Switzerland 26 May 2000 Canton Appellate Court Vaud (Asphalt case)
[Cite as: http://cisgw3.law.pace.edu/cases/000526s1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 232/00/JGE
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Switzerland
BUYER'S COUNTRY: Brazil
GOODS INVOLVED: Bitumen (asphalt)
SWITZERLAND: Vaud Cantonal Court
[CA99.000456 (232/00/JGE)] 26 May 2000
Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/149],
CLOUT abstract no. 1404
Reproduced with permission of UNCITRAL
Abstract prepared by Thomas M. Mayer
The dispute concerned a contract between a Swiss seller and a buyer with its headquarters in Brazil for the delivery of 2,000 metric tons of bitumen from Singapore to Mombasa (Kenya). “Cost and Freight” (CFR, Incoterms 1990) delivery was agreed. The seller entrusted the transportation of the goods to an ocean carrier secured via an intermediary. When the ship arrived at Mombasa, a significant portion of the goods had spilled from the transport barrels. In fact, the ship did not have the technical capacity to transport such goods, and furthermore the weather conditions during the crossing were poor. The buyer’s insurer, subrogated to the rights of the buyer, claimed damages in court.
The court decided to apply the CISG (article 1(1)(b)). The choice of law clause in favour of Swiss Federal law contained in the contract did not require the exclusion of the CISG under article 6. The court therefore took into account the fact that, since the defendant’s headquarters were located in Lausanne, there existed a relevant connection with Switzerland. In the absence of indications to the contrary, the court deemed that the reference to Swiss law should be taken to include not only the Swiss Code of Obligations but also the CISG.
The court then considered the question of the extent of the seller’s obligations and the passing of risk. It noted that, under article 31(a) of the CISG, the seller must in principle hand over the goods to the first carrier. As delivery was subject, under the contract, to the Incoterm CFR, the defendant was obliged to arrange transportation and, under article 32(2) of the CISG, to ensure the chartering of a means of transport appropriate for this type of goods. The passing of risk nevertheless occurred at the time of handover of the goods to the first carrier, during which the goods were checked by a neutral body, which certified their quality. The defendant had therefore fulfilled its obligations as seller.
The court denied the liability of the defendant under the second part of article 66 of the CISG (and also implicitly under article 36(2)). It concluded that the defendant had fulfilled its obligations under article 32(2) of the CISG and could not be blamed for the choice of carrier or ship. The loading and securing of cargo was not the responsibility of the defendant. The application was therefore dismissed.Go to Case Table of Contents
APPLICATION OF CISG: [-]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
CITATIONS TO OTHER ABSTRACTS OF DECISION
CITATIONS TO TEXT OF DECISION
Original language (French): CISG-online.ch website <http://globalsaleslaw.com/content/api/cisg/urteile/1840.pdf>
Translation (Summary in German): Swiss Review of International and European Law (SRIEL), 1/2002, p. 146 ff.
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents