that their con­
sent is clearly and precisely demonstrated.' 37 
To this end, that is to say 'In order to decide 
whether the conditions laid down in Article 
17 arc satisfied', the Court endeavoured to 
consider 'separately whether the agreement of 
the parties to the choice of jurisdiction was 
expressed in the form of a written agreement 
or in the form of an oral agreement evidenced 
in writing.' 38 
61. The requirement of the consent of the 
parties to the jurisdiction clause still seems to 
me to affect the validity of the latter under 
Article 17, since the amendment made in 1978. 
The reference to usages can only mean that 
the parties could in future find themselves 
confronted by a clause to which they would 
not have agreed. 
35 — Jenard Report, p. 37. 
36 — Estasis Salotti, ibid., paragraph 7. 
37 — Tilly Russ, ibid., paragraph 14, which refers to the decisions 
in Estasis Salotti and Scgoura, ibid., and Case 784/79 Porta-
Leasing v Prestige International [1980] LCR 1517. 
38 — Ibid., paragraph 15. 
I -1613 
O P I N I O N O F MR LÉGER — CASE C-159/97 
62. It is true, however, as results from the 
Schlosser Report, that the authors of the 1978 
Accession Convention wished to reduce the 
excessive formalism that the old version of 
Article 17, in requiring in every case written 
confirmation of this consent, tended to pro­
mote. 
63. In doing this, however, only a 'relaxation 
of the formal requirements' was involved, to 
adapt Article 17 to the conditions of interna­
tional trade, since 'the requirement that the 
other party to a contract with anyone 
employing general conditions of trade has to 
be given written confirmation of their inclu­
sion in the contract before any jurisdiction 
clause in those conditions can be effective is 
unacceptable in international trade. Interna­
tional trade is heavily dependent on standard 
conditions which incorporate jurisdiction 
clauses. Nor are those conditions in many 
cases unilaterally dictated by one set of inter­
ests in the market; they have frequently been 
negotiated by representatives of the various 
interests.' 39 
64. That is why the reference to usages in the 
new version of Article 17 means, according to 
the terms of this provision, 'in international 
trade or commerce', 'in a form ... which the 
parties are or ought to have been aware'. 
Thus, if it no longer refers to a written under­
taking of the parties, it is because it is pre­
sumed that, as professionals in the area of 
trade in question, they have a knowledge of 
the usages that are practised in it and tacitly 
adhere to them. 40 To facilitate the speed of 
transactions, there is thus an implied consent 
between the parties to these usages that is 
recognised in the new wording of Article 17, 
or, according to the words of Advocate Gen­
eral Tesuaro, 'a presumption of actual con­
sensus'. 41 
65. The Court adopted this analysis in MSG, 
in finding that the 'relaxation incorporated in 
Article 17 by the 1978 Accession Convention 
does not mean that there is not necessarily 
any need for consensus between the parties 
on a jurisdiction clause, since it is still one of 
the aims of that provision to ensure that there 
is real consent on the part of the persons con­
cerned' 42 and concluding from that, 'in the 
light of the amendment made to Article 17 by 
the 1978 Accession Convention, consensus 
on the part of the contracting parties as to a 
jurisdiction clause is presumed to exist where 
commercial practices in the relevant branch 
of international trade or commerce exist in 
this regard of which the parties are or ought 
to have been aware.' 43 
66. In reply to the first question, it should be 
explained to the national court that, notwith­
standing the relaxation of the conditions of 
39 — Schlosser Report, paragraph 179. 
40 — The absence of an express reference to written form also 
allows the validity or non-written forms to be accepted, 
which may be recognised by practices of international trade 
or commerce, such as a mere oral agreement, or a customary 
gesture, like a handshake. 
41 — Opinion of Advocate General Tesuaro in the MSG case, 
cited above, paragraph 25. 
42 — MSG, cited above, paragraph 17. 
43 — Ibid., paragraph 19, my emphasis. 
I -1614 
CASTELLETTI v TRUMPY 
form in 1978, the actual consent of the par­
ties to the jurisdiction clause is still required 
for the purposes of the validity of the clause 
under Article 17 of the Convention. This 
consent is presumed to exist where such a 
clause constitutes a usage, in the relevant 
branch of trade, adopted in a form that the 
parties are, or ought to have been, aware of. 
67. Before defining the notion of 'usage' and 
'the parties' awareness', which other ques­
tions of the national court invite the Court to 
do, the 'parties' whose consent to the clause 
is thus presumed to exist still need to be 
determined. This, it seems to me, is the pur­
pose of the first part of the second question, 
as well as the eleventh question. 
68. The eleventh question 'concerns the cir­
cumstances in which insertion of the clause in 
question in a standard form, not signed by 
the party not involved in drawing it up, may 
be considered to be grossly unfair or even 
abusive'. 
69. 'The second question concerns the meaning 
of the expression "form which accords". The 
first aspect concerns the way in which the 
clause appears, that is whether it must neces­
sarily be in writing signed by the party who 
has it drawn it up and who has therefore 
expressed the intention of relying upon it — 
for example — by signing the bill of lading 
referring specifically to a clause which in turn 
refers to an agreement conferring exclusive 
jurisdiction, even in the absence of the signa­
ture of the other party (the shipper).' 
70. I will return to the aspect relating to the 
form of the clause, also raised by the Italian 
court in its questions, but I will concentrate 
for the moment on the examination of the 
enforceability of the clause against parties 
who, as in the present case, arc not those who 
originally concluded the bill of lading in which 
it is contained. 
71. In other words, does the notion of 'par-
tics' within the meaning of Article 17 only 
mean the 'original' parties, /. e., those at the 
origin of the clause, or docs it also mean the 
'parties' to the dispute, even third parties to 
the original agreement,M capable of being 
bound by an undertaking in which they did 
not take part? 
72. One would be tempted to state apriori as 
a principle that a jurisdiction clause, like any 
contractual stipulation, only binds the parties 
44 ·— In lhe circumstances ofthc present case, one of the parties 
to thedispute in tlie main proceedings is the agcnl of one of 
the original parties. The forwarding agent of the ship and of 
the carrier, respondent in the main proceedings, cannot thus 
be considered to be a third parly to the original bill of 
lading. The situation of the appellant in the main proceed­
ings, bearer of the bill of lading, is different. He may be, 
according to the applicable law, a third parly to the initial 
agreement (sec, in this regard, the decision in Tilly Rim). 
I -1615 
O P I N I O N O F MR LÉGER — CASE C-159/97 
that have agreed it and those parties only. 
