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CISG CASE PRESENTATION

Spain 15 February 2003 Appellate Court Valencia (Ceramicas S.L. v. Hanjin Shipping Co. Ltd) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/030215s4.html]

Primary source(s) of information for case presentation: CISG-Spain and Latin America website

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Case identification

DATE OF DECISION: 20030215 (15 February 2003)

JURISDICTION: Spain

TRIBUNAL: Audiencia Provincial de Valencia, Sección 6

JUDGE(S): Doña Purificación Martorell Zulueta

CASE NUMBER/DOCKET NUMBER: 739/2002

CASE NAME: Cerámicas S.L. v. Hanjin Shipping Co. Ltd

CASE HISTORY: 1st instance Juzgado de Primera Instancia No. 21 de Valencia 27 May 2002

SELLER'S COUNTRY: China

BUYER'S COUNTRY: Spain (plaintiff)

GOODS INVOLVED: 82,000 cajas de vela


Case abstract

SPAIN: Audiencia Provincial de Valencia 15 February 2003

Case law on UNCITRAL texts (CLOUT) abstract no. 552

Reproduced with permission of UNCITRAL

Abstract prepared by María del Pilar Perales Viscasillas, National Correspondent

The dispute involved not the buyer and seller under the international sales contracts, but the Spanish buyer (consignee) and the carrier. The goods were destroyed as a result of a fire on board the vessel on which they were being transported. The buyer sought damages and to be declared the owner of the goods, which was considered moot by the lower court judge. The appeal court held that the buyer bore the risks of transport from the time at which the goods were loaded on to the vessel. Citing article 66 CISG, it accordingly ruled that the buyer was the injured party and its claim justified.

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Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 66 ; 67

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Passage of risk

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Spanish: CISG-Spain and Latin America website <http://www.uc3m.es/cisg/respan32.htm>

CITATIONS TO TEXT OF DECISION

Original language (Spanish): CISG-Spain and Latin America website <http://www.uc3m.es/cisg/sespan32.htm>; JUR 2003\141411

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

The CISG Translation Network

Valencia Appellate Court 15 February 2003
Cerámicas S.L. v. Hanjin Shipping Co. Ltd

Translation by Lucia Martin

Translation [*] edited by Pilar Perales Viscasillas

The parties entered into a sale of goods contract, in which the Spanish [Buyer] would acquire 82.200 boxes of candles from the Chinese [Seller], who would in return receive the corresponding price for selling them. The goods were to be transported from Shanghai to Valencia by a Chinese freight according to a transport contract between the Chinese [Seller] and the Chinese freight.

When the goods were on their way from Shanghai to Singapore, a fire occurred in the warehouses of the carrying vessel, causing all of the boxes of candles to be damaged. The vessel’s fire detection system, fire alarm and fire extinguisher systems all failed to function, but the independent experts where not allowed to inspect the vessel to determine the exact causes of the fire.

Two months after the fire occurred, the carrier informed the [Buyer] about the incident. Inside the transporting vessel, there were two other containers, which were also the property of the Spanish [Buyer], adding to the total loss of goods. The [Buyer]'s clients had already pre-ordered the boxes of candles that were damaged in the fire, which meant that these orders had to be annulled, causing the [Buyer] significant losses of profit. The Spanish [Buyer] filed a lawsuit to the Spanish First Instance Court against the Chinese freight claiming that it is responsible to pay the amount corresponding to these losses and damages. The court denied all claims submitted by the [Buyer], based on Art. 217.2 of the Spanish Civil Procedure Code, alleging doubts regarding the [Buyer]’s ownership of the damaged goods, and considering that even though the freight was responsible for the loss of the boxes of candles, there is insufficient proof of the facts of the case given by the [Buyer], as well as stating that the claim against the freighter could not succeed because of its lack of passive procedural standing. This ruling was appealed by the [Buyer], basing its claim on the infringement of article 67 of the Vienna Convention of 1967, as the INCOTERMS established in the transport contract.

The Spanish Appellate Court responded by saying the following: The sales of goods contract which was signed between the [Seller] and the [Buyer] contained INCOTERMS that defined which of the parties was to hold the risk in case the goods were either lost or damaged. Risk in this case belonged, and was assumed in the appeal to belong, to the [Buyer] from the moment the goods were stowed in the transporting vessel. However,, the fact that the contracting parties decided to allocate the risk in this way is different from the fact that the [Buyer] is entitled to address its claim against the freighter, because in this court’s opinion, there is sufficient proof for it to have passive procedural standing.

Furthermore, because the [Buyer] assumes the risk allocation of goods, it is he who is in this case the injured party (and not the [Seller]), thus, once the goods have been lost and the risk has already passed to the [Buyer], it is free from its obligation to pay the [Seller] [Art. 66 in fine CISG].

In conclusion, the Appellate says:

  1. It has been accredited after a new evaluation of the assessed proof, that the fire was the reason and cause for the loss of the goods.

  2. The average amount damaged of the goods as well as the financial expenses incurred for by the [Buyer],

  3. And the fact that the [Buyer] could not attend to the client’s pre-orders because of the loss of the goods, resulted in consequential losses of profit

  4. As well as the fact that the [Buyer] mitigated the damages by paying a sum in concept of transport for the other two containers also carried in the vessel

Ruling in favour of the appealing [Buyer] according to Art. 217 of the Spanish Procedural Code, and condemning the freighter to reimburse the [Buyer] for all the expenses and amounts incurred.


FOOTNOTES

* All translations should be verified by cross-checking against the original text.

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Pace Law School Institute of International Commercial Law - Last updated March 17, 2014
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