61997CC0159_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
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 Convention of Brussels of 27 September 1968 on Jurisdiction and the Enforcement of Judgments 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 general 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 probably the article of the Convention that was the most transformed by the successive accessions of new States'. (5)
It is thus useful to briefly recall the evolution of this provision.
5 In its original version, this provision was worded as follows:
`If the Parties, one or more of whom is domiciled in a Contracting State, have, by agreement in writing or by an oral agreement evidenced in writing, agreed that a court or the courts of a Contracting State are to 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 Convention of 1978, the Contracting Parties agreed, in particular, that agreements conferring jurisdiction 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 subject of the present reference, reads as follows:
`If the parties, one or more of whom is domiciled 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 connection 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 evidenced 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 been aware. Where such an agreement is concluded by parties, none of whom is domiciled in a Contracting State, the courts of other Contracting States shall have no jurisdiction over their disputes 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 established between themselves.
`If the parties, one or more of whom is domiciled 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 connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction. Such an agreement conferring 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 commerce 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 originated 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 shipowner Lauritzen Reefers A/S, whose registered office is in Copenhagen, bound for Savona in Italy, where they were to be delivered to the company Trasporti Castelletti Spedizioni Internazionali SpA (hereinafter `Castelletti' or `the appellant in the main proceedings').
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 registered office in Genoa, Italy, before the Tribunale di Genova (Genoa District Court) seeking an order for payment of compensation.
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, conferring jurisdiction on the High Court of Justice, 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 legible, 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'. (11) 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 international trade or commerce, the Tribunale di Genova upheld the objection of lack of jurisdiction 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 Castelletti.
14 Castelletti therefore appealed on a point of law, relying on Article 17 of the Convention, 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 preceded it, relating to the particulars of the cargo.
15 The Corte Suprema di Cassazione ruled that: `the plea of the applicant is admissible'. (13)
While finding that the amended 1978 Convention 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 conferring jurisdiction should be concluded `in international trade or commerce in a form which accords with usages in that trade or commerce of which the parties are or ought to have been aware', since it ruled out the possibility 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 different headings, which I will now examine in turn.
Preliminary remarks
17 The extreme detail of the questions submitted 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, (14) in particular before the amendment made in 1978, in order to ascertain that it is still relevant after that date.
On the one hand, it does not follow from the Schlosser Report (15) 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 practice and to anticipate the particularities of new members.
On the other hand, I doubt the relevance 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 we shall see, that a certain 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 Benincasa. (16)
20 I will nevertheless do my best to suggest to the Court a way which, while fully taking into account the questions submitted, provides effective clarification to the national 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 correctly holds Article 17 of the Brussels Convention, 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 Contracting 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 Convention is fully applicable ratione temporis.
24 Moreover, the foreign element introduced into the present case by the Argentine nationality 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. (19)
25 In requiring that at least one of the parties be `domiciled in a Contracting State', the authors of the Convention really envisaged three types of situation, as M. Jenard (20) emphasised 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 Contracting State agree that the Court of another Contracting State shall have jurisdiction.' (21)
For its part, the Schlosser Report observes that `Article 17 ... [applies] only if the transaction in question is international in character.' (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 question - 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 appellant in the main proceedings to the respondent in the main proceedings, the condition that at least one of the parties has `his domicile in a Contracting State' is satisfied.
28 First of all, in the context of the initial links, the disputed clause is one of those foreseen in the second instance in the Jenard Report because it was concluded between `a person domiciled in a Contracting State' (the Danish carrier) and `a person domiciled outside the Community' (the Argentine shippers) (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 domiciled 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 elsewhere during the proceedings before the Court, (24) it is clearly not excluded from the material scope of Article 17 of the Convention.
31 In this regard, it should be remembered that, with the exception of the restrictions contained in Article 12 (jurisdiction in insurance 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.
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 mentioned 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 parties to the clause (II); the notion of form which accords with usages in international trade or commerce (III); as well as the parties' 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 capacity (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 conclusion of the contract, or whether the first condition is sufficient without there being any other link with the substance of the relationship.'