This principle may be even more appropriate 
as regards arbitration and jurisdiction clauses 
in so far as they fall outside the normal rules. 
73. There are, however, situations in which 
such a clause will have effect as against per­
sons who have not signed it .4 5 A certain 
number of judgments illustrate this point. 
74. First of all there is the judgment in Ger-
ling and Others, 46 which, although given in 
a specific context, 47 recognised that the ben­
eficiary of a stipulation in favour of a third 
party, while not being a party to the original 
agreement, can rely on it on the basis of 
Article 17 of the Convention in its original 
version. 4S 
75. Even more illuminating is the Court's 
judgment in Powell Duffryn, cited above, 49 
from which it follows that the jurisdiction 
clause contained in the statutes of a company 
is enforceable against all the shareholders — 
those who took part in the vote on the stat­
utes, whether voting for or against the clause, 
and also all subsequent shareholders, irrespec­
tive of how their shares were acquired. 
76. Finally, it should also be accepted that, if 
the contract containing the clause was assigned, 
the clause could be invoked for the benefit of 
or against any assignee who, by definition, 
did not give his consent at the time of conclu­
sion of the contract. 
77. Accordingly, in Tilly Russ, the Court ruled 
that a clause contained in a bill of lading and 
adjudged to be valid as between the shipper 
and the carrier was enforceable against third 
parties holding the bill of lading, since, under 
the applicable national law, the bearer of the 
bill of lading succeeded to the shipper's rights 
and obligations. 
78. The Court considered that the third party 
could not escape the jurisdiction provision in 
the bill of lading on the ground that he did 
not give his consent to the latter, since, in this 
situation, 'acquisition of the bill of lading 
could not confer upon the third party more 
rights than those attaching to the shipper 
under it. The third party holding the bill of 
lading thus becomes vested with all the rights, 
and at the same time becomes subject to all 
45 — Sec, in favour of this extension of the effects of a jurisdic­
tion clause to certain categories of third parties, Gothot P., 
and Holleaux D., ibid,, paragraph 186. 
46 — Case 201/82 Gerling Konzern Speziale Kreditversicherung* 
and Others v Amministrazione del Tesoro dello Stato [1983] 
ECR 2503, paragraph 20. 
47 — This decision concerned the possibility for a third party to 
an insurance contract, benefiting from a stipulation in favour 
of a third party to the policy-holder, to invoke a jurisdic­
tion clause against the insurer, a clause based on the need to 
protect the insured, as the person in a weaker economic 
position. 
48 — In support of a general extension of the possibility for any 
beneficiary to invoke the clause in his favour, see Gaudemet-
Tallon, H., ibid., paragraph 141. 
49 — In particular, paragraphs 27 to 29. 
I -1616 
CASTELLETTI v TRUMPY 
the obligations, including those relating to the 
agreement on jurisdiction.' 50 
79. The fact that, as in the present case, wc 
have not one (the third party holding the bill 
of lading) but two parties not privy to the 
original contract — bearing in mind that the 
dispute in the main proceedings is between 
the third party holding the bill of lading and 
the agent of the ship and of the carrier over a 
clause agreed between an Argentinian shipper 
and a Danish carrier — is not such as to 
change the basic outcome set out above. 5I 
80. The reasoning that should be adopted by 
the national court, under the Court's case-
law, should therefore be broken down into 
two stages. 
81. In order to ascertain that the jurisdiction 
clause binds the third party holding the bill 
of lading to the agent of the ship, the national 
court must first of all satisfy itself that the 
original parties — shipper and carrier — con­
sented to the clause. Wc have seen that, in 
reality, under the wording of Article 17 fol­
lowing its amendment in 1978, the reference 
to 'usages in international trade or commerce' 
known to the parties allows it to be presumed 
that they consented to the clause. 
82. The court before which the matter is 
brought must then ascertain that the third 
party to the original contract who invokes 
the clause, or against whom the clause is 
invoked, has, by virtue of the applicable 
national law, succeeded to the rights and obli­
gations of one of the original parties. If this 
is clearly the case, his consent to the clause 
has to be neither verified nor presumed under 
Article 17. 
83. It is for the Italian court in the present 
case to ascertain in particular that the latter 
condition is satisfied, before going on to hold 
the clause in question to be applicable between 
the appellant and the respondent in the main 
proceedings. 
84. Thus, in my opinion, the parties whose 
consent to the jurisdiction clause is presumed 
under Article 17, in so far as it refers to usages, 
arc the parties having initially concluded the 
agreement in relation to which it was adopted. 
85. As regards the relationship between the 
agent of the ship and of the carrier and the 
third party holding the bill of lading, 
50 — Tilly Russ, ibid., paragraph 25. 
51 — I should also add that, although this is not covered in the 
order for reference, it is likely that the agent, the respondent 
in the main proceedings, is considered by the national court 
to be the carrier's agent. In this case, he cannot be consid­
ered to be a third party to the bill of lading and the factual 
situation would be identical to that in Tilly Rusr. only one 
of the two parties to the dispute would have to be consid­
ered as a third party to the bill of lading. 
I -1617 
OPINION OF MR LÉGER — CASE C-159/97 
Article 17 of the Convention applies where 
the jurisdiction clause was adjudged to be 
valid between the shipper and the carrier, and, 
under the applicable national law, the third 
party bearer, in acquiring the bill of lading, 
and the agent, by virtue of his capacity, suc­
ceeded to the rights and obligations of the 
shipper and the carrier respectively. 
I l l — 'Form which accords with usages in 
international trade or commerce ' (second ques­
tion, second and third limbs, fourth, eighth, 
tenth and ninth questions) 
86. Under the amendment made to Article 17 
by the 1978 Accession Convention, the con­
sensus of the contracting parties, capable of 
binding, as we have seen, third parties to the 
contract, is presumed to be established where 
there exists in this regard commercial usages 
in the branch of international trade or com­
merce concerned, usages of which the parties 
are aware or ought to have been aware. The 
Corte Suprema di Cassazione invites the Court 
to define more precisely the meaning and 
scope of the reference to 'usages' in interna­
tional trade or commerce, by five questions 
that I "will examine in turn. 
87. I must point out first that the Court's 
decision in MSG, cited above, delivered after 
this reference was made, clarifies a number of 
aspects of the questions submitted to the 
Court. 
88. I would also observe that it is not for me 
or for the Court to determine whether, in the 
present case, the insertion of a clause confer­
ring jurisdiction on the High Court of Justice 
on the reverse side of a pre-printed bill of 
lading constitutes a usage within the meaning 
of Article 17 of the Convention. Our role can 
only be to provide guidance to the national 
court, which, in the final analysis, must, in 
the light of the interpretative elements pro­
vided to it, decide whether there is a usage 
within the meaning of this provision. 
