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MSG (1997) FACTS Proceedings between Mainschiffahrts­Genossenschaft eG (MSG) ('MSG'), an inland­
waterway transport cooperative based at Würzburg (Germany), and Les Gravières
Rhénanes SARL ('Gravières Rhénanes'), whose registered office is in France,
concerning compensation for damage caused to an inland­waterway vessel which
MSG owned and had chartered to Gravières Rhénanes by a time charter concluded
orally between the parties. That vessel operated a shuttle service on the Rhine between 1 June 1989 and 10
February 1991, chiefly carrying shipments of gravel. With some exceptions, the places
of loading were all located in France, whilst the cargo was invariably unloaded in
France. According to MSG, the handling equipment used by Gravières Rhénanes to
unload the cargo damaged its vessel. The main proceedings are for the sum of DM 197
284, namely the difference between the amount paid by Gravières Rhénanes' insurers
and the amount claimed by MSG. MSG brought an action before the Schiffahrtsgericht (Maritime Court) Würzburg,
taking the view that the third hypothesis mentioned in the second sentence of the first
paragraph of Article 17 of the Convention entitled it to do so on the ground that the
parties had validly designated Würzburg, MSG's principal place of business, as
the place of performance and the Würzburg courts as having jurisdiction. It appears from the order for reference that, when the contractual negotiations had
been completed, MSG sent Gravières Rhénanes a commercial letter of confirmation
containing the following pre­printed statement: 'The place of performance is Würzburg and the courts for that place have
exclusive jurisdiction.' Moreover, MSG's invoices also mentioned that forum directly and by reference to the
conditions of the bill of lading. Gravières Rhénanes did not challenge the commercial
letter of confirmation and paid all invoices without objection. QUESTIONS: Can an agreement conferring jurisdiction in international trade or commerce in
accordance with the third hypothesis mentioned in the second sentence of the first
paragraph of Article 17 of the 1978 version of the Brussels Convention also be
concluded by one party's not contradicting a commercial letter of confirmation
containing a pre­printed reference to the courts of the consignors' place of
business having sole jurisdiction or must there have been in every case prior
consensus with regard to the content of the letter of confirmation?
Is an oral agreement on the place of performance (Brussels Convention, Article 5) to
be recognized even if it is not intended to fix the place at which the person liable
has to perform the obligations incumbent on him, but is intended solely to

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