This appeal in cassation is directed against the judgment of the Antwerp Court of Appeal of 25 May 2009.

The dispute concerns the performance of a contract of carriage by sea of a containerised machine from Antwerp, Belgium, to Houston, USA, on the MSC Dymphna under a bill of lading issued in Neunkirchen, Germany. This container could not be delivered to its destination as it fell overboard during the voyage.

The Court of Appeal held that to determine international jurisdiction the Brussels Convention applies, and examined whether the plaintiff had its establishment in Belgium or whether the obligation underlying the claim should be performed in Belgium. The Court ruled that the Belgian Court cannot derive international jurisdiction from art 5.1 of the Brussels Convention because the obligation on which the claim is based - the delivery of the goods - must be performed in Houston in the United States of America. At the same time, the Belgian Court cannot derive jurisdiction from art 2 of the Brussels Convention, since the plaintiff has its establishment in Germany. Nevertheless, the Court of Appeal assumed that it had international jurisdiction to assess the defendants' claim against the plaintiff. At the same time, the Court rejected the application of the invoked jurisdiction agreement in the bill of lading.

The plaintiff appealed in cassation. The plaintiff argued, among others, that the Court of Appeal's decision that art 91A of the Maritime Code allows the Belgian courts to assume international jurisdiction for the present dispute, violated art 91A (and also, as far as necessary, art 5 of the Hague-Visby Rules). The Court of Appeal's ruling that art 91A of the Maritime Code allowed the Belgian courts to hear the present dispute, after it has been established that neither arts 2 nor 5.1 of the Brussels Convention provides a basis for international jurisdiction for this dispute within the scope of the Brussels Convention, therefore ignores the exclusive nature of the European Convention framework and infringes the primacy of those Convention provisions over national law (violation of the general legal principle of the primacy of international law over national law).

Article 91A of the Maritime Code grants Belgian courts international jurisdiction on the basis of art 91 - which contains the transposition into Belgian law of Articles 1 to 10 of the Hague-Visby Rules - to settle disputes regarding carriage of goods under a bill of lading from or to a Belgian port. Such assumption of competence can only be the result of a concrete investigation into the attitude of the competent foreign courts towards art 91A of the Maritime Code. It is for the judge, on the basis of his task as judge, to conduct this investigation into the state of foreign law. He cannot pass this investigation on to the parties to the proceedings, referring to the rules on the burden of proof. In the present case, the Court of Appeal ruled that the plaintiff must provide proof that the foreign courts will apply art 91 of the Maritime Code and that, since this is not proven, international jurisdiction cannot be granted to the US courts or to the German courts. According to the Court of Appeal, the Belgian courts will be the only ones to apply with certainty art 91 of the Maritime Code.

At the same time, the Court of Appeal does not justify, in light of the finding that 'Article 7.2 of the FIATA B/L expressly provides that the agreement is governed by the version of the Hague-Visby Rules that are in force in the loading port, being Antwerp', the correctness of its decision that the Belgian courts will be the only ones who will apply with certainty art 91 of the Belgian Maritime Code.

Held: Appeal in cassation dismissed with costs.

Under art 5.1 of the Brussels Convention, a defendant domiciled in a Contracting State may, in another Contracting State, be sued in respect of obligations under a contract in the court of the place where the obligation giving rise to the claim has been or is to be performed. The performance of a maritime transport contract includes a set of services that cannot be split up, such as the loading and stowage of the goods, and their transport and delivery at the destination port, so that both the place of loading and the place of unloading should be regarded as the places where the obligations which are the subject of maritime transport are performed. It follows that the plaintiff may sue the maritime carrier in the court in the jurisdiction where one of those places is located. As the defendants argue, the Court of Appeal was entitled to rule that the courts in Antwerp have jurisdiction without violating the constitutional and legal provisions indicated. This ground of appeal cannot lead to cassation and is therefore not admissible.

The plaintiff submits that the Court of Appeal did not examine whether the jurisdiction clause in the bill of lading can be regarded as a valid agreement designating the competent court by virtue of a custom in international trade which the parties to such agreements in the industry concerned generally are or ought to have been aware of, as referred to in art 17.1.c of the Brussels Convention. The third-party holder of the bill of lading cannot be regarded as a legal successor of the shipper, but derives its rights against the maritime carrier independently and directly from the bill of lading. The arguments that assume that the third-party holder of a bill of lading is considered to be one of the contracting parties, or has entered into the rights of one of the contracting parties, are based on an error of law and therefore fail.