'Forms which accord' 
89. The meaning of 'form which accords', 
first of all, is the subject of paragraphs 2 and 
3 of the second question, which 'concerns the 
meaning of the expression "form which 
accords". The second aspect of this question 
consists in establishing whether it is necessary 
for the jurisdiction clause to stand out promi­
nently on its own within the contract as a 
whole, or whether it is sufficient (and there­
fore of no consequence as regards the validity 
of the clause) for it to be inserted amongst 
numerous other clauses drawn up in order to 
regulate the contract of carriage in every 
respect. 
The third aspect relates to the language in 
which the clause is drawn up, that is to say, 
whether it must be in some way related to the 
nationality of the parties to the contract or 
I -1618 
CASTELLETTI v TRUMPY 
whether it is sufficient for it to be a language 
regularly used in international trade or com­
merce.' 
90. On the latter point, the Court has already 
held, in Elefanten Schuh S2, that the validity 
of a clause conferring jurisdiction cannot be 
put into question simply because the language 
in which it is formulated is not that stipulated 
by the national law of a Contracting State. 
91. It should be added that, in accordance 
with the freedom afforded by the wording of 
Article 17 to the expression of the will of the 
parties, it cannot be considered that it pre­
scribes either the use of a particular language 
or even the use of a language having a con­
necting factor with the parties. It is, in this 
regard, for the national court to refer to the 
usages in the branch of international trade or 
commerce in question, S3 in order to deter­
mine whether, in the present case, the wording 
of a jurisdiction clause in English, like the 
rest of the bill of lading in which it is con­
tained, constitutes a form consistent with the 
usages in the matter. 
92. In my view, no further information can 
be provided in response to the second aspect 
of this second question. The question of the 
placing of a jurisdiction clause in a prominent 
position compared with the other clauses also 
depends on the usages followed in the branch 
of trade concerned. 
93. Certainly, as the Schlosser Report states, 
the contracting party should be protected 
'from the danger of finding himself inadvert­
ently bound by standard forms of agreement, 
containing jurisdiction clauses without real­
ising it.' M 
94. However, on the one hand, it should be 
noted that the disputed clause is, in the present 
case, printed in the same type as the other 
clauses which it follows. Although it does not 
therefore stand out, it is not concealed cither. 
95. Moreover, as wc shall sec, the third case 
mentioned in the second sentence of the first 
paragraph of Article 17 governs the relations 
of well-informed business people aware of, or 
who 'ought to have been aware of', the usage 
in question. If the Corte Suprema di Cas­
sazione were to find that the form of the 
clause corresponds with that of the usage in 
the branch in question, the parties' awareness 
of this usage would suffice to make the form 
in question in conformity with the require­
ments of Article 17. 
52 — Case 150/80 Elefanten Schuh v Jncqmain [1981] ECR 1671, 
paragraph 29. 
53 — The expressions 'usages' and 'branch of international trade 
or commerce' arc the subject of the questions examined 
hereafter. 54 — Schlosser Report, paragraph 179. 
I - 1619 
O P I N I O N O F MR LÉGER — CASE C-159/97 
96. These various elements are precisely the 
subject of the questions that I will consider 
hereafter, 
97. In reply to the second question, con­
cerning the 'forms which accord' within the 
meaning of Article 17, I can only refer the 
national court to the usages followed in the 
relevant branch of international trade or com­
merce, without being able to prescribe apriori 
the observance of the forms provided for 
under the provisions of the applicable law. 
Usage 
98. By the fourth question, the Court is asked, 
in relation to the process by which the usage 
comes into being, whether 'consistent incor­
poration of the clause in bills of lading issued 
by trade associations or a significant number 
of maritime transport undertakings is suffi­
cient or whether it must be demonstrated that 
since users of such transport (whether traders 
or otherwise) have not made any observa­
tions or expressed any reservations regarding 
the consistent incorporation of the clause, 
they have tacitly acquiesced to the conduct of 
the other party, so that there may no longer 
be considered to be a dispute between them.' 
99. It is thus the process by which the usage 
comes into being within the meaning of Article 
17 that the Court is asked to explain. 
100. Whilst the reasons that were put for­
ward at the time of the amendment in 1978 
are known — the Schlosser Report empha­
sises that 'the interpretation of that Article, 
which many national courts have shown a 
tendency to follow, does not cater adequately 
for the customs and requirements of interna­
tional trade. These are the factors behind the 
relaxation of the formal provisions for inter­
national trade in the amended version of 
Article 17 ' 5 5 — no definition or under­
standing of the notion of usage to which ref­
erence is now made appears in the text of the 
report. 
101. It was not until 1989, upon the amend­
ment made by the adoption of the Conven­
tion of San Sebastian, that the text of Article 
17 specified that this usage must be 'widely 
known to, and regularly observed by, parties 
to contracts of the type involved in the 'par­
ticular trade or commerce concerned.' 56 The 
Report concerning the Lugano Convention, 57 
drawn up in this regard in the same terms, 
explains the new wording thus: 'even in inter­
national trade or commerce, it is not suffi­
cient that an agreement conferring jurisdic­
tion be in a form which accords with practices 
55 — Paragraph 179. 
56 — This wording came from Article 9(2) of the Vienna Conven­
tion of 11 April 1980 on International Contracts for the Sale 
of Goods. See the Report of Messrs. Almeida Cruz, Desames 
Real and Jenard on the Convention on the Accession of the 
Kingdom of Spain and the Portuguese Republic to the Con­
vention on Jurisdiction and the Enforcement of Judgments 
in Civil and Commercial Matters (OJ 1990 C 189, p. 35, 
paragraph 26). 
57 — Report of Messrs. Jenard and Möller on the Convention on 
Jurisdiction and the Enforcement of Judgments in Civil and 
Commercial Matters, done at Lugano on 16 September 1988 
(OJ 1990 C 189, p. 57, paragraphs 55 to 61). 
