In Airgas USA v Common Africa Traces (7/11/2025 ECLI:NL:HR:2025:1665), the Supreme Courtroom of the Netherlands thought-about the interpretation of a so-called ‘Paramount clause’ in a invoice of lading. Such clauses generally signpost which guidelines govern the worldwide carriage of products by sea. The Courtroom addressed such clause as a selection of legislation and held that article 3(1) of the Rome I Regulation doesn’t preclude the events from agreeing on such clause.
Info
The dispute involved legal responsibility for fireplace injury that occurred in the course of the discharge of harmful items (refrigerated liquid ethylene in containers) transported by sea from the USA to Angola underneath a invoice of lading.
The circumstances of the invoice of lading offered for jurisdiction of the Dutch courts; that is how the events Airgas USA (Radnor, Pennsylvania, US) and Common Africa Traces (Limassol, Cyprus) got here to litigate within the Netherlands.
These circumstances additionally included a so-called ‘Paramount clause’. Such clauses have been utilized in contracts for the worldwide carriage of products by sea, primarily to designate which uniform substantive legislation conference on the carriage of products by sea applies. The clause on this case offered that Dutch legislation ruled the contract and declared that if the products have been carried by sea from or to a port in the US, the 1936 Carriage of Items by Sea Act of the US (COGSA) utilized. The COGSA is the U.S. implementation of the 1924 Hague Guidelines.
Dispute
Because the regimes of legal responsibility diverge throughout the conventions containing uniform legislation, and throughout nationwide legal guidelines, this dispute revolved across the selection of legislation. The cassation declare superior numerous arguments towards the appliance of COGSA (and in favour of the necessary utility of Dutch legislation which implied a special limitation of legal responsibility).
The primary arguments have been that COGSA is just not a ‘legislation of a rustic’ which may be chosen inside the which means of the Rome I Regulation, that even when the GOGSA utilized, its utility shouldn’t put aside these provisions of Dutch legislation that is probably not modified by contract, and that the decrease courts utilized the COGSA incorrectly (requiring the Courtroom to evaluate this utility, arguing that the COGSA’s content material was equivalent to the Hague-Visby Guidelines and to Dutch legislation).
Choice
In its determination, the Supreme Courtroom of the Netherlands referred to article 3(1) of the Rome I Regulation. First, it held that, in line with this provision, the events are free to decide on the legislation governing their contract. They could select both the legislation relevant to all the contract or the legislation relevant to a particular a part of the contract. This a part of the contract is then ruled by the chosen guidelines of legislation, which exchange nationwide legislation in its entirety, together with these guidelines of nationwide non-public legislation which can’t be modified by contract (at [3.1.2]).
Second, the Courtroom held that article 3(1) of the Rome I Regulation doesn’t preclude the events from designating part of a nationwide authorized system — and never that system in its entirety — because the relevant legislation. On this case, the events had the best to decide on COGSA as relevant legislation, whereas for issues not regulated within the COGSA the events ought to fall again on Dutch legislation (at [3.1.3]).
Lastly, the Courtroom reminded that the query of whether or not decrease courts appropriately utilized international legislation can not, in precept, result in a declare in cassation underneath Dutch civil process legal guidelines. Provided that the decrease courts had in contrast the foundations of the authorized methods doubtlessly relevant and held that the result was equivalent to Dutch legislation might an exception be made; this was not the case on this dispute (at [3.2.1] e.v.).
Remark
The choice in Airgas USA v Common Africa Traces sheds gentle on the precise results, in Dutch courts, of a contract clause broadly utilized in contracts for the worldwide carriage of products by sea. This enhances authorized certainty. On the similar time, one inevitably runs into numerous questions cognate to this determination. For instance, ought to the Courtroom’s issues on partial selection of legislation be understood as confined to ‘Paramount clauses,’ or have they got broader implications? On this regard, does it matter that guidelines resembling COGSA implement a world treaty (the Hague Guidelines)? Or is the ‘partial’ character of the selection of legislation associated solely to carriage to or from U.S. ports? These and undoubtedly different questions are themes for additional reflection.
For inspiration: the clause that gave rise to the dispute on this case as quoted by the Supreme Courtroom of the Netherlands at [2.1] is that this:
‘The legislation of The Netherlands, during which the Hague-Visby Guidelines are included, shall apply. However if the legislation of every other nation can be compulsorily relevant, the Hague-Visby Guidelines as laid down within the Treaty of Brussels of twenty fifth August 1924 and amended within the Protocol of Brussels of twenty third February 1968 shall apply, save the place the Hamburg Guidelines of the UN Conference of the Carriage of Items by Sea of 1978 would apply compulsorily, during which case the Hamburg Guidelines shall apply. If any stipulation, exception and situation of those circumstances can be discovered inconsistent with The Hague-Visby Guidelines or Hamburg Guidelines, or any obligatory legislation, solely such stipulation, exception and situation or half thereof, because the case could also be, shall be invalid. In case of carriage by sea from or to a port of the USA, this Invoice of Lading shall have impact topic to the provisions of the Carriage of Items by Sea Act of the US, authorised sixteenth April 1936, which shall be deemed to be included herein, and nothing herein contained shall be deemed a give up by the provider of any of its rights or immunities or a rise of any of its duties or liabilities underneath mentioned Act. The provisions acknowledged in mentioned Act shall, besides as possibly in any other case particularly offered herein, govern earlier than the products are loaded on and after they’re discharged from the ship and all through all the time the products are in custody of the provider. The provider shall not be liable in any capability in anyway for any delay, non-delivery or mis-delivery, or lack of or injury to the products occurring whereas the products usually are not within the precise custody of the provider.’
