En 2000, une société indienne (le défendeur) se vit attribuer un contrat de vente et de fourniture de matériel de construction à une société du Bangladesh (le demandeur). Ce contrat était régi par le droit du Bangladesh. L'acheteur refusa de payer une partie de la marchandise au motif qu'elle s'était révélée inutilisable à son arrivée. Le vendeur nia être responsable de l'état de la marchandise et invita l'acheteur à demander à son assureur de l'indemniser des dommages subis durant le voyage en mer. L'acheteur engagea une procédure d'arbitrage afin d'obtenir le remboursement des sommes déjà versées, ainsi que des dommages-intérêts. Le vendeur demanda de son côté le paiement des marchandises livrées ainsi que des dommages-intérêts.

'59. It is true that, in the nature of things, even with all the precautions the Respondent claims to have taken, things could have gone wrong at any point between procurement of raw materials and loading of the finished products onto the vessel. It is because of this that Clause 12.1 of the SCC [Special Conditions of Contract] provides against "damage incidental to [delivery] as well as to manufacture or acquisition [and], transportation"(italics added). If no precautions had been taken, things could have turned out much worse. It is submitted by the Tribunal that the balance of probabilities point, not only to the Respondent's failure to secure the goods with contractually-prescribed on-board packing for what had been foreseen in the Contracts to be a perilous sea voyage, but also to defects attributable to the manufacturing process and the acquisition of raw materials. . . .

60. The foregoing reasoning, anchored particularly in an assessment of the balance of probabilities as well in logic as it is, is reinforced by contractual provisions making liability for damage to [the goods] falling on the Respondent's shoulders. First, Clause 12.1 of the SCC, part of which was cited in the preceding paragraph, in providing "All Goods supplied under the Contract shall be fully insured in a freely convertible currency against loss or damage incidental to manufacture or acquisition, transportation, storage and delivery" (italics added) imposes on the Respondent the obligation to assume liability for risks of loss of goods as well as of damage to them from the stage of acquisition up to the point of delivery. This all-embracing clause in the context of a sale-of-goods contract, imposes liability on the seller for damage or loss suffered by his goods at all stages, without fault on his part having to be proved. While this may seem unduly harsh, the reliance interest of the buyer in such contracts needs legal protection and, in turn, the seller is contractually bound to seek insurance cover to protect himself. Indeed, the case against the Respondent as the supplier can rest on provisions of this clause alone. Moreover, Clause 7.4 of the GCC [General Conditions of Contract] . . . reads "The Purchaser's right to inspect, test and, where necessary, reject the Goods after the Goods' arrival in the Purchaser's country shall in no way be limited or waived by reason of the Goods' having previously been inspected, tested and passed by the Purchaser or its representatives prior to the Goods' shipment from the country of origin" (italics added). The learned counsel for the Respondent is quick to point out that the Claimant has, by filing two money suits . . ., admitted the [goods] were in working order prior to their shipment; but, with respect, filing the said suits is perfectly compatible with the claim that the [goods] had manufacturing defects. Again, it is contended that the Claimant has not conducted any scientific tests on the [goods] before rejecting them; but the learned counsel for the Claimant is right to counter that contractual provisions do not prescribe the exact nature of the tests. The Tribunal is in agreement that the only foolproof test lies, as in the proof of the proverbial pudding, in trying and using the [goods where intended]. The Tribunal is also satisfied that the Respondent does not dispute the fact that all the delivered [goods] were defective, this being confirmed, as has been pointed out in paragraph 56 supra, by its letter of 28 December 2001. If more justification for making the Respondent assume liability for defective [goods] is needed, then the provisions of Clause 7.4 of the GCC is no less decisive, since the Claimant was within his rights in finding it necessary to reject the goods after their arrival in Bangladesh. Finally, while either Clause 12.1 of the SCC or Clause 7.4 of the GCC already discussed in this paragraph is a sufficiently robust ground for resting the case against the Respondent, the warranty clause of the GCC serves to clinch it further. Thus, as the counsel for the Claimant is at pains to argue, Clause 13.1 of the GCC provides "The Supplier warrants to the Purchaser that the Goods supplied under the Contract will comply strictly with the Contract, shall be first class in every particular case and shall be free from defects. The supplier further warrants to the Purchaser that all materials, equipment and supplies furnished by the Supplier or its subcontractors for the purpose of the Goods will be new, merchantable and of the most suitable grade, and fit for their intended purposes" (italics added). Again, Clause 13.2 of the GCC stipulates "The contractor represents and warrants that the Goods and Services are designed to be used prior to, during, and after the calendar year 2000 AD (Year 2000); neither the performance or the functionality of the Goods and Services shall be affected by dates prior to, during and after Year 2000; and the Goods and Services and any logic included therein, will operate during each such time period without error relating to the date data, specifically including any error relating to, o[r] the production of, date data which represents or references different centuries or more than one century and the correct treatment of the Year 2000 as a leap year". Finally, Clause 13.3 of the GCC reads "The Warranty shall remain valid for twelve (12) months after the Goods, or any portion thereof, as the case may be, have been delivered and commissioned or for eighteen (18) months after the date of shipment from the port of loading in the country of origin, whichever period concludes earlier; unless specified otherwise in the Special Conditions of Contract". These warranty clauses are supported by their operative counterparts in the GCC which run "The Purchaser shall promptly notify the Supplier in writing of any claim arising under this Warranty"(13.4), "Upon receipt of such notice, the Supplier shall promptly repair or replace the defective Goods or part thereof, without cost to the Purchaser other than, where applicable, the cost of inland delivery of the repaired or replaced Goods or parts from the port of entry to the final destination"(13.5), "Without prejudice to Clause 13.2 and 13.4 above, the Supplier shall promptly correct, at no cost to the Purchaser, any defect in any work of correction performed pursuant to Clauses 13.2 and 13.4 above, upon receipt of written notice of defect within twelve (12) months from acceptance of the corrected defect"(13.6) and "If the Supplier, having been notified, fails to remedy the defect(s) in accordance with the Contract, the Purchaser may proceed to take such remedial action as may be necessary at the Supplier's expense. The Supplier's Warranty pursuant to this Clause 13 is without prejudice to any other rights or remedies which the Purchaser may have against the Supplier under the Contract" (13.7). Of course, the foregoing Warranty Clauses of the GCC and the Guarantee Clause 8.1 of the Section IV, Technical Specifications of the Contracts, dealt with in paragraph 52 supra are mutually reinforcing, and, for this reason, the provisions of the said Guarantee Clause merit repetition in full. It reads "The [goods] shall be guaranteed by the Supplier for sound manufacture for a period of 24 months from the date of its service . . . If during the guarantee period any [goods] are found to develop defects attributable to bad material and workmanship requiring withdrawal from service, the cost of replacement shall be borne by the supplier. The defective [goods] withdrawn from service shall be handed over at site to the supplier for their disposal. The supplier shall make good the cost after replacement, within 30 days of advice of defects, during which period the supplier shall be given permission to inspect the [goods], make his observations and carry out check/examination jointly with the purchaser's representative."

