Under the terms of a Bill of Lading the shipper, the receiver, the consignee, the holder of the Bill of Lading, the owner of the cargo and, usually, anybody further defined as merchant in the Bill of Lading will be liable not only for the payment of freight and charges, but also for demurrage, a contribution in general average, and in addition liability will be allocated in the Bill of Lading to indemnify the carrier against losses and third party liability arising from inaccurate descriptions and markings, or realization of hazards connected with the particular cargo shipped. US law and Dutch law are applied in a case recently decided by the Rotterdam District Court [n1]
In The UAL Antwerp case the carrier UAL was seeking an immediately enforceable declaratory judgment that Airgas and Bechtel were jointly and severally, or at least each individually, liable in respect of UAL for all consequences of an explosion and fire on board of UAL’s vessel “UAL Antwerp” in the port of the Luanda, Angola. The explosion and fire happened during discharge of “UAL Antwerp” and according to UAL the incident was caused by ethylene that leaked or was released from one or more of the 9 shipper owned insulated tank containers with cooled liquid ethylene carried as deck cargo from the port of loading Houston, Texas, United States of America, to the port of discharge Soyo, Angola under a Bill of Lading on a form of UAL, issued on behalf of UAL as carrier listing as “shipper/exporter”: Overseas Bechtel Incorporated, c/o Airgas Specialty Gases Inc. (…) e-mail: (…), and as “consignee”: Angola LNG c/o Bechtel International Incorporated, Soyo Angola, Angola LNG Project. UAL asserted that in light of clause 20 of the Bill of Lading, entailing an obligation to indemnify the “carrier” from and against any damage and liability ensuing from the carriage of hazardous substances, and the shipper’s information obligation and related obligation to indemnify as laid down in articles 8:394, 8:395 and 8:411 of the Dutch Civil Code (“DCC”), Airgas and Bechtel were liable to UAL. Airgas and Bechtel should have ensured that the containers could withstand the intended carriage without the containers releasing ethylene, so UAL could legitimately expect that no ethylene would be released under normal circumstances. As the Bill of Lading named Bechtel “c/o” Airgas as shipper, it was not immediately clear which of the two acted as shipper when booking the cargo and taking receipt of the Bill of Lading. The Bill of Lading instruction had come from a forwarding agent and when asked, Airgas and Bechtel were – according to UAL – unwilling to clarify which of the two should be deemed the shipper or to provide the agreement between them, despite it being clear that one of these two (or both) must be the shipper.
Both Airgas and Bechtel moved in respect of all defenses primarily that the Rotterdam District Court should decline jurisdiction in respect of UAL’s claim. UAL has moved that the Court accept jurisdiction, rejecting the ancillary claim and order Bechtel (and Airgas jointly and severally) to pay the cost of the ancillary action.
The assessment by the Rotterdam Court in both ancillary actions:
As UAL has its registered office in Cyprus and Airgas and Bechtel have theirs in the United States, this is an international case to which, in principle, the Brussels I Regulation does not apply, as Airgas and Bechtel, as defendants, are not domiciled in a European Union Member State.
The choice of forum clause invoked by UAL, however, does fall under the scope of Article 23 of the Brussels I Regulation, if and to the extent that Airgas or Bechtel, or both, must be deemed the shipper or shippers under the contract of carriage. To that extent, the situation described in Article 23(1) of the Brussels I Regulation would occur that the parties, at least one of which is domiciled in a Member State (here: UAL, in Cyprus), have designated a court in a Member State (here: the Rotterdam District Court, in the Netherlands) to adjudicate disputes that have arisen or will arise in respect of a particular legal relationship (here: the contract of carriage evidenced by the Bill of Lading). The District Court finds that the requirements imposed by Article 23 of the Brussels I Regulation on a valid choice of forum have otherwise been satisfied. This means that based on the choice of forum laid down in the Bill of Lading in conjunction with Article 23 of the Brussels I Regulation, the District Court has exclusive jurisdiction to adjudicate UAL’s claims if and to the extent that Airgas or Bechtel, or both, may be deemed the shipper or shippers under the contract of carriage.
