Netherlands 23 December 2009 District Court Rotterdam (Helvoet Rubber & Plastics Technologies B.V v. Klöckner Desma Elastomertechnik GmbH) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/091223n1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 323248 / HA ZA 09-246
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Switzerland
BUYER'S COUNTRY: Germany
GOODS INVOLVED: Armatures
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
31A [Contracts involving carriage of goods]
31A [Contracts involving carriage of goods]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Website of the Dutch courts <http://www.rechtspraak.nl/>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
23 December 2009 [323248 / HA ZA 09-246]
Translation [*] by Anne Hemmink [**]
1. THE PROCEEDINGS
1.1 Development of the proceedings:
|-||writ of summons dd September18, 2008 and the 67 productions submitted by [Buyer];|
|-||incidental finding of lack of jurisdiction, with 7 productions|
|-||incidental statement of defense, with 4 productions|
1.2 On November 10, 2009 [Buyer] and [Seller] have pleaded their grounds through their attorneys, who made use of written pleadings.
2. THE FACTS
If statements that have been made are acknowledged or insufficiently contradicted, considering the extent of the insofar undisputed in-proceeding submitted productions, the following is established between parties - as far as it is relevant -:
2.1 [Seller] creates systems, machines and molds (hollow shapes) for the processing of rubber. [Buyer] develops and produces simple and compound components of rubber.
2.2 [Buyer] has contracted with [Seller] in order to acquire a 'complete production cell for 'Magnetanker" project' (hereinafter: "the installation"). With this installation [Buyer] is able to produce so-called 'armatures', which form a part of ABS-systems for the car industry. In short, the system injects rubber into the metal parts of these armatures.
2.3 Delivery has not taken place yet.
3.1 The claims of [Buyer] are that the district court by order immediately enforceable:
3.2 [Buyer] has based these claims - in short - on the presumption that [Seller] is liable for the damages suffered by [Buyer] as a result of the installation not being delivered at the agreed moment. This shortcoming must be imputed to [Seller] because (among others) [Seller] appears to be unable to deliver a system that meets the agreed specifications.
4. THE CLAIM AND DEFENSE IN INCIDENT
The incidental claim from [Seller] is that the district court declares itself incompetent to take note of [Buyer]'s claim on [Seller], while ordering [Buyer] to pay the costs of this proceeding.
4.2 [Seller] has based this claim - in short - primarily on the presumption that the German court is exclusively competent because of article 12.1 of [Seller]'s applicable general terms and conditions which set out the choice of forum in accordance with article 23 EEX-Vo. Subsequently,[Seller] has based this claim on the presumption that - unlike [Buyer]'s opinion - the jurisdiction of the district court of Rotterdam cannot result from article 5 (of what?)and under 1 (b) EEX-VO. [Seller] claims that jurisdiction lies with the court where [Seller] has its place of business pursuant to to article 2 (domicile[Seller]) or article 5, heading and under 1 (a) EEX-VO (place of performance of the obligation in question).
4.3 [Buyer] has disputed the claim and its basis. [Buyer] rejects the claim, the costs by law, and argued - in summary - that the parties did not agree on [Seller]'s general terms and conditions and that moreover the requirements for a valid choice of forum are not met. Additonally, considering that the parties agreed to the term "DDU Hellevoetsluis", they agreed on delivery of the installation in Hellevoetsluis from the [Seller]to the [Buyer], so that this district court has jurisdiction pursuant to article 5, heading and under 1 (b) EEX-VO.
5. JUDGMENT IN INCIDENT
Choice of jurisdiction for the German Court in [Seller]'s applied general terms and conditions.
5.1 [Seller] appeals to the choice of jurisdiction of the court in Tullingen (Germany) stated in article 21.1 of its general terms and conditions - the 'General Conditions of Delivery and Payment' (production 1 of [Seller]) -. It covers the following choice of jurisdiction clause. Between parties it is established that this clause - if legally agreed - has exclusive effect to the extent that the competence of the district court Rotterdam is set aside in this case:
"12. Jurisdiction, Governing Law
12.1 In the case of any and all disputes that may arise from the contractual relationship, insofar as the buyer is a merchant possessing full commercial capacity, a legal entity under public law or a special fund under public law, any legal proceedings shall be instituted at the court in Tuttlingen having jurisdiction over us. We are entitled to take legal proceedings against the [Buyer] at his place of jurisdiction."
