En 2000, les parties, toutes deux européennes, conclurent un contrat de fourniture de gazole régi par le droit belge. Ce contrat ne prévoyait pas expressément une livraison par bateau. A la demande du vendeur (le demandeur), l'acheteur (le défendeur) autorisa le transport par péniches. Les parties ne parvinrent pas à s'accorder sur le point de savoir si le prix du gazole fourni par ce moyen devait être calculé sur la base des quantités mesurées avant le déchargement ou après, les premières excédant les secondes de quelque 92 000 m³.

'26. As the Contract stipulates an international sale of goods and as Belgian law is declared applicable and as the Parties have not stated that only Belgian domestic law is applicable to the Contract Belgian law also encompasses the United Nations' Convention on Contracts for the International Sale of Goods ("CISG") since Belgium is a signatory state to the CISG. However, none of the provisions of the CISG, including Article 56 ("If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight"), addresses directly the determining issues of the case at hand.

27. According to Article 3(2) of the Contract "the products are to be delivered . . . on a DDU basis". This term means "that seller delivers the goods to the buyer, not cleared for import, and not unloaded from any arriving means of transport at the named place of transportation" (Incoterms 2000 [ICC Publication No. 560], p. 113). Seller bears the risks of loss or damage until the goods have been delivered accordingly (Provision A4 of DDU).

28. Claimant argues that the Parties have agreed by stipulating DDU as applicable that the relevant quantity for determining the price of the product is the pre-discharge quantity . . .

29. Respondent argues that under DDU the pipelines leading to the tanks are the relevant means of transport . . ., that the destination place has been determined in Article 1 of the Contract as "at the [oil refinery] tanks of [city]" . . ., that according to Article 3(5) of the Contract the "Final Acceptance Certificate" serve as basis for payment . . . and that agreement was reached on January 11, 2001 "that quantities actually unloaded reported to on the acceptance certificates will be used as a base for Payment" . . .

30. By incorporating DDU (or DES as also argued by Claimant . . .) in the Contract the Parties did not determine the point in time when and the method by which the quantity (and therefore the price) of the delivered diesel should be fixed as none of the DDU provisions addresses these questions: Provision B1 explicitly states that the "buyer must pay the price as provided in the contract of sale". Generally speaking, Incoterms "are only rules for the interpretation of terms of delivery and not of other terms of the contract of sale" (ICC Guide to Incoterms 2000, p. 11).

31. The issues identified above have to be resolved by way of interpretation of the Contract.

32. The starting point for an analysis of the Contract is Article 3(5) which reads as follows: "The quantities received at each final destination are to be recorded and verified on the Final Acceptance Certificate to be completed and signed by the authorised Authorities and countersigned by the Monitoring Agencies". According to Article 4(2b) of the Contract the documentation necessary for payment of the remainder of the contract price includes "Final Acceptance Certificate(s)". According to Article 13 of the General Conditions "Final acceptance shall be pronounced . . . on the condition that the goods are . . . in compliance with the contract specifications. A certificate of final acceptance shall be drawn up entitling the Supplier to the relevant payments".

33. It is correct as pointed out by Claimant . . . that the (minutes of) the meeting of January 11, 2001 did only address deliveries by trucks, however, it is reasonable to apply-as argued by Respondent . . .-the broad statement "that the quantities actually unloaded and reported on the acceptance certificates will be used as a base for payment" . . . also to other means of transportation . . .

34. Claimant's position that the Final Acceptance Certificate is not relevant for determining the price under the Contract has no basis in the Contract and has been at least implicitly rejected in the meeting of January 11, 2001. On the basis of the evidence produced by the Parties the correct interpretation of the Contract is that the basis for determining the price are [sic] the quantities actually received (and therefore unloaded) as recorded in the Final Acceptance Certificate.

35. Claimant argues that the issued "Acceptance Certificates . . . were not in accordance with the draft Acceptance Certificate attached to the Contract in that no details are required to be recorded for 'Shipped Volume'" . . . This argument is not relevant for deciding the case at hand as there is no dispute about both the outturn (or received) and the pre-discharge (or shipped) quantities. It may also be pointed out that the draft certificate . . . does not contemplate transport by ship.

36. Respondent argues in the alternative that it is a fact that measurements of quantity in vessel tanks are inaccurate and that Claimant's obligation would have been to furnish the so-called Vessel Experience Factor (VEF) for all fifteen barges involved. This is supposed to be a historical compilation of ship-to-shore cargo volume variations . . . As Respondent's position has already prevailed on the basis of the arguments set forth above there is no need to examine the validity of this line of reasoning and of the counter arguments advanced in this respect in Claimant's Rejoinder . . .

37. DDU (Provision B5) would only be relevant if after the transfer of risk to the Respondent but before the determination of quantity in accordance with the Contract a loss of goods would have occurred (The mere fact of differences between pre-discharge and outturn quantities is not sufficient proof for such a loss as both Parties agree that discrepancies between these two quantities occur regularly . . . However, Claimant does not allege and does not prove as it would have to (cf. Schlechtriem/Hager, Artikel 67 CISG Rn. 11) that such a loss occurred).

38. The above considerations have shown that Claimant's claim . . . is unfounded.'