It follows from the case law of the Court of Justice of the European Union (“ECJ”) that a choice of forum in a Bill of Lading may be invoked against a third party that was not a party to the contract of carriage if the provision applies between the shipper and the carrier, and the third party that acquired the Bill of Lading succeeded the shipper in its rights and obligations according to the applicable national law [N2] This means that based on the choice of forum in the Bill of Lading in conjunction with Article 23 Brussels I Regulation, the District Court has the same exclusive jurisdiction to adjudicate all of UAL claims if Airgas or Bechtel, or both, succeeds to the shipper’s rights and obligations under the contract of carriage.
The questions as to whether Airgas or Bechtel or both can or cannot be deemed (i) the shipper or shippers under the contract of carriage, or (ii) to have succeeded to the shipper’s rights and obligations under the contract of carriage in the sense referred to above must be answered with due observance of Article 10:162 of the Dutch Civil Code, which reads as follows to the extent relevant:
“In the carriage of items under Bill of Lading, the question of (…) who the bearer is of the rights and obligations in respect of the carrier ensuing from the Bill of Lading is answered according to the law of the state in which the port is located where unloading was to occur pursuant to the contract, irrespective of a choice of forum elected by the parties to the contract of carriage.
The questions referred to in paragraph 1 are nevertheless answered according to the law of the state in which the port of loading is located in respect of the obligations in the matter of making the agreed items available, and the location, the manner and the duration of the loading.”
In view of the assertions made by UAL, paragraph 2 of Article 10:162 of the Dutch Civil Code should be applied in this case. After all, the essence of the dispute is the question of whether – as goods of a hazardous nature were offered for carriage – sufficient measures were taken to prevent these hazards from materialising during carriage and to provide the carrier with sufficient information to make a well-informed decision as whether to accept or refuse the cargo being offered [N3].
This means that the question of which party is the shipper and of which party succeeded to the shipper’s rights and obligations must, in principle, be answered with due observance of the laws of the United States.
The District Court also notes that the actions between UAL and Airgas on the one hand and between UAL and Bechtel on the other are different actions and that, contrary to what UAL and Bechtel appear to assume, the District Court’s ruling on its jurisdiction in one action is not directly relevant to the jurisdiction ruling in the other action.
Only if specific rules of law give cause to do so may the ruling to be given in the one ancillary action affect the relevant ruling in the other ancillary action. In that regard, the District Court refers to Article 7 of the Dutch Code of Civil Procedure (“DCCP”), to be discussed below.
Furthermore in the ancillary action lodged by Airgas
Airgas has presumed in its statement of defence, which included also a motion to decline jurisdiction, that the party to be qualified as the shipper is the carrier’s contracting party: the party that concluded the contract of carriage with UAL. Airgas disputes that it concluded the contract of carriage. Airgas has furthermore asserted that the mention on the Bill of Lading of a shipper mentioned by name – Bechtel, in its opinion – does not necessarily mean that it is or becomes a party to the contract of carriage.
UAL has also assumed in its statement of defence in the ancillary action that the party that concluded the contract of carriage with UAL must be deemed the shipper. According to UAL, the answer to this question is factual by nature and not dependent on the applicable law. UAL pointed out that Airgas has not disputed that either Airgas or Bechtel must have acted as shipper, and is of the opinion that this establishes that indeed only one of the two could have been the shipper.
UAL has asserted that the booking and the instructions for completing the Bill of Lading were performed by its forwarding agent, DCS, on behalf of Airgas. According to UAL, its local agent in the port of loading stated that the freight was negotiated with DCS Freight Houston Inc. as Airgas’ forwarding agent, that the cargo was also booked and delivered for carriage by Airgas/DCS, and that these parties also issued the Bill of Lading instructions. UAL says that it can substantiate this in more detail, but believes this is not really necessary. It has also submitted no documents evidencing the circumstances of the booking, and has made no offer of proof.
In response to UAL’s further position, Airgas continues to contest that it was the shipper. It has also disputed that DCS acted on its behalf. The statement about a local UAL agent is considered by Airgas to be insufficiently specific and unsubstantiated.
Airgas has submitted documents that were already submitted earlier – in whole or in part – by Bechtel in its ancillary action, and has asserted that although these show that it acted de facto as, they do not show that it concluded the contract of carriage as shipper.
