Charlotte J. van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam

The District Court of The Hague rendered a judgment on 19 January 2022 in a case concerning damage sustained to a consignment of roses en route from Spain to the Netherlands (ECLI:NL:RBDHA:2022:5313).

The facts of the case

Agreement between Getru and Aleia for the transportation of goods (roses) by road by Getru from Spain to the Netherlands. Getru’s general conditions contain a choice of forum before the District Court of The Hague, the Netherlands.

Aleia’s company is sold to the Spanish company Ondara, which then also commissions transports by Getru. Due to default by Ondara, Getru dissolves the agreement with Ondara. Getru claims payment of (a) approximately EUR 54,000 for transport services rendered and (b) EUR 280,250 as damages for failure to return containers and plates made available by Getru for the transports.

Ondara claims by way of procedural issue that the Court (i) declines international jurisdiction over claim (b) for compensation for the containers and plates and (ii) declines relative jurisdiction over claim (a) for payment for the transportation services.

The legal grounds and the decision of the Court

The CMR applies to the contract of carriage between Getru and Ondara. Applicability of the CMR excludes in principle the applicability of the Brussels I Bis Convention (Article 71 Brussels I Bis Convention). The jurisdiction rule of Article 31 CMR has exclusive effect. This jurisdiction rule applies to all disputes arising from a contract of carriage subject to the CMR, including non-contractual claims under national law, insofar as they are related to the contract of carriage subject to the CMR. The dispute over the containers and plates is related to the contract of carriage between the parties and therefore falls within the scope of the CMR.

With regard to the choice of forum clause in Getru’s general terms and conditions, it should first be noted that the formal requirements that Article 25 paragraph 1 Brussels I Bis Convention imposes on a choice of forum clause also apply to the clause referred to in Article 31 paragraph 1 CMR designating a court as competent.

The precedence given by Article 71 Brussels I Bis Convention to the CMR as a special convention applies only insofar as that special convention governs a particular question of law. Since the CMR does not provide any rules on the form of a choice of forum clause, one should consult the Brussels I Bis Convention, more specifically Article 25 thereof. The formal rules mentioned therein are drawn up in the interest of legal certainty and serve to ensure that the parties concerned actually agree to the choice of forum clause. If the choice of forum clause was part of the transport agreement between Getru and Aleia, it does not mean that it is also part of the transport agreement between Getru and Ondara. This requires that Ondara has validly taken over from Aleia the transport agreement existing between Getru and Aleia. Under applicable Dutch law (Article 6:159 Dutch Civil Code), a contract transfer requires a deed. In the absence of such a transfer deed, in the context of the procedural issue of the jurisdiction, it cannot be assumed that Ondara is bound by the choice of forum clause from Getru’s general terms and conditions by contract takeover. That binding to the forum selection clause does exist for the following reason.

The footer under Getru’s emails includes a statement in the Dutch and English language from the end of 2020/beginning of 2021 that disputes arising from and relating to agreements with Getru governed by the CMR Convention will be settled by the competent court in The Hague. Getru’s claim concerns transport services from the period 22 February 2021 to 11 March 2021. At that time a current legal relationship existed between the parties and Ondara had known about the choice of forum for some time. The parties thus agreed on a choice of forum in a form permitted by the practices that have become customary between the parties within the meaning of Article 25 paragraph 1 b Brussels I Bis Convention. All claims are covered by this choice of forum.