En vertu d'un contrat conclu en 2000 et régi par le droit suédois, une société suédoise (le demandeur) s'engagea à vendre à une société française (le défendeur) une certaine quantité de pâte à papier devant être fournie par une société russe, X. La marchandise fut transportée par voie ferroviaire jusqu'au port de chargement puis par bateau jusqu'au port français de destination. Il fut constaté à son arrivée qu'elle était endommagée. Le défendeur refusa de procéder au règlement. Le contrat liant les parties stipulait que la livraison s'effectuerait « CIF La Pallice Incoterms 2000 » et contenait la stipulation suivante en matière d'assurance : « La marchandise est assurée CIF La Pallice et [la société d'assurance] étend sa garantie jusqu'à l'entrepôt situé dans le lieu de destination finale, [sur le site du défendeur] ». Le demandeur affirma que le défendeur était tenu de payer l'intégralité du montant facturé et qu'en cas de dommages la règle CIF des Incoterms imposait à l'acheteur d'adresser une demande d'indemnisation à la société d'assurance et de suivre le dossier directement auprès de cette dernière. Il refusa de reconnaître sa responsabilité, affirmant que le défendeur avait la qualité d'assuré selon la règle CIF des Incoterms. Un différend se fit jour au sujet des documents de transport. L'affréteur avait établi deux connaissements négociables de transport multimodal couvrant l'intégralité du voyage et dont aucun ne portait de réserve quant à l'état de la marchandise. Au port de chargement le transporteur maritime avait établi un connaissement maritime sans réserve couvrant le transport entre le port de chargement et le port de destination. Au même moment le second du navire sur lequel la marchandise était transportée avait établi un « accusé de réception de second » sur lequel il était indiqué qu'une partie de la cargaison était sale ou endommagée.

'44. Under the Contract, [Claimant] had to supply [goods], with CIF La Pallice, Incoterms 2000, August shipment, being the terms of delivery. . . . The Goods were to be insured CIF La Pallice (with insurance cover further up to the final destination warehouse, at . . .).

45. It is uncontested that [forwarding agent] (acting as "représentants des réceptionnaires") confirmed on 5 September 2000 that [ship] had finished discharging [quantity] of the Goods, and that [Claimant], on 7 September 2000, sent original documents covering the above quantity of Goods to [Respondent], that such documents included Negotiable FIATA Multimodal Transport Bills of Lading No. . . . and No. . . . issued by [transporter 1] in St. Petersburg on 10 August 2000, and that-also on 7 September 2000-[forwarding agent] at La Pallice was requested, by letter of which [Respondent] received copy, to release the Goods to [Respondent]. With effect from 7 September 2000 the Goods were, therefore, delivered to [Respondent] in the sense of item A 4 of Incoterms 2000 (providing for delivery of the goods on board the vessel by the seller); thus had been done what is necessary for the buyer to comply with item B 4 of Incoterms 2000 (to accept delivery of the goods and to receive them from the carrier at the named port of destination).

[Respondent] claims that, under Incoterms 2000, [Claimant] had an obligation to provide it with an original of a maritime bill of lading. It is uncontested that the maritime bill of lading, issued by [transporter 2] in St. Petersburg on 26 August 2000, was not sent to [Respondent] with the originals under cover of the letter of 7 September 2000, but was instead presented only at the beginning of the arbitration proceedings.

The bills of lading issued both by [transporter 1] and by [transporter 2] were clean.

46. [Claimant] asserts that the forwarding of the [transporter 1] multimodal bills of lading instead of the subordinated [transporter 2] shipped bills of lading was [Claimant]'s routine way of handling the transport documents, of which [Respondent] as customer of [Claimant] was well aware. This assertion is not contested by [Respondent].

By the explicit remark 'Cargo to be released against presentation of originals of [transporter 1]. B/L No. . . .' in the [transporter 2] maritime bill of lading it is evidenced that the [transporter 1] bills of lading also included the maritime transport and also that the Goods were to be released against presentation of originals not of the [transporter 2] maritime bill of lading, but of the [transporter 1] multimodal bills of lading.

[Claimant] did not raise objections to the [transporter 1] bills of lading upon their transmission on 7 September 2000. According to the documentary evidence presented, it was only two-and-a-half months later, by letter of 27 November 2000, that [Respondent] required the presentation of a maritime bill of lading. This was after lawyers had been involved on both sides.