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 Zelger (25) the Court held that, in contrast 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 - justified by the existence of a direct connecting factor between the dispute and the selected court, Article 17 `... dispenses with any objective connection between the legal relationship in dispute and the court designated'. (26)
37 This analysis was confirmed by the Court in its most recent judgments, which emphasised that the disputed provision `... which accords with the intentions of the parties to the contract and provides for exclusive jurisdiction by dispensing with any objective connection between the relationship in dispute and the court designated.' (27)
38 This is, as academic writers have stated, (28) a rejection of the theory of forum conveniens, the practical difficulties for the application of which, arising from the determination of the link between the case and the court designated, can easily be imagined.
On the contrary, 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 usually the case in international matters'. (29)
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 jurisdiction chosen has a link with the parties or the contract. (30)
41 The jurisdiction chosen does not, however, always necessarily coincide with the court seised.
Dealings with a clause conferring 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 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 jurisdiction according to the usual criteria laid down in the Brussels Convention or by the lex fori.'
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 exclusive 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 jurisdiction'.
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 parties 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 Benincasa, 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 jurisdiction [is] invoked'. (33)
This broad formulation seems to me to designate in a general 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 suggesting to the Court is not at all detrimental to the legal certainty sought by the Convention 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 jurisdiction on a court other than the one seised of the proceedings is ... taken into account by the court of its own motion.' (34)
Thus, once it is accepted that the court seised of the proceedings 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 are brought has of its own motion to establish the existence of a jurisdiction 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 does not seem to me to require detailed consideration.
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 international trade or commerce and the parties' awareness of the usage.
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 jurisdiction, 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 jurisdiction clause (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 concluded 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, 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 business relationship between the parties, and it is thereby established that the relationship 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 underlining 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 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 longer necessary to ascertain the will of the parties, despite the fact that Article 17 uses the word "concluded", 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 voluntary prorogation of jurisdiction: the authors of the Convention intended only the will of the parties to be capable of forming a derogation from Articles 2, 4 and 5.
The requirement 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 parties', (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 proceedings 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 jurisdiction 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 consent 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 are 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.
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 promote.
63 In doing this, however, only a `relaxation of the formal requirements' was involved, to adapt Article 17 to the conditions of international 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 inclusion in the contract before any jurisdiction clause in those conditions can be effective is unacceptable in international trade.
International trade is heavily dependent on standard conditions which incorporate jurisdiction clauses.
Nor are those conditions in many cases unilaterally dictated by one set of interests 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 undertaking of the parties, it is because it is presumed 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 General Tesuaro, `a presumption of actual consensus'. (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 concerned' (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, notwithstanding the relaxation of the conditions of form in 1978, the actual consent of the parties 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 questions 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 purpose of the first part of the second question, as well as the eleventh question.
68 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'.
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 necessarily 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 signature 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, are not those who originally concluded the bill of lading in which it is contained.
71 In other words, does the notion of `parties' within the meaning of Article 17 only mean the `original' parties, i.e., those at the origin of the clause, or does it also mean the `parties' to the dispute, even third parties to the original agreement, (44) capable of being bound by an undertaking in which they did not take part?
72 One would be tempted to state a priori as a principle that a jurisdiction clause, like any contractual stipulation, only binds the parties 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 persons who have not signed it. (45)
A certain number of judgments illustrate this point.
74 First of all there is the judgment in Gerling and Others, (46) which, although given in a specific context, (47) recognised that the beneficiary 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. (48)
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 statutes, whether voting for or against the clause, and also all subsequent shareholders, irrespective 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 conclusion 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 the obligations, including those relating to the agreement on jurisdiction.' (50)
79 The fact that, as in the present case, we 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. (51)
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 - consented to the clause.
We have seen that, in reality, under the wording of Article 17 following 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 obligations 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, are 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, 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, succeeded to the rights and obligations of the shipper and the carrier respectively.
III - `Form which accords with usages in international trade or commerce' (second question, second and third limbs, fourth, eighth, tenth and ninth questions)
86 Under the amendment made to Article 17 by the 1978 Accession Convention, the consensus 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 commerce 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 international 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 conferring 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 provided 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 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.'
