A Dutch bunker company based in Rotterdam (hereinafter: “Plaintiff”) initiated legal proceedings before the Rotterdam District Court against four Norwegian shipowners (hereinafter: “Defendants”) in respect of several bunker deliveries to vessels owned by Defendants in the port of Rotterdam, for which invoices have been left unpaid. The Rotterdam District Court has rendered judgment on 22 July 2015 in the ancillary action.

The facts

Plaintiff performed several bunker deliveries to vessels in the port of Rotterdam owned by the respective Defendants in October and November 2014. The purchase orders for the bunker supplies originated from O.W. Bunker (Netherlands) B.V. (hereinafter: OW Bunker). Plaintiff sent invoices for the bunker supplies to OW Bunker, which invoices remained unpaid.

OW Bunker has been declared bankrupt on 21 November 2014 and for this reason Plaintiff seeks recourse against Defendants for the unpaid invoices.

Plaintiff’s claim against Defendants

Plaintiff founded the litigation both on breach of contract and on a non-contractual basis. With regard to the contractual basis, Plaintiff argues that it entered into purchase agreements with each of the four Defendants, since OW Bunker acting as an agent must be deemed to have ordered the bunkers also on behalf of Defendants as owners of the vessels. Moreover, the bunker delivery notes (hereinafter: “BDN”) were signed for approval on behalf of each of the Defendants, whilst the BDNs state “on credit of the vessel”. From the definition of “Buyer” in article 4 of Plaintiff’s General Terms and Conditions (hereinafter: “GTCs”) it can be derived that Defendants are also to be considered as buyers. The GTCs are applicable on the relation between Plaintiff and OW Bunker.

In respect of the non-contractual basis for its claim, Plaintiff argues amongst others that its claims qualify as operating receivables within the meaning of article 8:217 Dutch Civil Code (hereinafter: “DCC”), which gives Plaintiff a right of recourse against the supplied vessels and therefore a claim against the shipowners. Plaintiff furthermore argues that it has a claim against Defendants for unjustified enrichment (article 6:212 DCC) or conversion.

With regard to the jurisdiction of the Rotterdam District Court Plaintiff refers to the choice of forum clause incorporated in its GTCs with respect to the contractual claims. In addition, with respect to the non-contractual claims Plaintiff argues that the Rotterdam District Court is the competent court to decide on this matter pursuant to various articles of the Brussels I Regulation (article 7 paragraph 2 and article 8 paragraph 1).

Defendants’ motion contesting jurisdiction

Defendants move in advance of all defences on the merits that the Rotterdam District Court is not competent and is lacking jurisdiction to hear the dispute.  According to Defendants, the choice of forum clause in Plaintiff’s GTCs is not applicable, since these GTCs have not been agreed upon by the parties.

Defendants furthermore argue that Plaintiff wrongly appeals to the Brussels I Regulation. Defendants reside in Norway, and therefore not the Brussels I Regulation, but the Lugano Convention would be applicable.

Moreover, Defendants argue that there is no contractual relationship between parties justifying an appeal to the relevant provisions of alternative jurisdiction in the Brussels I Regulation and the Lugano Convention, given the circumstance that Defendants bought the bunkers from Bergen Bunkers and not from OW Bunker.

Ruling of the Rotterdam District Court in the ancillary action

The Rotterdam District Court holds that the Brussels 1 Regulation is not applicable, since not one of the Defendants is domiciled within the territory of a state party to this Regulation. The Court continues that both Norway and the Netherlands are parties to the Lugano Convention and that since the present case is a civil/commercial matter, the Lugano Convention is applicable. However, given the circumstance that none of the Defendants is domiciled in the Netherlands and/or within the jurisdiction of the Court, the jurisdiction of the Court cannot be based on article 2 paragraph 1 and article 6 sub 1of the Lugano Convention.

 

Jurisdiction of the Rotterdam District Court pursuant to the choice of forum clause in Plaintiff’s GTCs

The choice of forum clause in Plaintiff’s GTCs contains the following wording “…in any court or tribunal of any country or state…”. Although it may be sufficient in a choice of forum clause to refer to a forum without a geographical indication, this forum must be determinable at the time legal proceedings are initiated. In the present choice of forum clause the requirement of determinacy has not been met, since the choice of forum is entirely left to Plaintiff, without there being any objective element on the basis of which determination is possible. As a consequence the Court rules that it cannot derive its jurisdiction based on the choice of forum clause in Plaintiff’s GTCs.

 

Jurisdiction of the Rotterdam District Court pursuant to article 5 sub 1 of the Lugano Convention

Article 5 sub 1 of the Lugano Convention provides for jurisdiction of certain courts (in addition to the court of the domicile of the defendant), in case no valid exclusive choice of forum is made. Plaintiff argues for various reasons that an obligation to pay the outstanding invoices rests on Defendants pursuant to a contractual relationship between the parties. However, Defendants dispute the existence of such a contractual relationship. The term ‘contract’ in article 5 sub 1 of the Lugano Convention refers to an agreement concluded voluntarily between parties. Question is whether Plaintiff’s arguments are sufficient to conclude that there is a contractual obligation within the meaning of article 5 sub 1 of the Lugano Convention.

Plaintiff’s argument that Defendants are to be considered as Plaintiff’s buyers since OW Bunker must be deemed to have ordered the bunkers also on behalf of Defendants, is rejected as it is not sufficiently motivated. Furthermore, Plaintiff’s arguments that the BDNs were signed for approval on behalf of Defendants, and the reference “on credit of the vessel” on the BDNs are insufficient to conclude that there is a contractual obligation within the meaning of article 5 sub 1 of the Lugano Convention.

The Court rejects Plaintiff’s point of view that a tripartite agreement has been concluded between Plaintiff, OW Bunker and Defendants. As a consequence, Plaintiff’s GTCs are not applicable in the relationship between Plaintiff and Defendants.

The Court declines jurisdiction with regard to Plaintiff’s claims based on a contractual ground.

 

Jurisdiction of the Rotterdam District Court pursuant to article 5 sub 3 of the Lugano Convention (non-contractual basis)

With regard to Plaintiff’s claim based on unjustified enrichment or conversion, the Court considers whether it must be deemed to be “the court of the place where the harmful event occurred”. The court answers this question positively, since the bunker deliveries took place in the port of Rotterdam.

The Rotterdam District Court finally comes to the conclusion that it is competent to hear the dispute on the merits. The case has been deferred to the docket list of 19 August 2015 for statement of defence to be submitted by Defendants. To be continued.