The Court of Rotterdam has recently rendered a, not (yet) published, judgment about the applicability of forwarding conditions. Normally, the forwarder invokes the forwarding conditions. In this case the principal relied on the forwarding conditions.
Facts
In mid-2010 a logistic service provider in the port of Rotterdam, hereafter: “the contractor”, received a request from a German logistics service provider, hereafter: “the principal”. The request was to determine what rate a terminal will charge for unloading shipments granite in big bags. The contractor then requested a terminal to issue a tariff after which an offer was sent to the principal.
After the ship arrived in the port of Rotterdam the hatches of the ship were opened by the terminal and it became apparent that a large number of big bags were torn. The terminal charged additional costs to the contractor because the works to discharge were more extensive than anticipated. The contractor charged these additional costs on to the principal.
However, the principal refused to pay the additional costs, after which the contractor has instigated proceedings before the Court of Rotterdam. The principal claimed that the Court of Rotterdam did not have jurisdiction because parties agreed on a choice of forum for the German court.
At the bottom of the order confirmation of the principal, the following preprinted statement was stated:
“wir arbeiten ausdrücklich auf Grundlage der allgemeinen Deutschen Spediteurbedingungen”
The principal claimed that the Allgemeine Deutsche Spediteurbedingungen (ADSp) applies to the agreement between parties. According to the principal the court of the domicile of the forwarder had exclusive jurisdiction. The principal relied on article 30 of the ADSp which states:
“30. Erfüllungsort, Gerichtsstand, anzuwendendes Recht
[…]
30.2 Der Gerichtstand für alle Rechtstreitigkeiten, die aus dem Auftragsverhältnis oder im Zusammenhang damit entstehen, ist für alle Beteiligten, sowie sie Kaufleute sind, der Ort derjenigen Niederlassung des Spediteurs, an die der Auftrag gerichtet ist. Für Ansprüche gegen den Spediteur ist dieser Gerichtstand ausschließlich”.
Judgment of the Court
The Court of Rotterdam considered that the above mentioned reference to the ADSp was stated in a letter of the principal and that therefore the words “wir” at the beginning of the reference, referred to the principal. The reference to the ADSp was therefore related to the activities of the principal and not to the activities of the contractor. In the proceedings before the Court of Rotterdam the contractor claims payment for its activities. Because the above reference to the ADSp was only related to the activities of the principal, the ADSp were not applicable to the underlying claim of the contractor. Therefore, the choice of forum clause of article 30 of the ADSp was also not applicable. The Court of Rotterdam had jurisdiction to rule over the claim of the contractor.
What can we learn from this judgment?
It is important to realize that it is possible in the logistics services sector that parties involved have different capacities. When a party wants to apply certain conditions, it will have to realize which capacity he has in a certain legal relationship. The reference by a principal to conditions should not start with: “we work on the basis of”. It should state that the conditions apply to a certain agreement.
It is also important that the correct conditions are declared applicable. In the subject case the principal declared the German forwarding conditions applicable. These conditions, just as the FENEX conditions, contain provisions that are especially beneficial to the forwarder and not to the benefit of the principal. To apply forwarding conditions will be very unfavorable for the principal. In general, it is most favorable for the principal to apply conditions that will benefit the principal, such as purchase conditions.