90 On the latter point, the Court has already held, in Elefanten Schuh (52), 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 prescribes either the use of a particular language or even the use of a language having a connecting 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, (53) in order to determine 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 contained, 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 inadvertently bound by standard forms of agreement, containing jurisdiction clauses without realising it.' (54)
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 either.
95 Moreover, as we shall see, 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 Cassazione 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 requirements of Article 17.
96 These various elements are precisely the subject of the questions that I will consider hereafter.
97 In reply to the second question, concerning 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 commerce, without being able to prescribe a priori 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 incorporation of the clause in bills of lading issued by trade associations or a significant number of maritime transport undertakings 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 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 forward at the time of the amendment in 1978 are known - the Schlosser Report emphasises 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 international trade.
These are the factors behind the relaxation of the formal provisions for international trade in the amended version of Article 17' (55) - no definition or understanding of the notion of usage to which reference is now made appears in the text of the report.
101 It was not until 1989, upon the amendment made by the adoption of the Convention 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 particular 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 international trade or commerce, it is not sufficient that an agreement conferring jurisdiction be in a form which accords with practices (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 contracts of the type involved in the particular trade or commerce concerned.' (58)
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 introduced in 1978 can obviously only concern agreements made between professional traders in international trade or commerce.
The continuous reference to `international commercial practice' and other `commercial transactions', particularly in the Schlosser Report, cannot be understood any other way.
Therefore, 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. (59)
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 reference principally to the system and objectives of the Convention, in order to ensure that the Convention is uniformly applied in all the Contracting States.' (60)
The same should also apply to the notion of `usage', within the meaning of Article 17.
104 So, in reality, the question of the determination of the meaning of `usage' is no longer a novel matter for the Court.
The MSG case concerned a clause conferring jurisdiction printed on a commercial letter of confirmation as well as on a series 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 [French: "usage"] ... the Court should nevertheless indicate the objective evidence which is needed in order to make such a determination.' (61)
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 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 reference is made should be `widely known to, and regularly observed by, parties to contracts of the type involved in the particular [international] 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 particular 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 regularly followed, since it has to be brought before the courts in order to dispute its application.
It therefore accepts that such a practice 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 regularly followed in the branch of trade or commerce in question.
111 One could in fact say that the very principle 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 their use. (63)
However, so long as these arguments 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 concerned 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 mandatory statutory provisions of individual States, such as, in Italy, Article 1341 of the Civil Code which, with regard to the general contractual 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'.
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 provisions, 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 subject the validity of the clause in question to mandatory provisions of national law in addition to those laid down in Article 17: `Contracting States are not free to lay down formal requirements other than those contained in the Convention'. (64)$
117 The second aspect raised by this question is linked to that, examined hereafter in connection with the twelfth, fifth, thirteenth and fourteenth questions, of the parties' awareness of the usage in question.
International trade or commerce
118 The MSG judgment, cited above, also contains the answer to the ninth question from the Corte Suprema di Cassazione, concerning 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 countries of the European Community, or whether the expression "international 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'.
119 The reference to the form which accords with `usages in international trade or commerce' 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 referring 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 Convention.
121 The Court considers that the existence of a usage should `not be determined in relation to international trade or commerce in general, but [in relation] to the branch of trade or commerce in which the parties to the contract 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 countries, rather than in the chosen country of jurisdiction for instance, or in certain countries, 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 international factual context, (68) it would first of all be clearly inappropriate to refer to what is usage in one or other of the signatory States, since transnational situations are 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 circumstances 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 certain 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 question, it should be stated that the reference to usages in Article 17 of the Convention does not have any geographical or territorial character 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 international trade or commerce in which the contracting 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 circumstances 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'.
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 applicable.
It will then be for the court to verify, if need be, compliance with the other conditions of form of jurisdiction clauses permitted by the provision of the Convention in question.
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 questions, 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 expression 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 questions), 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 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 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 succeeded, according to the applicable national law, to the rights and obligations of the 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 concluded the clause in question.
Such a requirement 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 contract containing a jurisdiction clause'. (72)
139 Once again, where a third party succeeds to the rights and obligations of one of the original parties to an agreement containing 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 compliance 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 relevant national provisions.
141 Therefore, it is sufficient to note that the parties whose awareness of the usage is required are 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 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'. (73)
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 reference at all to the nationality of the persons to which it applies.
