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Chateau des Charrnes Wines Ltd. v. Sabate USA inc.
328 F. 3d 528, C. A. 9 ( cal.)2003
PER CURIAM
Chateau des Charrnes Wines, Ltd. (" Chateau des Charmes"), a Canadian company, appeals the dismissal of its action for breach of contract and related claims arising out of its purchase of wine corks fromSabate,S.A.(" Sabat6 France" ), a French company, and Sabat6 USA, Inc. (" Sabat6 USA"), a wholly owned Californiasubsidiary. The district court held that forum selection clauses in the invoices that Sabate France sent to Chateau des Charmes were part of the contract between the parties and dismissed the case in favor of adjudication inFrance. Because we conclude that the forum selection clauses in question were not part of any agreement between the parties, we reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The material facts pertinent to this appeal are not disputed. Sabat6 France manufactures and sells special wine corks that it claims will not cause wines to be spoiled by "cork taint", a distasteful flavor that some corks produce. It sells these corks through a wholly ownedCaliforniasubsidiary, Sabat6 USA.
In February 2000, after some preliminary discussions about the characteristics of Sabat6's corks, Chateau des Charmes, a winery from Ontario, Canada, agreed by telephone with Sabat6 USA to purchase a certain number of corks at a specific price.
The parties agreed on payment and shipping terms. No other terms were discussed, nor did the parties have any history of prior dealings, Later that year, Chateau des Charmes placed a second telephone order for corks on the same terms. In total, Chateau des Charmes ordered 1.2 million corks.
SabateFranceshipped the corks toCanadain eleven shipments. For each shipment, Sabat6 France also sent an invoice. Some of the invoices arrived before the shipments, some with the shipments, and some after the shipments. On the face of each invoice was a paragraph in French that specified that "Any dispute arising under the present contract is under the sole jurisdiction of the Court of Commerce of the City ofPerpignan". On the back of each invoice a number of provisions were printed in French, including a clause that specified that "any disputes arising out of this agreement shall be brought before the court with jurisdiction to try the matter in the judicial district where Seller's registered office is located." Chateau des Charmes duly took delivery and paid for each shipment of corks. The corks were then used to bottle Chateau des Charmes' wines.

At first, the oral agreements between Sabate USA and Chateau des Charmes as to the kind of cork, the quantity, and the price were sufficient to create complete and binding contracts. The terms of those agreements did not include any forum selection clause.
Next, the Convention clearly states that a "contract may be modified or terminated by the mere agreement of the parties. And also, " additional or different terms relating, .....to the settlement of disputes are considered to alter the terms of the offer materially." There is no indication that Chateau des Charmes conducted itself in a manner that evidenced any affirmative assent to the forum selection clauses in the invoices. Rather, Chateau des Charmes merely performed its obligations under the oral contract. So, a party's attempts to alter an agreement unilaterally do no so effect.

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(1).乙公司具有提起行政诉讼的原告资格(或乙公司有权对恢复专利权的行政行为提起行政诉讼)。因为专利局恢复甲公司的专利权对乙公司将要或必然产生损害，乙公司与恢复专利权的行政行为具有法律上的利害关系或法律上的权利义务关系。 《行政诉讼法》第41条规定，起诉的条件之一是：原告是认为具体行政行为侵犯其合法权益的公民、法人或者其他组织。根据这一规定，原告既包括具体行政行为所直接指向的公民、法人或者其他组织，也包括凡是认为其合法权益受具体行政行为影响的公民、法人或者其他组织。同时，如果行政机关以法人身份与另一作为行政主体的行政机关发生争议时也具有原告资格。 (2).乙公司于2002年4月提起行政诉讼已经超过起诉期限。因为乙公司自2001年3月1日起已经知道或应当知道提起行政诉讼的诉权或起诉期限，按照《行政诉讼法》及最高人民法院司法解释的规定，原告的起诉期限为3个月，从知道或者应当知道具体行政行为作出之日起计算，从知道具体行政行为内容之日起最长不超过2年.2001年3月1日，专利复审委员会作出维持该专利有效的审查决定并通知乙公司,已经超过3个月。

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