En 1991, un fabricant allemand (le défendeur) souscrivit un contrat de fourniture de moteurs au ministère de la défense d'un Etat eurasien. Ce contrat, régi par le droit suisse, prévoyait une livraison FOB et contenait des stipulations spécifiques applicables en matière d'emballage et de transport. Le matériel fut endommagé au cours du transport par bateau. Un litige naquit au sujet du caractère inadéquat de l'emballage et de la responsabilité qui en résultait pour le fabricant. Le ministère de la défense céda ses droits à son assureur qui, en tant que demandeur, engagea une procédure d'arbitrage afin de récupérer le montant des indemnités qu'il avait versées en raison de la violation du contrat reprochée au défendeur.

'The contract of March 25, 1991 between [defence ministry] and Defendant . . . imposed the obligation on Defendant to organise the packaging and transportation of the engines under his sole responsibility and liability. Consequently, Swiss Law pertaining to cargo contracts is applicable. The relevant legal provisions are OR 441 and Schiffahrtsgesetz vom 23.9.1953 Artikel 101 - 117, SR 747.30.

OR 441 and OR 442, 1 impose on the consignor the duty to scrutinise

1. the quality of the transportation means

2. its suitability for the transport of this special cargo (SJZ 1951, 345)

3. the packaging of the cargo in the appropriate form and secure way.

The contract between [defence ministry] and Defendant (. . . "the Contract") contained a very specific clause pertaining to the packaging and the transportation of the engines. Defendant had to deliver the supplies as per INCOTERMS 1990 in original packing as far as feasible. It has been agreed between Parties that all supplies should be packed according to customary practises for overseas shipment. In this regard special relevance to the duties of Seller derives from the expression "customary practises". Customary practises for overseas shipment has a different meaning than "Standard Packaging". Defendant itself quotes decisions of the German Bundesgerichtshof (Federal Court of Germany) where customary packaging is defined as "those standards set generally in the shipping business at the place and at the time of the shipment . . ." but does not point to the fact that these standards, even if generally obeyed, have to take the factual circumstances of the shipment such as the actual part of the year or the destination into account.

"Customary practises" means that Seller is obliged to choose a packaging that is fit and appropriate for the selected kind of voyage. In this regard it has to be stressed that Defendant knew in advance the circumstances relating to the transport as for example the modalities and the destination before the contract of sale was concluded. A journey during winter time through the Gulf of Biscaya necessitates another packaging than other journeys. The standard packaging does not fulfil the special requirements of "customary practises".

Point 5 of the Contract does not mention any inspection methods with regard to the packaging which should have been performed according to customary practises for overseas shipment.

In Point 7/7.1 GPS BWB (Güteprüfstelle Deutsches Bundesamt für Wehrtechnik und Beschaffung) or respective military authorities are named as entities to perform the FAT the "Factory Acceptance Test" and GPS BWB or other respective military authorities which may be specialised to scrutinise such materials in accordance with FAT or even a standard packaging of such materials. If the Parties had intended to call in these authorities to check/approve/disapprove the packaging, Point 5 as special section dealing with the transportation and the packaging would have mentioned them either and expressly. It is true that the packaging is one part of the normal inspection procedures of GPS BWB but this national authority is no specialist in the area of overseas shipment.

Point 5/5.1 of the Contract provides that all measures to be taken for safe and sound shipment shall be equal to those which have been applied for overseas shipments by Seller for material to be shipped.

The parties did not intend to enable Seller to perform the delivery at a low safety level with reference to usual carelessness by fulfilling tasks that are part of the Sellers own affairs. Just to the opposite Seller should take as much care as if his own affairs were concerned.

Under Point 5.5 it has been agreed between the parties that Seller will contact the agents or offices of the companies concerned with the transportation one month prior to the planned shipment date and furnish all necessary information required for the transportation such as weight, type, volume, etc. of the goods to be shipped.

Point 4 of the Contract concerns warranty aspects and rules in Point 4.5 that the warranty ceases to apply to any item which has been involved in an accident after the FOB delivery excluding faulty packaging. Point 5.5 as well as this rule shows that it was the intention of the parties to oblige Seller to ensure a safe transportation by taking the appropriate protective measures against damage.

With regard to FOB in the INCOTERMS 1990 it is the general view that the passing of risk for loss or for damage to the goods with passing the ship's rail at the named port of shipment concerns the risk of fortuitous events only. That means that accidents are included and loss or damage caused by Seller or Buyer, for example by inadequate packing or marking of the goods are excluded. This view matches with the intention of the parties that Defendant should be liable for packaging during the entire voyage (see for example Point 4.5 of the Contract).

According to Point A9 FOB, the Seller who knows the kind and relevant circumstances of the intended transportation has to provide a packaging that is fit for this kind of carriage. This is different to for example Point A9 of FCA where Seller may choose a standard packaging if he does not know the special requirements connected with the transportation. If Seller is not specialised in this regard it has to search for specialist advice. GPS BWB was no specialist for customary packaging for shipment.

Point 7 of the Contract quotes: "Inspection methods and places, quality assurance" and rules that FAT (the "Factory Acceptance Test") which mainly concerns the inspection of the material, shall be performed at Seller's or his subcontractor's premises. If these premises are located in Germany or other NATO-countries, FAT should be made by GPS BWB or respective military authorities in accordance with STANAG 4107.

Although the buyer had to make the necessary applications, GPS BWB or other respective military authorities are not to be seen as some kind of assistant to Claimant. This is shown by the provisions that [an officer of the purchasing State] may be present during these tests as an observer, respectively that buyer may assign experts to an inspection team to be nominated by him. If GPS BWB would be requested to work for Claimant such provisions bear no essence or merits.

As mentioned above, Point 7.1.2 makes clear that the material itself is scrutinised. Mr. . . . states: "Inspection of the packaging also forms part of the actual quality inspection. However, this only constitutes part of the actual quality inspections."

As shown by the expert's report, Mr. . . ., who is employed as a technical government executive officer at the Quality Control Office of the German Armed Forces, found the cases in good order. These cases are only one part of the packaging. A proper packaging consists of more aspects than the cases into which the materials have to be placed. A further analysis of NATO-standards shows that they give only a general approach for packaging and mainly references are made to the contractual agreements about the packaging. General instructions are given concerning the quality control, description, information and the approval of the type of packaging but no detailed instructions as to the securing and/or fastening of the contents inside the packaging. The same applies with regard to the rules of the Arbeitsweisung des Bundesamtes für Wehrtechnik und Beschaffung zur Gütesicherung und Güteprüfung von Wehrmaterial like the MTU-instructions.

An analysis of the Arbeitsweisung des GPS BWB zur Gütesicherung und Güteprüfung von Wehrmaterial (AW/BWW-GSP) [Quality Control Office of the German Armed Forces] as enacted on August 19, 1997 . . . shows the following:

GPS BWB (Quality Control Office) takes over tasks which have to be fulfilled by the consignee. In this respect it is GPS BWB'[s] main function to decide quality matters. These are especially the release, the raising of objections and the rejection of work done by the contractor, the examination whether the work done by the consignee is in accordance with its contractual obligations. In addition, GPS BWB should warn in advance if problems may endanger the intended project and support the project management and so on. Prerequisite for GPS BWB's work is a contract naming GPS BWB to undertake the control. In the instant case the provision about this quality control is contained in Point 7.1.1 of the Contract.

The functions of GPS BWB mentioned above show that GPS BWB mainly supports the contractor who relies on the controls of GPS BWB and therefore does not for example take further steps to increase the safety of the packaging. In this respect GPS BWB functions as an assistant to Defendant insofar as preventive measures to enable a warning in advance to the occurrence of problems or quality controls are done by GPS BWB and otherwise these measures should have been taken by Defendant. GPS BWB is not specialised to scrutinise packaging with regard to customary packaging.'

<u>Opinion dissidente</u>

'The second issue (contractual obligation to perform packing) is in a particular way interrelated with the first one.

I refer to the wording of para. 5.1 of the contract. Packing as per FOB clause A/9 refers to transport-worthy packing. The contract in para. 5.1 also refers to customary practices for overseas shipment. Finally it refers to the measures applied by the seller for his own overseas shipments. I fail to see in what respect this paragraph can be interpreted as requiring a particularly high packing standard, respectively as requiring a particularly special care to be applied to the packing.

The basic rule seems to be the INCOTERMS 1990 FOB Clause A/9. Its subsection 2 reads as follows: "The seller must provide at his own expense packaging (unless it is usual for the particular trade to ship the goods of the contract description unpacked) which is required for the transport of the goods, to the extent that the circumstances relating to the transport (e.g. modalities, destination) are known to the seller before the contract of sale is concluded. Packaging is to be marked appropriately."

Neither party seems to have made substantiated allegations as to whether or not particular circumstances relating to this part-shipment amongst several others (see B/L) were made known to the seller in time.

I doubt whether in the light of clause FOB A/9 the term "customary practices" adds anything relevant to the required quality of packing, at least not in so far as it refers to the distinction of overseas shipments on the one hand and airfreight shipments on the other hand. Also-particularly in a FOB sale-the risks entailed by the employment of a small vessel which is qualified by the expert . . . as in addendum to report no. . . . falls on the buyer, i.e. the claimant. In addition the stowing and securing of the cargo in the holds of the vessel as supplied by the buyer is not a duty of the seller, but of the vessel, which fact seems to escape the attention of the expert . . .

It is uncontested that the parties agreed in particular on that the packaging needed to be inspected and approved by BWB or respective military authorities in accordance with NATO regulations STANAG 4107. Art. 7.1 of the agreement specifies such acceptance method, refers to the BWB, respectively the respective authorities for inspection and again refers to clearance according to STANAG 4107. Reference is made to defendant's motion of October 1, 1997, page 10 which is not specifically denied. The STANAG 4107 have neither been submitted nor commented by the parties and are not part of the admitted evidence.

Also, [an officer of the purchasing State] located at the premises of sellers was allowed to participate . . .

From the testimony of . . . it is known that the inspection was continuously made during the course of packing and that the packing was in conformity with STANAG and standard seaworthy export packaging of similar or equal machines generally applied by defendants, which is not denied.

Sellers contractually were to make a packing which should be able to be approved/cleared by BWB in accordance with STANAG 4107, the jointly accepted NATO standards. Exactly such a packing was made and performed. The packing was approved and cleared by BWB, a mutually agreed third party expert, a military authority working on the basis of NATO standards. Upon receiving the approval and the clearance sellers had fulfilled their contractual duties in respect of packing. What sellers had to do, was to provide a customary packing for overseas shipment, applying those measures the seller himself applied for his shipments; that packing needed to be cleared by BWB in application of STANAG 4107. It is correct that in principle in a FOB sale sellers responsibility for the quality of the packing does not end upon transfer of the risk. This continuing responsibility does however not mean that any failure of the packing to resist the perils of the voyage necessarily is the consequence of an act of sellers amounting to gross negligence.

The agreement and the undisputed allegations do show that BWB was a third party, a kind of mutually agreed quality controller, upon whose approval and clearance both parties would and were entitled to rely.

I do not see that the function of BWB can be construed as being an assistant or auxiliary person according to Code of Obligations Art. 101. BWB acted for both parties, only on application of sellers, as stipulated in the contract para. 7.1.

[Respondent] owed an overseas shipment packing equivalent to that applied by the seller for his overseas shipments. The packing should be finally controlled, approved and cleared by the jointly selected and agreed expert supervisor, an entity of the German military forces. BWB was not helping to pack physically and was not under the orders of either party.

This jointly agreed expert approved and cleared the packing, whereby it became fully contractual. From exhibit D1 we learn that a forwarder named [F] was involved for delivery to FOB German port. Packing is mentioned as seaworthy on D1, plus the document D1 carries the clearance stamp of the expert BWB.

[F] transported the goods over land to FOB German port obviously without any reserves as to the packing. The bills of lading upon loading were not claused.

Under these circumstances and in the absence of specific allegations of claimants, I fail to see in what respect the FOB seller's behaviour can be qualified as gross negligence.

In addition defendant has expressly pleaded that on his side there was no wilful misconduct. . . . Plaintiff has never contested this nor has he made any kind of substantiated allegations relating to the degree of negligence committed by sellers. I feel it to be difficult to base my decision on facts which are denied by one party and which are even not contested nor otherwise alleged by the other party. The mere fact of a packing not resisting the perils of the voyage, respectively proving to be insufficient during or after the voyage does not constitute gross negligence in itself.

In recovery actions according to Swiss law the party against which the marine insurer is taking recovery is only liable to the extent or in proportion of its own portion of negligence. In this respect the expert . . . states that the vessel selected and contracted by buyers was a coastal vessel only . . . and rather small for a winter journey. The expert would have selected a better vessel. Also the expert would have recommended to follow particular rules in stowing and securing the cargo on board.

In addition the cargo was several times in several ports moved and restowed, which as I see it is not contested. Those conditions (kind of vessel, shifting and restowing of cargo several times) of the transport were not necessarily customary nor usual.

In a FOB sale where the quality of packing is the issue this may even amount to contributory negligence of parties other than the seller and have a bearing on the evaluation of degree and portion of seller's negligence if at all.

To the extent of contributory negligence for instance of the carrier or those appointed for the stowing, seller's liability would need to be reduced. As to this no pertinent allegations were made nor was evidence taken.

The original insurance contract provided no insurance cover for damages resulting from insufficiency or unsuitability of packing (ICC A Clause 4.1).

It is doubtful whether the payment made by the claimant (the marine insurer) and its acceptance by the assured post festum amount to a contractual alteration of the insurance contract and therefore to an extension of the cover. In any event such alteration after the event could not be lawfully used against the defendant. Also such alteration combined with the assignment of rights in favour of the plaintiff would alter the system provided by article 51 Swiss Code of Obligations in a way not tolerated by Swiss material law. The payment made by the claimant must rather be regarded as a voluntary ex gratia payment not justified by the original insurance contract which does not lead to a damage recoverable by the claimant from the defendant.

Concluding I think that in the absence of any specified factual allegations and evidence as to quality and portion of fault, respectively negligence it is difficult to conceive that the making of a BWB approved packing meeting NATO standards as provided in the contract can be qualified as an act of gross negligence. The defendant has delivered a contractually correct packing. The mere fact alone that the packing did not resist all perils of the voyage does not allow the automatic conclusion that the defendant violated the contract nor that there is gross negligence on his part. If at all the claimant could due to gross negligence in principle take recovery from the defendant, defendant's liability needed to be assessed in proportion to its own fault only.

Also the voluntary ex gratia payment made by claimants in contradiction to the exclusion in the original insurance policy and the assignment connected therewith do not entitle claimants to recover from defendants.'