The plaintiff B had its headquarters in Switzerland. It was the owner of the ship B, an ocean-going multi-purpose cargo ship, and operated ocean transport commercially. The defendant W was a timber trading company based in Austria. Under a purchase contract dated 12 March 2004, the defendant was obligated to deliver pine wood to Libya. The plaintiff contracted with a charterer, based in Genoa, acting for the defendant for the shipment of 675,815 m³ Austrian pine wood in 172 pieces and 314,900 m³ red and yellow American pine wood in 79 pieces by sea transport from Slovenia to Libya.

The following jurisdiction clause was contained in the bill of lading: 'Any dispute arising from this bill of lading shall be settled in the country in which the carrier has his main place of business and the law of that country applies, unless otherwise stated in this document.'

The plaintiff brought a claim of EUR 73,565 and USD 85,402.07 against the defendant in the Austrian courts. The legal relationships between the defendant and the charterer commissioned by it on the one hand, and the plaintiff on the other hand, were regulated by the carriage contract concluded on 22 June 2004 (the charterparty). This contained a FIOS (Free In and Out, Stowed) clause, which meant that the shipper (the defendant or its agent) had taken over the loading and unloading as well as the stowing and securing of the goods. Contrary to its information that 79 pieces of cargo were parquet pine (apparently meaning red and yellow American pine wood), the defendant only delivered conventional Austrian pine wood on trucks. Since it was a letter of credit transaction, payment had been made, and the goods delivered did not comply with the bill of lading. The ship was arrested in Libya at the request of the Libyan consignee to secure its claim under the bill of lading due to the depreciation of EUR 111,789.50. The arrest was only lifted when this amount had been guaranteed in favour of the consignee as security, so the B was unable to leave the port until 15 July 2004. Under Libyan maritime law the carrier was liable for the correctness of the information in the bill of lading, despite the reservation (the FIOS clause).

The defendant objected to a lack of domestic jurisdiction based on the jurisdiction clause in the bill of lading. It was agreed between the plaintiff as carrier and the defendant as charterer that all disputes relating to the sea transport would be decided by the competent court and according to the law of the country in which the carrier, ie the plaintiff, had its main place of business. The Court at the plaintiff's headquarters in Switzerland was therefore exclusively competent to decide the case. The plaintiff's claims were based exclusively on the bill of lading with the allegation of an allegedly incorrectly described cargo. The bill of lading was the only contract where the freight broker and carrier, or carrier and recipient were contractual parties. The charterparty was concluded exclusively between the carrier and the charterer. The defendant was not a party to this contract. The charterparty terms were therefore completely meaningless for a claim arising on the basis of the bill of lading, so that in this case only the jurisdiction clause in the bill of lading should be applied.

The first Court rejected the objection of a lack of domestic jurisdiction. It was of the opinion that the claims assigned by the buyer were not covered by the bill of lading and thus not by the jurisdiction agreement, so that it had jurisdiction.

The Court of Appeal amended the resolution to dismiss the lawsuit. The carriage contract (charterparty) constituted a contractual obligation that was linked to the laws of different States. Since neither the place of loading nor the place of unloading nor the main branch of the consignor were at the same place as the main branch of the carrier at the time of the conclusion of the contract, the applicable law was to be determined according to art 4.2 of the Rome I Convention. The characteristic performance in a freight transport contract is the transport. Since the circumstances did not show that the contract had closer links with another State, according to art 4 of the Rome Convention the law of the State of the plaintiff's main place of business was to be applied to the contract, ie Swiss law. One arrives at the same result by assuming that the parties with the bill of lading have also made a valid choice of law for the contract of carriage. According to the choice of law in the bill of lading, the law of the country in which the carrier, ie the plaintiff, has its main place of business should be applied.

The charterparty, the freight contract in general, and the bill of lading are regulated by Swiss law in the Swiss Maritime Code (SSG). According to art 101 SSG, the carrier undertakes pursuant to the carriage contract to carry out transport of goods by sea as agreed with the shipper against payment of freight. When applying and interpreting the provisions, the Hague Rules and Protocols should be taken into account. According to art 1.b of the Hague-Visby Rules, 'contract of carriage' applies only to 'contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same'. The charterparty between the charterer acting on behalf of the defendant and the plaintiff contained no choice of law and no agreement on jurisdiction. The bill of lading is fundamentally decisive for the legal relationship between the carrier and the consignee, while the provisions of the sea carriage contract remain relevant for the legal relationship between the carrier and the carrier. The freight contract sets the framework for the bill of lading, which by reference incorporates the conditions of the bill of lading in so far as the freight contract did not make any regulations. The defendant was not only the shipper, but also the unloader of the goods to be transported by the plaintiff. In the absence of a statement to the contrary, it can be assumed that the defendant expressly accepted the conditions mentioned therein by accepting the bill of lading. The action should be dismissed.