I - 1620 
CASTELLETTI v TRUMPY 
(or a usage) in such trade or commerce of 
which the parties are or ought to have been 
aware. It is moreover required that the usage 
shall be, on the one hand, widely known in 
international trade or commerce and, on the 
other, regularly observed by parties to con­
tracts of the type involved in the particular 
trade or commerce concerned.' 5 8 
102. Although the reports throw no more 
light on the meaning of the notion of usage, 
they nevertheless allow it to be said, first, that 
the taking into account of these usages intro­
duced in 1978 can obviously only concern 
agreements made between professional traders 
in international trade or commerce. The con­
tinuous reference to 'international commer­
cial practice' and other 'commercial transac­
tions', particularly in the Schlosser Report, 
cannot be understood any other way. There­
fore, the reference in the wording of the 
fourth question to 'users (whether traders or 
not)' cannot be considered relevant: only the 
'operators in international commerce' benefit 
from this relaxation as regards the forms of 
clauses conferring jurisdiction. 5 9 
103. It should also be emphasised that the 
meaning of the notion of usage cannot be left 
to be determined by each body of national 
law. It will be recalled that 'the principle laid 
down by the case-law ... according to which 
the concepts used in the Convention, which 
may have a different content depending on 
the national law of the Contracting States, 
must be interpreted independently, by refer­
ence principally to the system and objectives 
of the Convention, in order to ensure that the 
Convention is uniformly applied in all the 
Contracting States.' 6 0 The same should also 
apply to the notion of 'usage', within the 
meaning of Article 17. 
104. So, in reality, the question of the deter­
mination of the meaning of 'usage' is no 
longer a novel matter for the Court. The MSG 
case concerned a clause conferring jurisdic­
tion printed on a commercial letter of confir­
mation as well as on a scries of invoices paid 
without contestation. When asked to rule on 
the validity of such a clause from the point of 
view of Article 17 of the Convention, the 
Court first of all stated that: 'Whilst it is for 
the national court ... to find whether there 
was a practice [Trench: "usage"] ... the Court 
should nevertheless indicate the objective evi­
dence which is needed in order to make such 
a determination.' 6 1 
105. The Court went on to state that: 'There 
is a practice [French: "usage"] in the branch 
of trade or commerce in question in particular 
where a particular course of conduct is 
58 — Ibid., paragraph 58. 
59 — In this regard also, sec, for example, Gothot, P., Hollcaux, 
D., and Bćraudo, J.-P, cited by Alexandre, D., ibid., No 257. 
60 — Benincasit, ibid., paragraph 12, which refers, notably, to the 
judgments in Case 150/77 Bertrand v Paul Ott [1978] ECR 
1431, paragraphs 14 to 16 and 19, and Case C-89/91 Sbcanon 
Lehmann Uunon v TVB [1993] LCR 1-139, paragraph 13. 
61 — MSG, ibid., paragraph 21. 
I-1621 
OPINION OF MR LÉGER — CASE C-159/97 
generally and regularly followed by operators 
in that branch when concluding contracts of 
a particular type.' 62 
106. In so doing, the Court, anticipating, it 
might be said, the terms of the Convention of 
• San Sebastian, which was not applicable at 
the time to the facts at issue, and which in 
1989 explained that the usage to which refer­
ence is made should be 'widely known to, 
and regularly observed by, parties to contracts 
of the type involved in the particular [inter­
national] trade or commerce concerned,' relied 
broadly on that formula, 
107. Therein lies the answer to the fourth 
question, whereby it should be considered 
that a usage comes into being when a par­
ticular course of conduct is generally and 
regularly followed by operators in the branch 
concerned when concluding contracts of a 
particular type. 
108. The eighth question asks the Court to 
state: 
'whether the fact that many shippers and/or 
endorsees of bills of lading have challenged 
the validity of the clause by bringing an action 
before a court other than that designated by 
the clause itself is indicative of the fact that 
usage regarding the insertion of the clause in 
forms has not become well established.' 
109. In inquiring about the consequences to 
be drawn from actions brought to challenge 
a practice (the incorporation of jurisdiction 
clauses in bills of lading), the Italian court 
necessarily recognises that this practice is regu­
larly followed, since it has-to be brought 
before the courts in order to dispute its appli­
cation. It therefore accepts that such a prac­
tice does constitute a usage. 
110. Whether this usage then becomes the 
object of disputes as to its application or even 
its very existence, to a greater or lesser extent, 
on a local, national, or international level (all 
elements that the order for reference does not 
allow to be determined) does not deprive it of 
its nature as a usage if it continues to be regu­
larly followed in the branch of trade or com­
merce in question. 
111. One could in fact say that the very prin­
ciple of jurisdiction clauses in bills of lading 
is controversial in the field of maritime trade, 
to such an extent that the Hamburg Rules, 
mentioned above, go so far as to suppress 62 — Ibid., paragraph 23. 
I - 1622 
CASTELLETTI v TRUMPY 
their use. 63 However, so long as these argu­
ments have not been resolved, that is, in effect, 
notwithstanding the criticisms to which they 
are subjected, so long as the jurisdiction 
clauses at issue continue to be the practice 
generally and regularly followed by traders 
within the particular trade or commerce con­
cerned when contracts of the same type are 
concluded, they will still retain their status as 
a usage. 
112. My proposed response to the eighth 
question is therefore that, merely because a 
practice constitutive of a usage within the 
meaning of Article 17 of the Convention is 
contested, this cannot cause it to cease to 
constitute a usage. 
113. Regarding the meaning of usage for the 
purposes of Article 17, the object of the tenth 
question is to determine whether or not 'the 
usage in question may derogate from manda­
tory statutory provisions of individual States, 
such as, in Italy, Article 1341 of the Civil 
Code which, with regard to the general con­
tractual terms and conditions drawn up by 
one of the parties, provides that, in order for 
the usage to be valid, the other party must be 
or ought to have been aware of it and pro­
vides that clauses laying down particular limi­
tations to or derogating from the jurisdiction 
of the courts must be specifically approved in 
writing'. 
114. It seems to me that this question has 
two aspects. 
115. The first seeks to determine whether it 
is permissible, within the framework of Article 
17 of the Convention, to invoke a usage which 
would derogate from the legislative provi­
sions, applicable in principle, relating to the 
form of clauses conferring jurisdiction. The 
response can only be affirmative, to my mind, 
since this is the entire purpose of Article 17 
of the Convention: to give to the parties' 
wishes a value over and above any other rule 
applicable in principle, and in particular to 
the ordinary statutory provisions. 
116. Article 1341 of the Italian Civil Code 
cannot therefore be invoked in order to sub­
ject the validity of the clause in question to 
mandatory provisions of national law in addi­
tion to those laid down in Article 17: 'Con­
tracting States are not free to lay down formal 
requirements other than those contained in 
the Convention'. M 
117. The second aspect raised by this ques­
tion is linked to that, examined hereafter in 
connection with the twelfth, fifth, thirteenth 
and fourteenth questions, of the parties' aware­
ness of the usage in question. 63 — Article 21 of Ulis Convention —which prevails over the 
rules of the Brussels Convention for parties domiciled in a 
State that is a member of this United Nations Convention 
— provides for a specific regime of jurisdiction and only 
allows, in paragraph 5, agreements electing jurisdiction after 
the occurrence of a dispute arising from a contract for the 
carriage of goods by sea. 64 — Sec, for example, Elefanten Schub, cited above, paragraph 26. 
