INTERCONTAINER INTERFRIGO SC (ICF) V BALKENENDE OOSTHUIZEN BV

Case C-133/08 (NYR), European Court of Justice, 6 October 2009

Choice of law - Absence of choice by the parties - Whether charterparty a contract of carriage - Rome Convention on the law applicable to contractual obligations, article 4, 10

In a case before the Netherlands courts, the claimant (ICF) sought an order for payment by the two defendants of unpaid invoices issued on the basis of a contract for the hire of train wagons (the charterparty) between the parties. ICF was to make train wagons available and transport them, and the defendants would lease them to third parties. There was no written contract between the parties. ICF did send the defendant a written contract stipulating Belgian law but it was not signed. The parties gave effect to their agreement for a period and while ICF's first invoice remained unpaid, the second was paid. In the proceedings before the Netherlands court, the defendants argued that Netherlands law applied and that therefore the claim was time-barred. Although the parties had agreed a contract and had implemented it for a time, they had not signed it and therefore the Netherlands court held that there was no valid choice of law and applied article 4 of the Rome Convention 1980. It referred questions on the application of the article to the ECJ for a preliminary ruling.The European Court of Justice held that the presumption in article 4(4) - namely that the law applicable to contracts of carriage would be determined by the main place of business of the carrier, if that place is also the place of loading, place of discharge or place of business of the consignor - applied to charterparties only when the main purpose of the contract was the carriage of goods, and not when it was merely the provision of a means of transport. Further, for a part of a contract to be determined by another law than the rest of the contract, that part of the contract must be independent. This rule applied equally to contracts of carriage which would be subject to article 4(4) in their entirety, unless the part relating to carriage was independent of the contract. Third, the presumption in article 4(4) was subject to evidence that the contract had better connections to some other legal system, per article 4(5).