867 F.2d 697 (D.C. Cir. 1989), 88-7077, Commerce Consultants Intern., Inc. v. Vetrerie Riunite, S.p.A.

Docket Nº:88-7077.
Citation:867 F.2d 697
Party Name:COMMERCE CONSULTANTS INTERNATIONAL, INC., Appellant, v. VETRERIE RIUNITE, S.p.A., Appellee.
Case Date:February 14, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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867 F.2d 697 (D.C. Cir. 1989)

COMMERCE CONSULTANTS INTERNATIONAL, INC., Appellant,

v.

VETRERIE RIUNITE, S.p.A., Appellee.

No. 88-7077.

United States Court of Appeals, District of Columbia Circuit.

February 14, 1989

Argued Nov. 22, 1988.

Russell J. Gaspar, Washington, D.C., for appellant.

Dario Ceppi, New York City, for appellee. Mark C. Ellenberg and David F. Williams, Washington, D.C., also entered appearances for appellee.

Before EDWARDS, WILLIAMS, and FRIEDMAN, [*] Circuit Judges.

Opinion for the Court filed by Circuit Judge FRIEDMAN.

FRIEDMAN, Circuit Judge:

This is an appeal from an order dismissing, for improper venue, a breach of contract suit by an American corporation against the other party to the contract, an Italian corporation. Commerce Consultants Int'l v. Vetrerie Riunite, No. 87-2104 (Jan. 28, 1988, D.D.C.). The ground

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for dismissal was that, under the contract, suit could be brought only in an Italian court. We affirm.

I

A. The appellant, Commerce Consultants International, Inc. (Commerce Consultants), a District of Columbia corporation, entered into a written contract with Vetrerie Riunite, S.p.A. (Riunite), an Italian corporation, under which Commerce Consultants became Riunite's exclusive agent for the sale of Riunite's lenses in North America. The written agreement was drafted in English for Commerce Consultants by its employee Michael Galbraith, who was fluent in Italian, but not a lawyer. According to Galbraith's affidavit, Galbraith "was the sole person responsible for all of the relations between" the two companies.

The draft of the agreement that Galbraith sent to Riunite's representative in the negotiations, Rossi, contained the following provision:

13. The validity, enforceability and interpretation of this agreement shall be determined and governed by the laws of the District of Columbia, U.S.A.

In a letter that accompanied the agreement, written in Italian, Galbraith stated: "Of course, should you wish to modify any provision, we would be pleased to comply, based on your comments."

In response, Rossi stated in a Telex that his company was "in agreement with all points" except for two, one of which was (as translated into English by Galbraith):

Responsible will be the Verona court rather than the United States one.

Galbraith then redrafted paragraph 13 of the agreement to read:

13. The validity, enforceability and interpretation of this agreement shall be determined and governed by the appropriate court of Verona, Italy.

Galbraith sent the revised agreement to Rossi, and Riunite executed it.

B. More than a year after the contract was signed, Commerce Consultants filed in the district court a suit against Riunite alleging that Riunite had breached the contract by itself selling its products...

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