Coreck Maritime GmbH v Handelsveem BV and Others.
Date: 2000-11-09
13 The Court has held that, by making the validity of a jurisdiction clause subject to the existence of an agreement between the parties, Article 17 of the Convention 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 consensus between the parties, which must be clearly and precisely demonstrated, and that the purpose of the requirements as to form imposed by Article 17 is to ensure that consensus between the parties is in fact established (Case 24/76 Estasis Salotti v RÜWA [1976] ECR 1831, paragraph 7, Case 25/76 Segoura v Bonakdarian [1976] ECR 1851, paragraph 6, and Case C-106/95 MSG v Gravières Rhénanes [1997] ECR 1-911, paragraph 15).
14 However, if the purpose of Article 17 of the Convention is to protect the wishes of the parties concerned, it must be construed in a manner consistent with those wishes where they are established. Article 17 is based on a recognition of the independent will of the parties to a contract in deciding which courts are to have jurisdiction to settle disputes falling within the scope of the Convention, other than those which are expressly excluded pursuant to the fourth paragraph of Article 17 (Case 23/78 Meeth v Glacetal [1978] ECR 2133, paragraph 5).
20 Furthermore, it is settled case-law that the validity of a jurisdiction clause under Article 17 of the Convention must be assessed by reference to the relationship between the parties to the original contract (see to that end Case 71/83 Tilly Russ v Nova [1984] ECR 2417, paragraph 24, and Case C-159/97 Castelletti v Trumpy [1999] ECR I-1597, paragraphs 41 and 42). It follows that it is in relation to those parties, which it is for the national court to identify, that the conditions of application of Article 17 of the Convention must be assessed. The circumstances in which a jurisdiction clause may be enforced against a person who was not privy to the original contract are the subject-matter of the third question, which is considered below.
23 It is sufficient to note that the Court has held that, in so far as the jurisdiction clause incorporated in a bill of lading is valid under Article 17 of the Convention as between the shipper and the carrier, it can be pleaded against the third party holding the bill of lading so long as, under the relevant national law, the holder of the bill of lading succeeds to the shipper's rights and obligations (Tilly Russ, paragraph 24, and Castelletti, paragraph 41).
24 It follows that the question whether a party not privy to the original contract against whom a jurisdiction clause is relied on has succeeded to the rights and obligations of one of the original parties must be determined according to the applicable national law.
25 If he did, there is no need to ascertain whether he accepted the jurisdiction clause in the original contract. In such circumstances, 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, mentioned in the bill of lading, including those relating to the agreement on jurisdiction (Tilly Russ, paragraph 25).
26 On the other hand, if, under the applicable national law, the party not privy to the original contract did not succeed to the rights and obligations of one of the original parties, the court seised must ascertain, having regard to the requirements laid down in the first paragraph of Article 17 of the Convention, whether he actually accepted the jurisdiction clause relied on against him.
27 Accordingly, the reply to the third question must be that a jurisdiction clause agreed between a carrier and a shipper which appears in a bill of lading is enforceable against a third party bearer of the bill of lading if he succeeded to the rights and obligations of the shipper under the applicable national law when he acquired the bill of lading. If he did not, it must be ascertained whether he accepted that clause having regard to the requirements laid down in the first paragraph of Article 17 of the Convention.
The fourth question
30 The question which national law is applicable for the purposes of determining the rights and obligations of a third party bearer of a bill of lading is not one of interpretation of the Convention; it falls within the jurisdiction of the national court, which must apply its rules of private international law.