I -1623 
O P I N I O N O F MR LÉGER — CASE C-159/97 
International trade or commerce 
118. The MSG judgment, cited above, also 
contains trie answer to the ninth question 
from the Corte Suprema di Cassazione, con­
cerning the geographical delimitation of the 
usage to which reference is made in Article 
17. This question asks: 
'whether the usage must exist in all the coun­
tries of the European Community, or whether 
the expression "international trade or com­
merce" is intended to mean that it is suffi­
cient for the usage to be practised in those 
countries which, in the context of interna­
tional trade or commerce, have traditionally 
played a prominent role'. 
119. The reference to the form which accords 
with 'usages in international trade or com­
merce' does not in reality follow from either 
of the two alternatives put forward by the 
referring court. 
120. Since '... whether a practice [French: 
"usage"] exists must not be determined by 
reference to the law of one of the Contracting 
Parties', 65 the reference to 'international trade 
or commerce' cannot be understood as refer­
ring to specific countries, such as those which 
have a dominant position in international trade 
or commerce, or those requiring a convergent 
practice in all the States party to the Conven­
tion. 
121. The Court considers that the existence 
of a usage should 'not be determined in rela­
tion to international trade or commerce in 
general, but [in relation] to the branch of trade 
or commerce in which the parties to the con­
tract are operating'. 66 
122. It would seem that this consideration is 
enough to dispel any possibility of national 
links. 
123. The problem does not appear to me to 
be whether the national court should take 
account of a usage accepted in certain coun­
tries, rather than in the chosen country of 
jurisdiction for instance, or in certain coun­
tries, rather than in those which have an 
objective link with the dispute. 67 
124. To the extent that the application of 
Article 17 necessarily presupposes an inter­
national factual context, 6S it would first of all 
be clearly inappropriate to refer to what is 
65 — MSG, cited above, paragraph 23. 
66 — Ibid., paragraph 23. 
67 — See, however, the commentary of Gaudemet-Tallon, H. on 
MSG, cited above, in Revue critique de droit international 
privé, 1997, p. 572, 573, for whom to deny the determina­
tion of the usage by reference to the law of one the Con­
tracting States 'risks placing the national court in difficult 
situations'. 
68 — See paragraph 25 in fine of the present opinion. 
I - 1624 
CASTELLETTI v TRUMPY 
usage in one or other of the signatory States, 
since transnational situations arc precisely 
those envisaged. Nevertheless, if one were to 
investigate a 'connecting factor law' in order 
to determine whether, under that law, there is 
a usage, one would be accepting a step rejected 
by the Court in respect of the court chosen, 
for which, as I have recalled, the Court requires 
no connecting link with either the parties or 
the contract. 69 
125. That is why I consider that the reference 
made by the Court clearly covers a field of 
activity, that of 'the particular branch of trade 
or commerce in which the contracting parties 
operate', and not a national practice. In cir­
cumstances such as those in the present case 
for example, this means referring to usages 
followed in the branch of transport, or more 
specifically, as the case may be, in the branch 
of transport of consignments of fruit by sea. 
126. In other words, the referring court will 
not in principle need to investigate, as its 
question suggests, whether it is the practice in 
the United Kingdom, for instance, or in cer­
tain other signatory States to the Convention, 
to put jurisdiction clauses on the reverse side 
of pre-printed bills of lading. On the other 
hand, the court will have to verify that such 
clauses do form a usage in the international 
carriage of consignments of fruit by sea. 
127. It is unlikely that, in conducting this 
investigation, the court would find different 
usages in the same trade. If, however, that 
were to be the case, the criterion of 'usage 
within the branch of trade or commerce in 
question' would have to be combined with 
the criterion of knowledge of the parties of 
the usage, so as to give preponderant weight 
to the criterion based on usages which would 
not be unfamiliar to the contracting parties. I 
will return to this point when examining the 
questions relating to the parties' awareness of 
the usage in question. 
128. Therefore, in response to the ninth ques­
tion, it should be stated that the reference to 
usages in Article 17 of the Convention docs 
not have any geographical or territorial char­
acter whatsoever, but, on the contrary, covers 
a field, of the trade or commerce in question: 
the 'particular trade or commerce in which 
the parties operate'. In this regard, it is for 
the national court to satisfy itself that the 
form of the jurisdiction clause corresponds 
with a usage governing the field of interna­
tional trade or commerce in which the con­
tracting parties operate. 
129. It is for the national court, on the basis 
of the answers given for the purpose of 
defining the notion of usage referred to in 
Article 17, to determine whether, in the cir­
cumstances of the case, the reference to a 
jurisdiction clause, such as the one which it 
has to examine, on the reverse side of a bill 
of lading, corresponds to a 'form which 
accords with usages of international trade or 
commerce'. 69 — Ibid., paragraph 40. 
I -1625 
O P I N I O N O F MR LÉGER — CASE C-159/97 
130. If the court decides that this is not the 
case, the other questions are hardly of interest, 
since Article 17 of the Convention, in so far 
as it relates to usages, will no longer be appli­
cable. It will then be for the court to verify, 
if need be, compliance with the other condi­
tions of form of jurisdiction clauses permitted 
by the provision of the Convention in ques­
tion. It would seem, though, that the Corte 
Suprema di Cassazione has already excluded 
the existence of a written agreement or an 
oral agreement evidenced in writing. 70 
131. Should that court feel, on the other 
hand, that such a usage exists, the other ques­
tions, relating to the parties' awareness of it, 
will have to be considered. 
IV — The parties' awareness of the usage in 
question (thirteenth, fourteenth, twelfth, fifth 
and sixth questions) 
132. Five of the questions submitted to the 
Court concern the last condition for the 
validity of a jurisdiction clause within the 
meaning of the Article 17 at issue: the expres­
sion of the parties' awareness of the usage in 
question. 
133. I will first try to identify the party 
whose awareness of such a usage is required 
(thirteenth question), before considering in 
detail the degree of awareness required of that 
party (fourteenth, twelfth and fifth ques­
tions), in order to ascertain, finally, whether 
the fact that the clause at issue amounts to an 
exemption clause is not evidence of the lack 
of awareness of the usage in question (sixth 
question). 