On the other hand, importance 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 the Danish carrier was domiciled within a signatory State, the Argentinian nationality of the other party does not prevent the ascertainment, 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, however, 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 party'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 individuals who must be fully informed of current 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 demonstrating 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 sufficiently 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 particular, 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 referring court, which one expects of an operator familiar with this particular area of international trade or commerce.
I should also point out that it is precisely this notion of `ordinary care' to which the Court has referred in previous 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)
147 Consequently, the questions about the ascertainment of parties' awareness of the usage are somewhat irrelevant, since Article 17 creates an actual presumption of awareness, 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 shareholder is deemed to be aware of that clause and actually to consent to the assignment of jurisdiction for which it provides if the statutes are lodged in a place to which the shareholder may have access, such as the seat of the company, or are contained in a public register.' (78)
151 The reference to the lodging of company statutes in a place accessible to the shareholders, or their mention in a public register, is easily explained in the circumstances of the case in point, where the shareholders, independently of the mode of acquisition 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 specialised bodies.
153 It is true that, normally, the form of the bills of lading used by shipping companies follow the guidelines issued by the international organisations such as Bimco (Baltic and 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, moreover, 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 substantive rules applicable in the chosen court, it takes the form of a clause exempting the carrier 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 question seems to be referring to the law applicable
in the present case by virtue of the disputed clause, which stipulates that: `The contract evidenced by this Bill of Lading shall be governed by English Law ...'. (80)
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 suggest 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 applicable for the purpose of resolving problems relating to the conflict of laws.
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 consent.
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 reference 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 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 Cassazione
`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 business relationship between the parties, and it is thereby established that the relationship 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 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 expression 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 jurisdiction 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 relationship.
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 undertakings 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 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 publicised: 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 jurisdiction 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 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.
9. The ninth question consists in ascertaining whether the usage must exist in all the countries of the European Community or whether the expression "international 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 contractual 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.
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 contained 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 individuals who must be fully informed of current practices in international trade, for the purposes of paragraph 9, above.'
(1) - For ease 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 March 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 carrier undertakes to deliver the goods against surrender of the document.
A provision in the document that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking'.
The nature of the bill 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 Russ [1984] ECR 2417 at p. 2438.
(4) - Case C-106/95 MSG [1997] ECR I-911, paragraph 7, which refers to the judgments in Case 24/76 Estasis Salotti [1976] ECR 1831, paragraph 7, and Case 25/76 Segoura [1976] ECR 1851, paragraph 6.
(5) - Gaudemet-Tallon, H.: Les Conventions de Bruxelles et de Lugano, LGDJ, 1996, paragraph 104.
(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 Convention on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the adjustments made to them by the Convention on the Accession of the Hellenic Republic (OJ 1989 L 285, p. 1).
(8) - My emphasis.
(9) - In shipping matters, the forwarding agent of the ship is the representative of the carrier (shipowner), linked to his principal by a consignment contract, responsible for the receipt and delivery of the goods on behalf of the latter and, more generally, to see through all operations that the captain does not carry out himself.
He is distinguishable from the forwarding agent of the cargo who in contrast is a representative having the job of taking delivery of the goods on behalf of the consignee (Lamy Transport, volume 2, section 4, Maritime Transport, Nos 631 and 637).
(10) - [In the original French text, a French translation is given here.]
(11) - [French translation.]
(12) - [French translation].
(13) - Paragraph 1, second indent, of the translation of the order for reference.
(14) - According to my reckoning, there are no less than fourteen decisions concerning this provision.
(15) - Report on 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 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 (OJ 1979 C 59, p. 71), called the `Schlosser Report', paragraphs 174 to 179.
(16) - Case C-269/95 Benincasa v Dentalkit [1997] ECR I-3767.
(17) - The Accession Convention signed on 9 October 1978 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 Protocol on its interpretation by the Court of Justice with the adjustments made to them by the Convention on the Accession 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 of 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 Enforcement of Judgments in Civil and Commercial Matters (OJ 1979 C 59, p. 1), called the `Jenard Report'.
(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 the order for reference.
In contrast, no information can be found as regards the `domicile' of the 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 by sea, 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.
