The dispute should not be submitted to the Supreme Court in Hamburg
The dispute arises from a shipment of breakfast products that was damaged during multimodal transport from the producer in Parchim, Germany to the recipient in England. The entire transport consisted of road transport from Parchim to the port of Hamburg, sea freight from Hamburg to Felixstowe in England and road transport from Felixstowe to Enfield.
Interteam was the contracting party for the entire transport. Interteam had then agreed a contract with Unifeeder for sea freight and road transport. The booking was addressed to Unifeeder Germany GmbH. The footer of the booking referred to the “General German Forwarding Conditions (ADSp), latest version”, and it stated that the place of jurisdiction was Hamburg.
Interteam had a close cooperation with Unifeeder and Unifeeder had carried out several transports for Interteam.
The claims of the plaintiff and the defendant
Plaintiff Unifeeder claimed that the contract had been entered into under Unifeeder’s general terms and conditions attached to the booking.
The defendant had not protested after the booking confirmation, nor after receiving the bill of lading and not after receiving the invoice.
The plaintiff and the defendant had entered into several transport contracts over the past two years and all of these contracts were entered into on the basis of Unifeeder’s general terms and conditions. Therefore, Interteam must have been familiar with Unifeeder’s general terms and conditions.
The defendant Interteam applied, among other things, that he had pointed out ADSp and Hamburg as the place of jurisdiction in the transport booking and that the plaintiff had not protested. Therefore he had to assume that the contract had been entered into on the basis of these conditions.
The Judgment of the Danish Maritime and Commercial Court
Referring to the bill of lading and the invoices, both of which were issued by Unifeeder, the Maritime and Commercial Court stated that Unifeeder A/S had to be regarded as the contracting party. The back of the Bill of Lading consists of Unifeeder’s General Terms and Conditions (Unifeeder Non-Negotiable Bill of Lading Terms and Conditions) which includes a jurisdiction clause.
On the basis of the explanations and further information in the matter, the Maritime and Commercial Court assumed that Interteam had received a copy of the Bill of Lading and the general conditions printed on the back and that Interteam had not protested. The parties had had an ongoing working relationship, after which Interteam also had to be aware of Unifeeder’s general terms and conditions.
Against this background, the Maritime and Commercial Court decided that the dispute should be dealt with at the Maritime and Commercial Court.
In this matter the crucial importance of passivity to general conditions was established. It can be assumed that the court had found that it is quite normal procedure for the general conditions, including a jurisdiction clause, to be on the back of the bill of lading. Defendant had received the Bill of Lading and had not protested, nor had Defendant protested the General Terms while working with Unifeeder.
If the defendant did not agree with Unifeeder’s general conditions, Interteam should have protested and in the absence of a protest, the general conditions for the entire transport were used.
The above article is written by lawyer Anders Stig Vestergaard.