134. The thirteenth question 'involves iden­
tifying the person who is or ought to have 
been aware of the usage; whether it must be 
the original shipper, even if he is a national of 
a non-Contracting State (such as, in this case, 
Argentina), or whether it is sufficient for it to 
be the endorsee of the bill, who is a national 
of a Contracting State (in the present case, 
Italy)'. 
135. The question of identifying the party 
whose awareness of the usage is required is 
actually linked to that, already examined, of 
identifying the party whose consent to the 
clause affects its validity. 
136. I have suggested to the Court, pursuant 
to the Tilly Russ judgment, cited above, 71 
that the clause in question should be held to 
be enforceable against parties who have suc­
ceeded, according to the applicable national 
law, to the rights and obligations of the 
70 — Paragraph 15 of the present Opinion. The Court has in fact 
held that the mere printing on the reverse side of a bill of 
lading of a jurisdiction clause does not satisfy the condition 
of a 'written agreement' within the meaning of Article 17 of 
the Convention {Tilly Russ, ibid., paragraph 16). However, 
such a clause may be valid if it was the subject of an oral 
agreement confirmed in writing (ibid., paragraph 17). It 
would also be valid in the context of regular commercial 
dealings between the parties (ibid., paragraph 18). 71 — Paragraphs 68 to 85 of this Opinion. 
I - 1626 
CASTELLETTI v TRUMPY 
original parties, where their consent to the 
clause may be presumed. 
137. Similarly, the parties whose awareness of 
the usage is required must, it seems to me, 
necessarily be those having originally con­
cluded the clause in question. Such a require­
ment cannot apply to each successor, of which 
there may be many, since a bill of lading can 
pass from hand to hand. 
138. As the commentators state 'it is difficult 
to accept that the formal rules of the first 
paragraph of Article 17 are of such primary 
importance that they should be respected not 
only when agreeing the choice of jurisdiction, 
but also each time that one of the parties 
assigns to a third party the benefit of the con­
tract containing a jurisdiction clause'. 72 
139. Once again, where a third party suc­
ceeds to the rights and obligations of one of 
the original parties to an agreement con­
taining a clause electing a court by virtue of 
the applicable law, the effects of this clause 
are transferred to this beneficiary, without its 
being necessary systematically to check com­
pliance with each of the elements affecting the 
validity of the clause under the Convention. 
140. The court still needs to ascertain that the 
rights and obligations of the original party 
have actually been transferred to the party 
seeking to rely on them, according to the rel­
evant national provisions. 
141. Therefore, it is sufficient to note that the 
parties whose awareness of the usage is 
required arc the same as those whose consent 
to the clause affects its validity. Moreover, 
this follows expressly from MSG, in which it 
is stated that: '... consensus on the part of the 
contracting parties as to a jurisdiction clause 
is presumed to exist where commercial prac­
tices in the relevant branch of international 
trade or commerce exist in this regard of 
which the parties arc or ought to have been 
aware'. 7i 
142. As regards the fact that one of the 
original parties to the agreement was not a 
national of a State party to the Convention, 
this has no bearing on the question now being 
considered. The Convention makes no refer­
ence at all to the nationality of the persons to 
which it applies. On the other hand, impor­
tance is, of course, attached to the criterion of 
domicile for determining its application and 
the jurisdictions it establishes. As I have 
already pointed out, the application of Article 
17 is precisely dependent on that criterion of 
domicile within a Contracting State. 74 Since 
72 — Gothot, P., and Hollcaux, D., cited above, paragraph 186. 
73 — Paragraph 19, my emphasis. 
74 — Paragraph 25 of this Opinion. 
I - 1627 
OPINION OF MR LÉGER — CASE C-159/97 
the Danish carrier was domiciled within a 
signatory State, the Argentinian nationality of 
the other party does not prevent the ascer­
tainment, for the purposes of the application 
of Article 17, of its knowledge of the usage in 
question, as in the case of the Danish carrier. 
143. This approach could be criticised for its 
lack of realism. I do not underestimate, how­
ever, the difficulties for the court seised to 
find a co-contracting party, as the case may 
be, as in this instance, who is a national of a 
third-party State, then to determine that par­
ty's awareness or otherwise of the usage in 
question. Such an approach could greatly 
delay the procedure. However, it seems to me 
that the very wording of Article 17 suggests 
that this kind of difficulty could be easily 
avoided if it is not required that the usage 
always be known to the parties but it is 
enough that it 'ought' to be. 
144. The fourteenth question of the Corte 
Suprema di Cassazione is specifically directed 
at the clarification of this part of the wording 
of Article 17. It is 'concerned with whether 
the phrase "ought to have been aware" refers 
to a criterion of good faith and honesty when 
a particular contract was drawn up or to a 
criterion of ordinary care on the part of indi­
viduals who must be fully informed of cur­
rent practices in international trade, for the 
purposes of paragraph 9, above.' 
145. The Court's recent judgment in MSG, 
cited above, provides an answer to this 
question. The Court held that 'the actual or 
presumed knowledge [of] the usage by the 
contracting parties' could be established by 
two alternative methods: either by demon­
strating that the 'parties had on previous 
occasions entered into agreements or had 
already contracted with other parties within 
the considered sector', or 'where, in that 
sector, a particular course of conduct is suf­
ficiently well known because it is generally 
and regularly followed when a particular type 
of contract is concluded, with the result that 
it may be regarded as being a consolidated 
practice'. 75 
146. This last limb of the alternative in par­
ticular, explaining that awareness of the usage 
is presumed in the case of economic agents 
operating in the branch under consideration 
in which this usage is generally and regularly 
followed, should permit the referring court to 
determine whether the usage in question ought 
to have been known by the original parties. 
It can undoubtedly be likened to the concept 
of 'ordinary care', put forward by the refer­
ring court, which one expects of an operator 
familiar with this particular area of interna­
tional trade or commerce. I should also point 
out that it is precisely this notion of 'ordinary 
care' to which the Court has referred in pre­
vious judgments, in the case of clauses that 
the party concerned could or should have 
been aware of by exercising ordinary care, or 
of usages which he should or could have been 
aware of. 76 
75 — MSG, cited above, paragraph 24. 
76 — Estasis Salotti, Segoura and Tilly Russ, cited above, and Case 
313/85 Ivcco Fiat [1986] ECR. 3337. 
I -1628 
CASTELLETTI v TRUMPY 
147. Consequently, the questions about the 
ascertainment of parties' awareness of the 
usage are somewhat irrelevant, since Article 
17 creates an actual presumption of aware­
ness, which does not, by hypothesis, need to 
be verified. 