The Court of Appeal ruled that a revision appeal was admissible because there was no case law of the Supreme Court on this question of international jurisdiction.

Held: The revision appeal is permitted. It is also partially justified.

The agreement on jurisdiction was effectively concluded in accordance with art 17 of the Brussels I Regulation. Both parties are constantly active in this industry (the defendant itself submits that it made frequent deliveries of wood to Libya in the same way). The question is whether the agreement on the place of jurisdiction in the bill of lading includes the claims from the freight contract that are asserted here. Jurisdiction clauses in bills of lading, even though unilaterally issued by the carrier, are effective in relation to charterers due to international trade practice. Regardless of the assumption as to commercial usage, the same result is reached if one examines the legal relationships under Swiss law, which is to be applied to the contract of carriage even without a choice of law, which the Court of Appeal has already stated correctly should apply.

Pursuant to the charter contract, the shipowner as the carrier undertakes, in return for payment, to make space on a specific ocean-going vessel available to the shipper in whole or in part for a specific time or for a specific sea voyage, for which a written document (charterparty) is issued upon request (arts 94(1) and (2) SSG). If the carrier has undertaken to transport goods by sea under the charter contract, the provisions of the sea freight contract apply with regard to its rights vis-à-vis the shipper and recipient and its liability for the goods accepted for transport (art 95(3) SSG). With the sea freight contract, the carrier undertakes to carry out the sea transport of goods agreed with the shipper against payment of freight (art 101(2) SSG). The shipper is liable for any damage resulting from its incorrect information about the goods (art 106(2) SSG). The bill of lading is a document in which the carrier acknowledges having received certain goods on board a seagoing ship and at the same time undertakes to transport these goods to the agreed destination and to deliver them there to the authorised holder of the document (art 112 SSG). As soon as the goods are taken on board, the shipper has the right to be issued a bill of lading (an on-board bill of lading: art 113(1) SSG)). The bill of lading is decisive for the legal relationship between the carrier and the recipient of the goods (art 115(1) SSG). It is a document of title according to art 925 of the Civil Code (art 116(1) SSG). The provisions of the freight contract are decisive for the legal relationship between the carrier and the shipper. The provisions of the bill of lading are accepted as the will of the contract, provided that no deviations are agreed in writing (art 115(2) SSG).

The Swiss legal situation regarding international carriage of goods by sea law essentially corresponds to German law, so that this area of law can also be used to assess the pending legal issues.

It is undisputed that the defendant was not only the shipper, but also the unloader. According to cl 26 of the charter party, the issuing of bills of lading was permitted. An order bill of lading was issued. In principle, the freight contract and the bill of lading are two different legal relationships. The sea freight contract is usually also a contract in favour of third parties, namely the recipient named in the freight contract. In general, jurisdiction clauses comprise all claims arising from sea transport. In the present case, there is no incorporation clause in the contract of carriage with regard to the bill of lading. The bill of lading regulates the legal relationship between the carrier and the recipient, but it is based on the freight contract, which does not contain any deviating terms. The consignor is the carrier's contractual partner and the bill of lading documents the contract. The provisions of the bill of lading are accepted as the will of the contract in accordance with art 115(2) SSG, provided - as here - no deviations have been agreed in writing. Between the parties, the provisions of the bill of lading must therefore also apply to the charterparty, which is to be treated as a freight contract within the meaning of art 95 SSG. The charterparty was concluded by the charterer on behalf of the defendant, so that a freight contract exists between the plaintiff and the defendant.

The agreement on the place of jurisdiction named in the bill of lading thus includes both the claims arising from the bill of lading itself and those from the underlying freight contract. The agreement on the place of jurisdiction is intended to resolve all disputes arising in connection with the transport before a court. This means that the plaintiff's own claims for damages, which are based on the fact that the defendant freight forwarder and unloader allegedly provided false information for the issue of the bill of lading and thereby caused the damage by virtue of the ship being arrested in Libya, are covered by the jurisdiction clause, and therefore fall within the exclusive jurisdiction of the Swiss courts. The appealed Court lacks international jurisdiction over these claims.