Bunker delivery by NuStar in the port of Houston, Texas (USA) to the seagoing vessel Oste, owned by Waverley and time chartered by Caribe Tankers. The delivery took place based on the basis of a Sales Agreement between NuStar as seller and ship's agent OW Bunker as buyer. NuStar’s General Terms and Conditions that were referred to in the agreement contained a choice for Texan law and a forum selection clause: 'Any judicial proceedings brought in connection with this Agreement may be brought in any court of competent jurisdiction in Houston, TX […]'. After having effected a conservatory attachment directed against Waverley on the Oste in Curaçao on 20 November 2014 - which attachment was lifted after Waverley and Caribe Tankers provided security by means of a bank guarantee issued by MCB (domiciled in Curaçao) - NuStar started an action (on the merits) to demand payment from OW Bunker, Waverley and Caribe Tankers for the fuel supplied to the Oste. NuStar claimed that Waverley’s and Caribe Tanker’s payment obligation was primarily based on the fact that the Oste’s Chief Engineer stamped and signed NuStar’s Marine Fuel Delivery Note, which made Waverley and Caribe Tankers a party to the Sales Agreement between OW Bunker and NuStar. Waverley and Caribe Tankers disputed the jurisdiction of the first instance court of Curaçao. OW Bunker did not appear in court. 

Held: The fact that MCB has its domicile in Curaçao does not create jurisdiction with respect to the other defendants, since there is no connection – within the meaning of art 103 of the Dutch Code of Civil Procedure (DCCP) – between the claim against MCB to pay out under the bank guarantee and the claims against the other defendants. 

The Curaçao Court can - as far as it concerns Waverley - base its jurisdiction on the Arrest Convention 1952, which has been in force for Curaçao since 10 October 2010. The fact that at the time of the attachment the Oste flew the flag of Liberia – a country that is not a party to the Arrest Convention – does not change this. Article 767 of the DCCP (Dutch national forum arresti provision) also creates jurisdiction with regard to Waverley as judgments from the jurisdictions that may be relevant here – Delaware, Marshall Islands, Texas – cannot be enforced in Curaçao in the absence of any convention or other legal provisions to that effect. A procedure based on art 431(2) of the DCCP concerning the recognition of those judgments cannot be equated with obtaining an enforceable title as referred to in art 767 of the DCCP. The circumstance that the arrest is replaced by a bank guarantee does not change this, since art 767 of the DCCP declares the forum arresti to be the court that has jurisdiction on the merits, also in the event where the attachment is lifted against security.  

However, the forum selection clause contained in NuStar’s General Terms and Conditions precludes the jurisdiction of the Curaçao Court with respect to OW Bunker, Waverley and Caribe Tankers and the clause unmistakably has an exclusive character with regard to the claims at issue here. The fact that the clause allows NuStar the possibility to effect attachments in other jurisdictions does not alter this. Waverley and Caribe Tankers dispute the applicability of the Terms and Conditions, but do so without any substantiation, so that within the context of this procedural issue – in any case with regard to the jurisdiction clauses – they are held to be also bound by the Terms and Conditions. The more so in view of the factual and legal connection with America, the applicability of Texas law and the absence of a real connection with the jurisdiction of Curaçao, Waverley’s and Caribe Tanker’s reliance on the forum selection clause is not unacceptable on the basis of requirements of reasonableness and fairness (good faith).