148. The first of these questions is the twelfth 
question, which 'involves ascertaining whether 
the party concerned was or ought to have 
been aware of the usage, other than with 
regard to the condition set forth in paragraph 
5, above, as regards the bill of lading itself, 
which contained numerous clauses appearing 
on the reverse (paragraph 2, above)'. 
149. Besides the second question, to which it 
also refers, 77 the fifth question 'concerns the 
form in which such consistent practice is 
publicised: must the form of bill of lading in 
which the jurisdiction clause appears to be 
lodged at a particular office (trade association, 
chamber of commerce, port authorities, and 
so on) for consultation or made public in 
some other way?' 
150. In the absence of specific indications, I 
presume that the Italian court is implicitly 
referring to the Court's judgment in Powell 
Duffryn, cited above, in which the Court held 
that 'when [a] company's statutes contain a 
clause conferring jurisdiction, every share­
holder is deemed to be aware of that clause 
and actually to consent to the assignment of 
jurisdiction for which it provides if the stat­
utes arc lodged in a place to which the share­
holder may have access, such as the scat of 
the company, or arc contained in a public 
register.' 7S 
151. The reference to the lodging of com­
pany statutes in a place accessible to the 
shareholders, or their mention in a public 
register, is easily explained in the circum­
stances of the case in point, where the share­
holders, independently of the mode of acqui­
sition of the shares, could have seen the clause 
at issue invoked against them. 
152. In referring to usages, Article 17 cannot, 
however, be read as meaning that, in order 
for a given usage to be taken into account, it 
systematically requires publicity, in a written 
form, of this practice regularly followed in 
the area at issue, within associations or spe­
cialised bodies. 
153. It is true that, normally, the form of the 
bills of lading used by shipping companies 
follow the guidelines issued by the interna­
tional organisations such as Bimco (Baltic and 
77 — Sec, in this regard, paragraphs 89 to 97 of this Opinion. 78 — Powell Duffryn, ibid., paragraph 28. 
I -1629 
OPINION OF MR LÉGER — CASE C-159/97 
International Maritime Conference), the ICS 
(International Chamber of Shipping) or by 
national associations such as Simprofrance 
(The French Committee for the simplification 
of international trade procedures). 79 
154. However any such publicity can be no 
more than a means by which to prove the 
existence of a usage. As it is, the Convention 
does not place any limitation on the means of 
proof that may be put forward in order to 
establish the existence of a usage. It is, more­
over, self-evident that the reference of the 
invoked usage in such lists can facilitate proof 
of its existence. 
155. The twelfth question is also related to a 
question of proof, outside the scope of Article 
17, which is for the national court alone, on 
the basis of the applicable law, to resolve. 
156. It remains for me to examine the sixth 
question, which 'concerns the validity of the 
clause, even where, by virtue of the substan­
tive rules applicable in the chosen court, it 
takes the form of a clause exempting the car­
rier from, or limiting, his liability.' 
157. In the absence of specific indications in 
the order for reference, I must presume that 
the referring court has in mind the situation 
in which, in order to justify the non-
enforceability of the clause against him, one 
of the parties invokes as a defence his lack of 
awareness of the usage in question, arguing 
that he would never have consented to a 
clause which would have been unfavourable 
to him. 
158. However, even so understood, this ques­
tion seems to be referring to the law appli­
cable in the present case by virtue of the dis­
puted clause, which stipulates that: 'The 
contract evidenced by this Bill of Lading shall 
be governed by English Law ...'. so If this is 
the case, this aspect of the dispute cannot be 
resolved on the basis of the Convention, which 
is not designed to resolve conflicts of law. It 
is for the national court to determine whether, 
by virtue of the applicable law, the fact that 
the application of English law designated by 
the clause amounts to a clause excluding or 
limiting the liability of the carrier would sug­
gest that the initial carrier could not have 
wished to agree to it. 
159. In response to this question, I conclude, 
therefore, that the Convention is not appli­
cable for the purpose of resolving problems 
relating to the conflict of laws. 
79 — Lamy Transporti volume 2, ibid., N o 447. SO — [French translation appears here in original text.] 
I - 1630 
CASTELLETTI v TRUMPY 
Conclusion 
160. For the foregoing reasons, I propose that the Court gives the following answers 
to the questions referred by the Corte Suprema di Cassazione: 
(1) The third case mentioned in the second sentence of the first paragraph of 
Article 17 of the Brussels Convention of 27 September 1968 on Jurisdiction and 
the Enforcement of Judgments in Civil and Commercial Matters, as amended 
by the Convention of 9 October 1978 concerning the Accession of the Kingdom 
of Denmark, Ireland and the United Kingdom of Great-Britain and Northern 
Ireland, is to be interpreted as meaning that the conditions which it sets out 
are satisfied by a jurisdiction clause printed on the reverse side of a bill of 
lading where only the face is signed by the contracting parties, by which a 
jurisdiction without a particular link or objective connection with the parties 
or the bill of lading in which it is incorporated is chosen. The court before 
which the matter is brought, whether or not it is the court designated, has 
jurisdiction to rule on the validity, with regard to the conditions set out in 
Article 17, of such a clause conferring jurisdiction. 
(2) Article 17, cited above, is to be interpreted as meaning that the enforceability 
of a clause conferring jurisdiction against parties who, under the applicable 
national law, in acquiring the bill of lading, have succeeded to the rights and 
obligations of the original parties, is subject to the validity of the said clause in 
the relationship between those original parties, which presupposes their con­
sent. This consent is presumed to exist where the reference to such a clause is 
in a form accepted by usages in the branch of international trade or commerce 
in question, and the same parties are, or ought to be aware of, those usages. 
(3) It is for the national court to ascertain the existence of such a usage as well as 
awareness of it by the contracting parties. The reference to a clause conferring 
jurisdiction, inserted, without standing out prominently, amongst other clauses 
of which it forms part, on the reverse side of a bill of lading pre-printed in 
English, where only the face is signed, is a form according with usages in the 
branch of international carriage by sea of consignments of fruit, if such a refer­
ence constitutes a practice generally followed by contracting parties operating 
in the branch of international trade or commerce in question when concluding 
contracts of the same type. The fact that such a practice, if it constitutes a usage 
within the meaning of Article 17, is contested is not such as to cause it to cease 
I-1631 
OPINION OF MR LÉGER — CASE C-159/97 
to constitute a usage. The usage to which reference is so made cannot be 
affected by the application of contrary provisions of national law. 