The Arbitrator concludes that the remark in the bill of lading as quoted reflected the understanding between the Parties at the time when the Goods were put at [Respondent]'s disposal.

47. Under item A 3 of the CIF Incoterms 2000, the seller must also "provide the buyer with the insurance policy or other evidence of insurance cover".

[Claimant's affiliate] gave [Respondent] the details necessary to take up contact with . . . as the agent for the insurer, by its telefax of 7 September 2000. [Insurance agent], contacted by [Respondent] on 20 September 2000, confirmed receipt of [Respondent]'s declaration "pour procéder à une expertise contradictoire" and asking [Respondent] to keep the Goods available for the expert.

46 [sic]. The Arbitrator concludes that this constituted sufficient "evidence of insurance cover". It satisfied the minimum requirements of item A 3 of Incoterms 2000, which stipulates the providing either of the insurance policy or of other evidence of insurance cover.

Obligation of [Respondent] to take over the goods and pay the price?

47 [sic]. Faced with [Claimant]'s assertion that it had supplied the Goods in conformity with the Contract and that, therefore, it was entitled to receive payment at the due date, [Claimant] argues that it did not have an obligation to take delivery of the Goods and to pay their price immediately.

In arguing so, [Respondent] refers to the Mate's Receipt of 26 August 2000 and to the letters from [forwarding agent] to [Respondent] and to [ship broker] of 5 September 2000.

[Respondent] further refers to an alleged usage between the Parties supporting this result.

Accordingly, the contractual remedies available to [Respondent] and the objections raised by [Respondent] in this respect will have to be examined in detail.

48. In the first place, [Respondent] relies on the Mate's Receipt of 26 August 2000, showing St. Petersburg as place of issue. Contrary to the clean bill of lading issued by [transporter 2] in St. Petersburg at the same date, the Mate's Receipt indicates various reservations concerning bales with soiled packing, bales damaged, bales with deformed corner, with soiled contents, without wrapping band and bales with signs of wet damage.

[Respondent] argues that the Mate's Receipt is a counterproof to the clean maritime bill of lading. It asserts that the Mate's Receipt proves the Goods were damaged before they passed the railing of [the ship].

49. [Claimant] rebuts with the argument that the Mate's Receipt is of merely internal significance and that the annotations contained in it are, by nature, unreliable.

50. In support of its argument that a bill of lading carries only a presumption of its correctness, [Respondent] invokes Art. 3, fourth paragraph, of the Brussels Convention on Bills of Lading of 1924, as amended 1979, which states that such a "connaissement vaudra présomption, sauf preuve contraire". [Respondent] also invokes a similar stipulation in Art. 18 of the French Law of 18 June 1966.

51. It is indeed possible to prove that a bill of lading has been incorrectly issued when it states that the goods have come clean on board. However, in the present case the Mate's Receipt does not provide that proof.

52. Annotations in a Mate's Receipt rely on optical impressions gained superficially at the moment when the Goods pass the railing, up in the air, being moved with time pressing, before they disappear in the storage rooms of the ship. Certainly in the case to be decided, the Mate's Receipt does not state facts, but rather generic assumptions, as can be seen from the final result of the sorting.

In addition, the ship's mate (in the present case the Captain of the vessel) has an obvious interest to estimate damages "on the high side", so as to limit the shipowner's responsibility during the rest of the transit.

This makes the Mate's Receipt not sufficiently reliable to act as counterproof against a clean bill of lading.

53. This conclusion is borne out by the Expertise conducted by Monsieur . . ., with the active participation of [Respondent], the result of which-expressly accepted by [Respondent]-corresponds to [Respondent]'s own conclusions. The Expertise of 6 March 2003 states that [quantities of goods] were refused for various reasons.

This means that, in the end, only some 2.4% of the units were refused (for reasons which only partly coincide with the details noted in the Mate's Receipt), whereas these annotations in the Mate's Receipt cover more than 64% (i.e. almost two thirds) of the [goods].

54. The Arbitrator concludes that the Mate's Receipt in the present case does not constitute counterproof against the confirmation in the bills of lading that the Goods came clean on board.

55. Similar considerations apply to the deficiencies reported by [forwarding agent] in its letters of 5 September 2000.

In any case, the report by [forwarding agent] cannot serve as counterproof to the clean maritime bill of lading, since it was made only after arrival of [ship] in the port of destination, saying nothing about the state of the Goods at the moment they passed the railing of [the ship].