Airgas has presented the actual circumstances of the conclusion of the contract as follows. Airgas had engaged Joss as broker. Joss requested freight tenders through the forwarding agent DCS. Mr. P. of Airgas initially personally maintained contact with Joss concerning the freight negotiations with UAL. In his turn, Mr. P. of Airgas kept Mr. A. and Mr. A.A. of Bechtel informed in that regard. At a later stage, just before the contract of carriage was concluded, Bechtel itself maintained direct contact with Joss, and these parties ultimately jointly concluded the contract of carriage. Therefore, Bechtel arranged the carriage and its forwarding agent SDV had Bechtel named as the shipper on the Bill of Lading. In this regard, Airgas mentioned CSA as UAL’s agent but did not explain what it specifically might have done. Airgas also submitted an email of 12 April 2011 in which Joss wrote to Bechtel, referring to “Booking number: 65662” that it was nominating the “UAL Congo V. 753” (“ETS Houston 5/15”). Joss also asked for “Full invoicing details for Bechtel/Angola NLG”. Airgas paid DCS’ freight invoice and charged it to Bechtel.
Although UAL has not yet been able to respond to Airgas’ latest documents and assertions, these are basically in line with what UAL presented as the opinion of its local agent in its statement of defence in the ancillary action.
After all, both parties have indicated that the negotiations regarding the freight were performed by UAL (or its agent or intermediary) on the one hand and the forwarding agent DCS (also stated on the Bill of Lading) on the other, which maintained contact with the broker Joss, who in turn reported to Airgas, which had engaged Joss. That Joss might have later (also) been guided by instructions from Bechtel – the buyer and the intended (direct or indirect) recipient of the cargo – is only relevant to the identification of the parties to the contract of carriage if it had been made clear to UAL that Joss proceeded to act for and on behalf of Bechtel. The latter was neither asserted nor proven. Apparently, it was via Joss and DCS that the booking was ultimately made with UAL, and it was Airgas that initially paid for the freight via DCS.
Under these circumstances, the District Court designates Airgas as the party that in fact, as shipper, contracted with UAL as carrier. The District Court sees no cause to assume that the laws of the United States might obstruct this finding.
That changes may have occurred in the contractual relationship between Airgas and Bechtel over time, in particular regarding the question of who was to arrange for the carriage and who bore the risk in that respect (from FCA to DDU or FCA plus), and that this may have involved changes in Joss’ direction or in the manner in which the parties settled with one another, does not, in principle, affect UAL as carrier. Special additional circumstances that might change this have not been demonstrated.
It is imaginable, incidentally, that a variety of questions of representation, mandate and assignment according to the applicable laws of the United States could be raised, but the positions taken by the parties give the District Court no cause to investigate those questions. They have not asserted, for example, that one of the agents mentioned might have contracted in its own name or presented itself as their representative without authorisation to do so. As the parties have not addressed these questions, the District Court will not do so either.
The conclusion in respect of Airgas is that it is bound as shipper to the contract of carriage and thus to the choice of forum laid down in the Bill of Lading. The claim in the ancillary action will therefore be rejected.
As the party ruled against, Airgas will be ordered to pay the costs of the ancillary action.
furthermore in the ancillary action lodged by Bechtel
After Bechtel asserted and substantiated in its ancillary motion to decline jurisdiction that not it, but Airgas, should be considered the shipper, UAL adduced in its ancillary statement of defence that, all circumstances considered, in its view as well, Airgas was its contracting party. In so doing, also in light of its assertion that either Airgas or Bechtel was the shipper, it let go of its position that Bechtel was party to the contract of carriage. This position therefore needs no further assessment.
UAL has argued that Bechtel is bound by the contract of carriage because it gave Airgas room to contract on such terms that parties other than Airgas itself were also bound, specifically via the merchant clause. According to UAL, Bechtel is subject to the merchant clause because it was the purchaser of the cargo, customer of the shipper Airgas, and also the receiver (because the cargo was intended for it) and possibly holder of the Bill of Lading or the owner of the goods. UAL has asserted that a reasonable interpretation of the clause entails that “owner” also means the intended or future owner. According to UAL, Bechtel has a stricter duty to substantiate its refutation, as UAL has no way of knowing who was the holder of the Bill of Lading or the owner.
Contrary to what UAL appears to believe, Bechtel cannot already be bound by a clause in the contract of carriage between UAL and Airgas because UAL and Airgas agreed to a certain definition of “merchant” that might be applicable to Bechtel. The general point of departure in contract law – also in the United States – is, after all, that contractual commitments involve obligations voluntarily undertaken by a party, and that in principle, agreements only apply between the parties.
