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France / 18 April 2005 / France, Cour d'appel de Basse Terre / Société Groupama Transports v. Société MS Régine Hans und Klaus Heinrich KG / 04/00597

Country	France
Court	France, Cour d'appel de Basse-Terre (Court of Appeal of Basse-Terre)
Date	18 April 2005
Parties	Société Groupama Transports v. Société MS Régine Hans und Klaus Heinrich KG
Case number	04/00597
Applicable NYC Provisions	II | II(2)
Source	Original decision obtained from the registry of the Cour d’appel de Basse Terre
Languages	French
Summary	A French company, “Deher Frères”, entered into a contract with a German company, “MS Regine”, for the transportation of a passenger ship from Toulon to Pointe-à-Pitre, under the FIOS Rules pursuant to a booking note issued in Amsterdam on 31 March 1999 and a bill of lading dated 21 April 1999. It was agreed that the loader would be responsible for the handling of the ship. The ship was damaged on 21 April 1999 during boarding operations. On 19 April 1999, the insurer of Deher Frères, Groupama, commenced proceedings before the Tribunal Mixte de Commerce de Basse-Terre (Commercial Court of Basse-Terre), claiming damages against MS Regine . MS Regine objected in limine litis to the jurisdiction of the Tribunal Mixte de Commerce by invoking the arbitration clause provided under Article 35 of the booking note. On 7 January 2004, the Tribunal Mixte de Commerce found that it lacked jurisdiction and referred the Parties to arbitration before the Chambre Artisanale d’Hambourg. Groupama objected to this decision (by means of a “contredit”) before the Cour d’appel de Basse-Terre (Basse-Terre Court of Appeal) on the grounds that it was contrary to Article II(2) NYC, as the contract containing the arbitration clause had been communicated to Deher Frères on 26 April 1999, i.e. after the ship was damaged. The Cour d'appel de Basse-Terre dismissed the action and referred the parties to arbitration. It first noted that the validity of the arbitration clause was governed by Article II NYC; and added that Article II(2) NYC included “agreement in writing” included in “an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams”. It then noted that, on the basis of the documents produced by the Parties, it was established that the ship was presented to the loader on 21 April 1999 pursuant to the booking note issued 20 days before transportation and that its terms were known to Deher Frères on 2 April 1999. It noted further that the loading of the ship was done in accordance with the booking note, without any objections being raised by the loader from 31 March to 21 April 1999. On this basis, the Cour d’appel de Basse-Terre held that the owner of the ship had knowledge of the arbitration agreement and that therefore the arbitration agreement was binding on its insurer.
affirmed by :	France / 21 November 2006 / France, Cour de cassation / Société Groupama Transports v. Société MS Régine Hans und Klaus Heinrich KG / 05-21.818
see also :	II / 2. ANALYSIS (II) / B. Meaning of 'agreement' / §17 II / 2. ANALYSIS (II) / B. Meaning of 'agreement' / §21
Link to the record	https://newyorkconvention1958.org/index.php?lvl=notice_display&id=906&opac_view=6

Attachment (1)

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