. . . . . . . . .

Obligation for [Respondent] to take delivery?

71. According to [Claimant], [Respondent] was under an obligation to take delivery of the Goods following their arrival in La Pallice.

This is supported by the provision "[goods] must be picked-up within freetime allotted by shipping company", as contained in the Special Conditions of the Standard Contract for [the goods]. It is confirmed by S. 5 (e) [general trade rules] which states: "The buyer shall promptly unload and properly store and cover by insurance any shipment made to the buyer pending a decision of the dispute".

It is also confirmed by item B 4 of the conditions CIF Incoterms 2000.

72. The Arbitrator concludes that [Respondent] was under an obligation to accept the Goods once it was in possession of the bills of lading upon arrival in La Pallice.

It was then open to [Respondent] to take the steps provided for in the Contract, in particular in Sections 5 and 7 [general trade rules].

Obligation for [Claimant] to take part in the sorting of the goods?

73. However, [Respondent] asserts that the Parties were bound by a usage which had been established between them.

Monsieur . . ., Directeur Achats of [Respondent], in his written witness statement of 19 September 2003, states that the practice was as follows:

Lorsqu'une avarie ou un problème était constaté à l'arrivée du navire, la pratique entre [le défendeur] et [le demandeur], conformément d'ailleurs aux usages de la profession, voulait que les parties déterminent d'un commun accord la part de [la marchandise] saine pouvant être utilisée par [le défendeur] et la part de [la marchandise] devant être reprise par [le demandeur]. [Le défendeur] prenait aussi possession de la quotité saine et en réglait le prix après que [le demandeur] lui ait adressé une facture régularisée en comptabilité au moyen d'une note de crédit émise par [le demandeur]. C'est de cette façon que se sont traités les problèmes rencontrés lors de certaines ventes précédentes.

In its Dossier de Plaidoiries, [Respondent] formulates the alleged usage in the following fashion:

Cette pratique était qu'en cas de difficulté, les parties procèdent à un tri contradictoire des marchandises, à l'issue duquel elles parvenaient éventuellement à un accord.

Selon les termes de cet accord, [le demandeur] émettait éventuellement une note de crédit, et [le défendeur] payait la facture déduite de cette note de crédit.

[Respondent] argues that, on the basis of the said usage, [Claimant] had an obligation to participate in any sorting (tri contradictoire).

74. In this context, [Respondent] refers to 5 prior sales made by [Claimant] to [Respondent] in the years 1995/1996 and 2000. [Respondent] relies on three of these sales-all in 1995/1996-to argue that the usage alleged above has become binding in the relationship between [Claimant] and [Respondent].

[Claimant] points out that in two of these cases the solutions adopted were based on decisions of the supplier of the goods . . . [Respondent] does not contest this but declares it irrelevant, since the Contract was with [Claimant] and not with [the supplier of the goods].

75. In examining the details, the Arbitrator finds that it was clear also to [Respondent] that the decisions in at least one case had not been taken by [Claimant], but instead by [the supplier of the goods].

. . . . . . . . .

76. The result is that, as a maximum, there remain two cases in the period 1995/1996 where it was [Claimant]'s own decision (or at least appeared to [Respondent] to have been [Claimant]'s own decision) to act as described above and which would allegedly have led to the formation of a usage binding the two Parties in their future contractual relationship (which were [sic] resumed only in the year 2000).

Two cases (or, for that matter, even three) are not enough to form a usage between two parties which, at the resumption of contractual relations after four years, is still binding upon them.

Even if there should be a general usage in the trade to the effect described, this could not prevail in a situation where the Parties have expressly provided the mechanism for settling their disputes in the matter, as is the case of Sections 5 and 7 [general trade rules], in particular.

As a consequence, the Arbitrator concludes that [Claimant] was not legally bound to participate in the sorting of the Goods or to pay for it.

Faced with a claim by [Respondent] of damages having occurred during the shipment, at a time when the Goods were still at [Claimant]'s risk, [Claimant] complied with its contractual obligations by ensuring that [Respondent] could take up the case with the insurer which had underwritten the risk, in accordance with CIF Incoterms 2000.

77. Since [Claimant] was under no obligation to participate in a sorting of the Goods, [Respondent] was not justified in retaining the payment for the Goods which, as has been stated, was due with effect from 11 October 2000.'