(25) - Case 56/79 Zelger v Salinitri [1980] ECR 89.
(26) - Ibid., paragraph 4.
(27) - Benincasa, ibid., 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 de droit communautaire, Encyclopédie Dalloz, volume I, No 264; Droz, G.A.L.; Compétence judiciare et effets des jugements dans le Marché Commun (Éude de la Convention de Bruxelles du 27 septembre 1968), Dalloz, 1972, paragraph 206; Gaudemet-Tallon, H. ibid., No 130.
(29) - Droz, G.A.L., ibidem, No 206.
(30) - See, to this effect, the Opinion of Advocate General Capotorti in Case 23/78 Meeth v Glacetal [1978] ECR 2133 at p. 2146.
(31) - See, for example, Watté, N., Nuyts, A., and Boularbah, H.: `Chronique - La Convention de Bruxelles (deuxième partie)', Journal des Tribunaux de Droit Européen, April 1998, 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, A. are also cited (footnote 15).
(32) - Paragraphs 7 and 6 respectively.
(33) - Benincasa, cited above, paragraph 31, which refers to Case C-214/89 Powell Duffryn v Petereit ([1992] ECR I-1745, paragraph 37), where this principle had already been stated.
(34) - Paragraph 174.
(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 Segoura, ibid., and Case 784/79 Porta-Leasing v Prestige International [1980] ECR 1517.
(38) - Ibid., paragraph 15.
(39) - Schlosser Report, paragraph 179.
(40) - The absence of an express reference to written form also allows the validity of 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.
(44) - In the circumstances of the present case, one of the parties to the dispute in the main proceedings is the agent 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 party to the original bill of lading.
The situation of the appellant in the main proceedings, bearer of the bill of lading, is different.
He may be, according to the applicable law, a third party to the initial agreement (see, in this regard, the decision in Tilly Russ).
(45) - See, in favour of this extension of the effects of a jurisdiction clause to certain categories of third parties, Gothot P., and Holleaux D., ibid., paragraph 186.
(46) - Case 201/82 Gerling Konzern Speziale Kreditversicherungs 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 jurisdiction 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.
(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 considered to be a third party to the bill of lading and the factual situation would be identical to that in Tilly Russ: only one of the two parties to the dispute would have to be considered as a third party to the bill of lading.
(52) - Case 150/80 Elefanten Schuh v Jacqmain [1981] ECR 1671, paragraph 29.
(53) - The expressions `usages' and `branch of international trade or commerce' are the subject of the questions examined hereafter.
(54) - Schlosser Report, paragraph 179.
(55) - Paragraph 179.
(56) - This wording came from Article 9(2) of the Vienna Convention of 11 April 1980 on International Contracts for the Sale of Goods.
See the Report of Messrs. Almeida Cruz, Desantes Real and Jenard on the 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 (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).
(58) - Ibid., paragraph 58.
(59) - In this regard also, see, for example, Gothot, P., Holleaux, D., and Béraudo, J.-P., cited by Alexandre, D., ibid., No 257.
(60) - Benincasa, 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 Shearson Lehmann Hutton v TVB [1993] ECR I-139, paragraph 13.
(61) - MSG, ibid., paragraph 21.
(62) - Ibid., paragraph 23.
(63) - Article 21 of this 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) - See, for example, Elefanten Schuh, cited above, paragraph 26.
(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 determination of the usage by reference to the law of one the Contracting States `risks placing the national court in difficult situations'.
(68) - See paragraph 25 in fine of the present opinion.
(69) - Ibid., paragraph 40.
(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.
(72) - Gothot, P., and Holleaux, D., cited above, paragraph 186.
(73) - Paragraph 19, my emphasis.
(74) - Paragraph 25 of this Opinion.
(75) - MSG, cited above, paragraph 24.
(76) - Estasis Salotti, Segoura and Tilly Russ, cited above, and Case 313/85 Iveco Fiat [1986] ECR 3337.
(77) - See, in this regard, paragraphs 89 to 97 of this Opinion.
(78) - Powell Duffryn, ibid., paragraph 28.
(79) - Lamy Transport, volume 2, ibid., No 447.
(80) - [French translation appears here in original text.]