(4) There will be actual or presumed awareness of this usage by the contracting 
parties, professional traders in the branch of international trade or commerce 
in question, where, in this branch, a certain course of conduct is sufficiently 
known, by reason of the fact that it is generally and regularly followed in the 
conclusion of a certain type of contract, such as to be capable of being regarded 
as an established practice. The means by which this awareness or presumed 
awareness may be proved to the national court are those admissible under the 
applicable national law. 
Annex: The preliminary questions submitted by the Corte Suprema di Cas­
sazione 
'1. The first question to be put to the Court of Justice is as follows: 
In the case-law of the Court of Justice relating to the original wording of 
Article 17, reference has been made to the need to ascertain and protect the 
actual will of the parties with regard to the jurisdiction clause by means of the 
requirements laid down by that provision in respect of the validity of such 
clauses; that is also the case where the clause is adjudged valid, when the bill of 
lading containing the clause comes within the framework of a continuing busi­
ness relationship between the parties, and it is thereby established that the rela­
tionship is governed by the general terms and conditions (drawn up by one of 
the parties, namely the carrier) containing that clause (see Case 71/83 Tilly Russ 
v Nova [1984] ECR 2417, which cites earlier judgments underscoring the need 
for the consent of the parties to be clearly and precisely demonstrated). 
However, in the light of the insertion into the new wording of the provision 
of the reference to usage, which is prescriptive (and thus unconnected to the 
will of the parties, at least so far as specifically concerns a particular contract), 
the question arises whether the requirement of (actual) knowledge, or of lack 
of awareness arising out of negligent and inexcusable ignorance, is sufficient in 
view of the consistent incorporation (in all agreements similar to that in issue) 
of the jurisdiction clause. The question arises, in other words, whether it is any 
I -1632 
CASTELLETTI v TRUMPY 
longer necessary to ascertain the will of the parties, despite the fact that Article 
17 uses the word "concluded" [in the Italian version], which implies an expres­
sion of will and thus "commercial" usage (customary clauses). 
2. The second question concerns the meaning of the expression "form which 
accords". The first aspect concerns the way in which the clause appears, that is 
whether it must necessarily be in writing signed by the party who has drawn 
it up and who has therefore expressed the intention of relying upon it —• for 
example — by signing the bill of lading referring specifically to a clause which 
in turn refers to an agreement conferring exclusive jurisdiction, even in the 
absence of the signature of the other party (the shipper). 
The second aspect consists in establishing whether it is necessary for the juris­
diction clause to stand out prominently on its own within the contract as a 
whole, or whether it is sufficient (and therefore of no consequence as regards 
the validity of the clause) for it to be inserted amongst numerous other clauses 
drawn up in order to regulate the contract of carriage in every respect. 
The third aspect relates to the language in which the clause is drawn up, that is 
to say, whether it must be in some way related to the nationality of the parties 
to the contract or whether it is sufficient for it to be a language regularly used 
in international trade or commerce. 
3. The third question is concerned with whether the designated court must, as 
well as being a court of a Contracting State, be in some way related to the 
nationality and/or the residence of the parties to the contract or to the place of 
performance and/or conclusion of the contract, or whether the first condition 
is sufficient without there being any other link with the substance of the rela­
tionship. 
4. The fourth question concerns the process by which usage comes into being; 
that is, whether consistent incorporation of the clause in bills of lading issued 
by trade associations or a significant number of maritime transport undertak­
ings is sufficient or whether it must be demonstrated that since users of such 
transport (whether traders or otherwise) have not made any observations or 
expressed reservations regarding consistent incorporation of the clause, they 
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OPINION OF MR LÉGER — CASE C-159/97 
have tacitly acquiesced to the conduct of the other party, so that there may no 
longer be considered to be a dispute between them. 
5. The fifth question concerns the form in which such consistent practice is pub­
licised: must the form of bill of lading in which the jurisdiction clause appears 
be lodged at a particular office (trade association, chamber of commerce, port 
authorities, and so on) for consultation or made public in some other way? 
6. The sixth question concerns the validity of the clause, even where, by virtue of 
the substantive rules applicable in the chosen court, it takes the form of a clause 
exempting the carrier from, or limiting, his liability. 
7. The seventh question is concerned with whether the court (other than the 
chosen court) which has been called upon to assess the validity of the clause 
may examine the reasons for it, that is to say, the intention of the carrier in the 
choice of court made, as distinct from the court which would have had jurisdic­
tion according to the usual criteria laid down in the Brussels Convention or by 
the lex fori. 
8. The eighth question consists in ascertaining whether the fact that many ship­
pers and/or endorsees of bills of lading have challenged the validity of the 
clause by bringing an action before a court other than that designated by the 
clause itself is indicative of the fact that usage regarding the insertion of the 
clause in forms has not become well established. 
9. The ninth question consists in ascertaining whether the usage must exist in all 
the countries of the European Community or whether the expression "inter­
national trade or commerce" is intended to mean that it is sufficient for the 
usage to be practised in those countries which, in the context of international 
trade or commerce, have traditionally played a prominent role. 
10. The tenth question consists in ascertaining whether the usage in question may 
derogate from mandatory statutory provisions of individual States, such as, in 
Italy, Article 1341 of the Civil Code which, with regard to the general con­
tractual terms and conditions drawn up by one of the parties, provides that, in 
order for the usage to be valid, the other party must be or ought to have been 
aware of it and provides that clauses laying down particular limitations to or 
derogating from the jurisdiction of the courts must be specifically approved in 
writing. 
I -1634 
CASTELLETTI v TRUMPY 
11. The eleventh question concerns the circumstances in which insertion of the 
clause in question in a standard form, not signed by the party not involved in 
drawing it up, may be considered to be grossly unfair or even abusive. 
12. The twelfth question involves ascertaining whether the party concerned was or 
ought to have been aware of the usage, other than with regard to the condition 
set forth in paragraph 5, above, as regards the bill of lading itself, which con­
tained numerous clauses appearing on the reverse (paragraph 2, above). 
13. The thirteenth question involves identifying the person who is or ought to have 
been aware of the usage; whether it must be the original shipper, even if he is 
a national of a non-Contracting State (such as, in the present case, Argentina), 
or whether it is sufficient for it to be the endorsee of the bill, who is a national 
of a Contracting State (in the present case, Italy). 
14. The fourteenth question is concerned with whether the phrase "ought to have 
been aware" refers to a criterion of good faith and honesty when a particular 
contract was drawn up or to a criterion of ordinary care on the part of indi­
viduals who must be fully informed of current practices in international trade, 
for the purposes of paragraph 9, above.' 
I-1635