ECS European Containers N.V. v. Distri Rail B.V.

At a glance

Parties

ECS European Containers N.V. (Zeebrugge, Belgium) v. Distri Rail B.V. (Rotterdam, Netherlands)

Case no.

Gerechtshof Den Haag No. 200.247.010/01 (district court case no. C/10/537301 / HA ZA 17-988); ECLI:NL:GHDHA:2019:3314

Court

Gerechtshof Den Haag (Court of Appeal of The Hague), Civil Law Division

Forum and rules

Dutch court proceedings; jurisdiction objection based on a TAMARA arbitration clause (arbitration in Rotterdam); New York Convention Article II(3)

Treaty

New York Convention 1958; COTIF / CIM Uniform Rules (Article 46)

Court

B.J. Lenselink, J.M. van der Klooster, M.M. Olthof

Sector

Rail freight transport; freight forwarding

Outcome

Appeal allowed. The arbitration clause had no effect, the Rotterdam District Court has international jurisdiction, and the case was sent back to it.

Amount

Costs against Distri Rail: EUR 543 (first-instance lawyer's fees); on appeal EUR 81 writ costs, EUR 1,978 court fees and EUR 1,611 lawyer's fees; after-costs EUR 131 (rising to EUR 199 in the stated circumstances).

The dispute

ECS, a Belgian container company, booked rail transport with Distri Rail from Rotterdam to Duisburg in April 2016. The shipment was frozen bacon strips in a reefer container. ECS had cancelled the booking for that container, but the bacon was still carried from Rotterdam to Duisburg without cooling. ECS had to compensate the cargo interests in German court proceedings. It then sued Distri Rail for damages before the Rotterdam District Court. Distri Rail challenged the court's jurisdiction. It relied on a TAMARA arbitration clause (arbitration in Rotterdam) printed at the bottom of its quotations and emails. ECS made two arguments. First, Article 46 of the CIM Uniform Rules (COTIF) excludes arbitration. Second, ECS's own general conditions had already applied since Distri Rail signed a 2013 New Account Application Form, and those conditions contain a choice of the Belgian courts. The District Court declined jurisdiction, and ECS appealed.

Key holdings

1. Article 46 CIM governs the international jurisdiction of courts and does not deal with arbitration. It is modelled on Article 31 CMR. Nothing in the CIM Explanatory Report shows that the drafters meant to exclude arbitration. An arbitration agreement is therefore not a void derogation from the convention under Article 5 CIM. Grounds of appeal 1–5 failed. ¶¶ 3.5–3.7
2. The parties agreed that Dutch law governs whether a valid arbitration agreement was formed (Article 10:166 Dutch Civil Code). Distri Rail bears the burden of alleging and proving that the clause was agreed. ¶¶ 3.8–3.9
3. By signing the 2013 New Account Application Form, Distri Rail accepted ECS's general conditions for future dealings. Distri Rail did not substantiate its claim that the signatory lacked authority. Under Article 6:225(3) Dutch Civil Code, Distri Rail therefore had to reject ECS's conditions expressly in its later quotation. It did not, so neither its FENEX conditions nor the printed arbitration clause took effect. That the clause was printed in full, not merely incorporated by reference, made no difference. ¶ 3.10
4. Because the arbitration clause has no effect, the Rotterdam District Court has international jurisdiction based on Distri Rail's seat. The court left open whether that jurisdiction rests on Article 46 CIM or on Article 4 of the Brussels I-bis Regulation. The judgment was set aside and the case remanded. ¶ 3.12; Decision
5. Distri Rail pays the costs of the jurisdiction incident at both instances, except the costs of ECS's corrective writ on appeal. The judgment is provisionally enforceable. Decision

Procedural history

1. 12 September 2013Distri Rail signs ECS's New Account Application Form, which refers to ECS's general conditions.
2. 17 February 2016Distri Rail sends ECS a quotation bearing the TAMARA arbitration clause. A similar quotation follows on 1 March 2016.
3. 8 April 2016ECS books four containers for Rotterdam–Duisburg and cancels the reefer container the same day. Distri Rail's reply email carries the arbitration clause.
4. 28 September 2017ECS sues Distri Rail before the Rotterdam District Court.
5. 27 June 2018The Rotterdam District Court declines jurisdiction because of the arbitration clause.
6. 9 August 2018ECS appeals (writ corrected on 26 September 2018).
7. 22 October 2019The Court of Appeal of The Hague sets aside the District Court's judgment and remands the case to the Rotterdam District Court.

Tribunal, counsel and experts

Decided by

• B.J. Lenselink Judge, Gerechtshof Den Haag
• J.M. van der Klooster Judge, Gerechtshof Den Haag
• M.M. Olthof Judge, Gerechtshof Den Haag

For the claimant

I.M.C.A. Reinders Folmer

For the respondent

A.D. Huisman

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Keywords

• New York Convention Article II(3)
• validity of arbitration agreement
• COTIF
• CIM Uniform Rules Article 46
• CMR Article 31
• rail freight
• TAMARA arbitration rules
• battle of forms
• Article 6:225(3) Dutch Civil Code
• general conditions
• FENEX conditions
• Dutch Forwarding Conditions
• referral to arbitration
• international jurisdiction
• Brussels I-bis Regulation
• reefer container
• freight forwarding

Summary generated with AI from the published documents — refer to the award for the authoritative text.