5.2 Parties dispute about the legal validity of the choice of jurisdiction in [Seller]'s general terms and conditions. Hereby it is in dispute whether [Seller]'s general terms and conditions are applicable on the agreement between parties and whether there is compliance with the requirements of article 23 EEX-VO. [Seller] states that it referred to its general terms and conditions in the first offer of the August 5, 2004 and in the subsequent offers and that [Buyer] never objected to this reference.
5.3 In judgment the following may be considered as established.
(1) [Seller] sent a letter to [Buyer] on August 5, 2004 with a first tender regarding the installation (production 8 of [Buyer]). On the last page of this tender is written:
"This transaction is subject to our "General Terms of Delivery and Payment" unless individual paragraphs have been agreed differently."
(2) [Seller] has sent a few more detailed tenders to [Buyer], in which the same reference was made concerning its general terms and conditions: April 21, 2005 (production 7 of [Buyer]), May 25, 2005 (production 2 of [Seller]), and July 8, 2005 (production 11 of [Buyer]).
(3) On November 15, 2005 during a meeting a verbal agreement was established regarding [Seller] designing, producing and delivering the installation. A large number of contracts between parties preceded this meeting.
(4) This verbal agreement is confirmed by fax of November 21, 2005 (production 18 of [Buyer]). This message stated among other things:
"Because the original order isn't ready yet, we will confirm by this fax our verbal agreement of last Tuesday 15/11/2005 for the delivery of a complete production cell for the product "Magnetanker". We hope to send you are written order with all the agreed details on next Wednesday at the latest. Our ref. no. for this order will be: IO-0029756-1."
(5) On November 22, 2005 [Buyer] sent (under that order number) [Seller] a detailed "purchase order" for a "Complete production cell for "Magnetanker" project" (production 19 of [Buyer]). It said among other things: "All other not mentioned conditions according to the [Buyer] Purchasing Conditions". [Seller]'s general terms and conditions are not mentioned in this purchase order.
(6) By e-mail of December 7, 2005 (production 20 of [Buyer]) [Seller] announced to [Buyer]: "thank you again for your order. Enclosed please find our order confirmation TA 28805". The enclosed detailed "order confirmation", which referred to [Buyer]'s order dd November 22, 2005, stated among other things the under (1) represented reference to the general terms and conditions of [Seller].
(7) Hereinafter parties exchanged e-mails, among other things relating to the applicability of the general terms and conditions (productions 68,69,70 of [Buyer]):
|-||December 22, 2005 from [Buyer] to [Seller]: "We have agreed the applicability of the [Buyer]
General Purchasing Conditions, however, you confirm with your General Terms of Delivery and
Payment". That is not acceptable to us."
|-||January 10, 2006 from [Seller] to [Buyer]: "The [Buyer] General Purchasing Conditions and our
General Terms and Conditions are valid. In case they are contradictory the legal regulations are valid."|
|-||January 24, 2006 from [Buyer] to [Seller]: "OK, but than only the Dutch legal regulations."|
|-||February 14, 2006 from [Buyer] to [Seller]: "we have agreed that your General Conditions are not
|-||February 17, 2006 from [Buyer] to [Seller]: "we have agreed that neither the [Seller] general conditions nor the [Buyer] general conditions are applicable to this order, however on the latest order confirmation TA28805.1 the general conditions of [Seller] are still mentioned. We don't agree with that."|
(8) In the latter, changed "purchase orders" from [Buyer] dd January 31, 2006, March 28, 2006 and June 21, 2006 (productions 21, 22, 23 of [Buyer]) there was always a reference to the "[Buyer] General Purchase Conditions".
(9) The latter "order confirmation" from [Seller] dd June 27, 2006 (production 24 of [Buyer]) contains the earlier mentioned reference to the general terms and conditions of [Seller].
5.4 The district court comes to the conclusion - based on the above mentioned - that it can not be assumed that the general terms and conditions of [Seller] as agreed between the parties are to be considered as meant under article 23 EEX-Vo.
Despite the fact that [Seller] has mentioned in her successive tenders that she desires the applicability of her general terms and conditions, it does not show that this applicability has been accepted by [Buyer], either expressly or implied. Parties have had contact during a long period of time regarding the conclusion of the agreement (price according to the order confirmation of November 22, 2005 €424.000,-). The verbal order was confirmed in writing shortly afterwards, then the parties have corresponded for some time about whether or not to apply the general terms and conditions. [Seller] could not conclude from the above mentioned course of affairs that [Buyer] agreed implicitly with the applicability from the general terms and conditions of [Seller] or that [Buyer] could be considered to agree with the applicability. It can be left aside whether [Buyer], stated by [Buyer] but disputed by [Seller], returned [Seller]'s tenders with deletion from the reference to the general terms and conditions of [Seller]. It furthermore can be left aside whether [Seller] should have (had) approached her general terms and conditions to [Buyer].
