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05 June 2013
Companies often try to minimise costs by centralising all information in one place – usually, their websites. Standard transport conditions have become more complex in past years; whereas decades ago the reverse side of a bill of lading was blank, it has now become a challenge to decipher the terms and conditions contained on it. Carriers try to avoid the problem by referring to their websites, where the terms and conditions are published. Whether these terms and conditions are validly incorporated is a question to be determined by the court.
Over the past few years, the Antwerp Commercial Court has considered on multiple occasions the question of whether terms and conditions published on a website can be validly incorporated into an agreement. Two cases in particular are worth consideration. In the first case, the transport agreement referred to a website where a jurisdiction clause was published. The second case went a step further: no reference was made to a website, but the carrier argued that it could be expected that a professional shipper has knowledge of the terms and conditions published on the carrier's website.
In Tilly Russ(1) the European Court of Justice (ECJ) held that a jurisdiction clause contained in the bill of lading satisfies the conditions set out in the Brussels I Convention (unaltered in the EU Brussels I Regulation (44/2001)) and thus binds the third party holding the bill of lading if:
The first condition – a valid agreement between the shipper and the carrier on the jurisdiction – is of particular importance. The question is whether a mere reference to a hyperlink is sufficient to conclude that there is consent on the choice of jurisdiction.
The second condition concerns the opposability of the agreement (for further details please see "Supreme Court on relationship between carrier and holder of bill of lading").
The Brussels I Regulation states:
1. If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing'."
The question for the courts was whether a reference to a web address can be considered a valid agreement under Article 23 of the Brussels I Regulation. In the cases in question, the Antwerp Court of Commerce held that such a reference can be valid, because:
The Antwerp Court of Commerce relied heavily on the criteria set out by the ECJ in Salotti.(2) Although Salotti was issued in 1976, the criteria can be modernised as follows:
It has become common practice to publish transport conditions on a carrier's website. Carriers often argue that professional shippers are obliged to verify their websites.
The Antwerp Court of Commerce was confronted with this argument. The carrier argued that it suffices to publish the transport conditions on its website and to include the following wording in the invoices addressed to the shipper: "All transports carried out by the Carrier are subject to its General Conditions of Transport (which are available on request)."
The court held that in doing so in this case, there was no agreement on jurisdiction. The carrier did not explicitly refer to any web address; nor did it provide the shipper with the general conditions.
A jurisdiction clause will be considered a valid agreement in Belgium only if express reference is made to a web address. However, further questions remain unanswered. Does it suffice to mention the company's website in the standard printed logo/name of the company or is express reference needed in the jurisdiction clause? Is it necessary to refer to the company's general website or is the exact web address where the conditions can be found needed?
Besides referring to a website, other electronic forms are also used, such as the replacement of the marks and conditions on a bill of lading with a quick response (QR) code. In such cases, a QR code will be considered valid under Belgian law if it is subject to a sufficient level of encryption.
(1) Partenreederei Ms Tilly Russ and Ernest Russ v NV Haven & Vervoerbedrijf Nova (C-71/83, June 19 1984). European Court Reports 1984, p2417.
(2) Estasis Salotti di Colzani Aimo v Ruwa Polstereimaschinen GmbH (C 24-76, December 14 1976). European Court Reports 1976, p1831.
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