If UAL holds the opinion that Bechtel is bound, as a non-contracting party, to a contract of carriage that Bechtel itself did not conclude, then it is up to UAL itself to put forward grounds for the same. That UAL and Airgas agreed to a broad merchant clause is insufficient in that regard.
According to the laws of the United States, there can be no third-party effect of the contract of carriage to the detriment of a non-contracting party (in this case: Bechtel) unless the third party explicitly or implicitly agreed to be bound or if the party seeking to invoke its contract (in this case: UAL) against the third party could legitimately expect such agreement.
Such legitimate expectation – and the third-party effect of a contract of carriage based on that expectation – was assumed to the detriment of the cargo owner in the judgment by the US Supreme Court in the Kirby case.[N4] In that case, the railroad carrier was permitted (via the Himalaya clause) to invoke the liability limitations in the Bill of Lading against Kirby, who was not a party to the contract of carriage that had been concluded between the ocean carrier and Kirby’s freight forwarder. That judgment was based on the fact that Kirby, as owner of the cargo, had entrusted goods to its intermediary (the freight forwarder, which had also issued a house Bill of Lading) to have them transported.
It has been neither asserted nor demonstrated in this case that Bechtel acted as cargo owner entrusting Airgas or any logistics agent with the containers of ethylene at the time of the conclusion of the contract of carriage, therewith creating a legitimate expectation for UAL that Bechtel agreed to either the “merchant clause” and the consequences ensuing from it or to the choice of forum. The documents much more create the impression that Airgas had the carriage arranged as the shipper and owner at the time of the cargo. The assertion that Bechtel gave Airgas authority to contract is rejected for that reason.
Nor has any explicit or implicit agreement to be bound by someone else’s contract of carriage as referred to hereinbefore been demonstrated. That Bechtel gave the appearance or expectation of such agreement at a later point in time because, as holder of the Bill of Lading, Bechtel presented it to obtain delivery of the cargo or claimed entitlement to damages also has not been asserted or demonstrated.
The foregoing leads to the finding that Bechtel is not bound to the provisions of the contract of carriage via the “merchant clause”, and therefore is not bound to the choice of forum laid down in the Bill of Lading.
No other grounds were put forward for the jurisdiction of the Dutch Court or the competence of this District Court.
The District Court sees no cause to assume jurisdiction based on Article 7 of the DCCP, which assigns the Dutch court jurisdiction in the event that – briefly put – it has jurisdiction in respect of another defendant, providing the claims against the individual defendants are interrelated to such an extent that joint assessment is justified by reasons of expediency. After all, the contractual claim against Airgas as shipper, who was also the party that filled the containers and offered them for carriage, is not so closely related to the claim against Bechtel – which claim cannot (as follows from the foregoing) be based on a contract – that joint assessment is justified by reasons of expediency.
The foregoing leads to the finding that the District Court will decline jurisdiction to adjudicate the claim against Bechtel.
As the party ruled against, UAL will be ordered to pay the costs of the ancillary action. As a result of the court declining jurisdiction, the main action between UAL and Bechtel ends. UAL will be ordered to pay Bechtel’s costs of the proceedings in the main action, as UAL needlessly created costs by lodging its main action before the wrong court.
The District Court will order UAL and Airgas to appear at a hearing in order to explore a settlement and to obtain information.
[N1] Rotterdam District Court 6 August 2014 (case number: C/10/434781) Universal Africa Lines Ltd v. Airgas Specialty Gases Inc., and Overseas Bechtel Inc.
[N2] ECJ 16 March 1999, case C-159/97, NJ 2001/116 (Casteletti/Trumpy), ECJ 19 June 1984, no. 71/83, NJ 1984/735 (Tilly Russ), ECJ 9 November 2000, case C-387/98, NJ 2001/599 (Coreck/Handelsveem)
[N3] Cf. Rotterdam District Court 20 December 2001, S&S 2003/20 (Hester)
[N4] Norfolk Southern Railway Co. v. James N. Kirby Pty Ltd., 125 S. Ct. 385, 2004, AMC 2705 (2004), as discussed by R. Zwitser in De zaak Kirby en derdenwerking van contracten, WPNR 2009, 6784 and 6785, and in De contractueel betrokken eigenaar met een House Bill of Lading, TVR 2013, p. 33 et seq