The abovementioned means that none of the cases of a legally choice of jurisdiction under article 23 EEX-Vo are met. [Seller] has not stated facts which, if proven, would lead to a different conclusion.
Jurisdiction under article 5 heading and under 1 EEX-VO.
5.5 [Buyer] states that parties entered into a purchase agreement and that the installation had to be delivered subject to DDU Hellevoetsluis (delivery duty paid Hellevoetsluis), so that the district court Rotterdam has jurisdiction under article 5 heading and under 1 sub b first indent EEX-VO.
5.6 [Seller] argues against that there was no simple purchase agreement within the meaning of that provision, because the main point of the agreement was situated in the parties' joint development of the essential "custom made" system components of the installation, namely the mould and the "handling system". The parties have worked considerable time intensively after closing the contract to design and develop those components. The place of performance of this cooperation was Fridingen, [Seller]'s production facility. Under article 5 heading and under 1 sub a EEX-VO the place of performance of the obligation in question is in Fridingen, so that the German court has jurisdiction. Since that the fundamental system components had to be designed (by [Seller]) first, the agreement also has the characteristics of a contract for the provision of services. This element comes first within the agreement. These services are provided in Fridingen.
Moreover, the condition DDU Hellevoetsluis does not mean that Hellevoetsluis should be considered as place where the installation had to be delivered. This was merely a cost clause and [Seller] fulfilled its obligation to deliver the installation in Fridingen to the carrier for transmission to [Buyer]. According to [Seller].
5.7 The first question is whether the agreement should be qualified as a purchase agreement. There is a purchase agreement within the meaning of article 5 heading and under 1 sub b first mark EEX-VO if the one party, the [Seller], commits itself to the other party, the [Buyer], to deliver an object and to transfer the title and that the other party receives the object and pays a price therefore.
Hereby it is irrelevant whether the seller manufactured the object himself or that a third party manufactured it. It furthermore is irrelevant for the qualification question whether the seller and the buyer have agreed that the seller will manufacture the object himself since such a situation does not stand in the way that the part of the agreement regarding the delivery, the title transfer, the purchase and the payment has to be qualified as part of the purchase agreement.
5.8 Between parties it is not in dispute that on grounds of the agreement concluded between them [Seller] is obliged to develop, build and deliver the installation on behave of respectively for [Buyer], for which [Buyer] is due a price. The agreement should therefore at least partly be qualified as a purchase agreement.
The in article 5 stipulated heading and under 1 EEX-Vo does not oppose such a 'partly qualification', so that the under b first mark stipulated is applicable to the 'purchase part' of the agreement.
5.9 The contractual agreements that are the underlying claim according to [Buyer]'s writ of summon are all obligations resulting from the aforementioned 'purchase part' of the agreement. In view of what has been put forward in the proceedings so far, the court does not follow [Seller] in its view that in the underlying situation the element 'cooperation' or 'delivery of services' in the agreement stood on the foreground and that [Buyer] was just after the development of the installation.
5.10 Since [Seller] and [Buyer] are both established in different countries that are parties of the Vienna Sales Convention (CISG), this convention is applicable on the agreement to deliver the installation.
5.11 It is established that parties (eventually) agreed upon the condition "DDU Hellevoetsluis." This condition means that the goods had to be delivered in Hellevoetsluis as meant in heading of article 31 CISG. The 'acceptance test' had to take place in Hellevoetsluis.
5.12 The conclusion is that in view of article 5 heading and under 1 under b second mark EEX-Vo the district court has jurisdiction to take note of [Buyer]'s claims.
6. THE DECISION
The district court,
In the incompetent incident,
Reject the claim;
Declares itself competent to take note of [Buyer]'s claims;
Orders [Seller] to compensate any costs, until this decision on the side of [Buyer] estimated until now on nil advances and on €6.442,-- for attorney's fee;
Sets the case down for hearing on Wednesday February, 3 2010 for conclusion of reply.
This decision was given by judge van Zelm van Edik.
Pronounced in public.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Netherlands is referred to as [Seller] and the Defendant of Germany is referred to as [Buyer].
** Anne Hemmink is finishing her Masters in Private Law at the University of Utrecht and is specializing in International Commercial Law and Corporate Law.Go to Case Table of Contents