61. The thrust of the Respondent's argument that the Contracts at issue are c.i.f. ones is to opt out of all the supplier's obligations spelt out in the preceding paragraph. For its part, the Claimant refers to the Respondent's obligation to take out insurance to cover the transport of goods under c.i.f. contracts. In this connexion, the Tribunal duly notes that Clause 9.2 of the GCC provides "For purposes of the Contract, 'EXW', 'FOB', 'FCA', 'CIF', 'CIP' and other trade terms used to describe the obligations of the parties shall have the meanings assigned to them by the International Chamber of Commerce, Paris, in the current edition of its edition commonly referred to as Incoterms". The Tribunal duly remarks that, according to Incoterms 2000 (p.65), "[T]he seller . . . has to procure marine insurance against the buyer's risk of loss of or damage to the goods during the carriage, . . . this term [CIF] [being] used only for sea and inland waterway transport". "'Cost, Insurance and Freight' means that the seller delivers when the goods pass the ship's rail in the port of shipment". Again, p.66 of Incoterms 2000 specifies that under a c.i.f. contract "[t]he seller must deliver the goods on board the vessel at the port of shipment on the date or within the agreed period". Incoterms 2000 (p.66) makes it clear, however, that, even under a c.i.f. contract "[t]he seller must provide the goods and the commercial invoice or its equivalent electronic message, in conformity with the contract of sale", thereby confirming that, even under c.i.f. arrangements, the seller's unilateral opting out of contractual obligation to provide goods in conformity with the contract of sale is not possible.

62. The Tribunal takes due note of the fact that the Price Schedule of 28 June 2000, which constitutes part and parcel of the Contracts . . ., promises delivery, CIF Chittagong (italics added), within four months of receipt of the contract and the L/C and that the Claimant's letters of 14 May 2000 and 5 July 2000 accept the Respondent's offer to supply the [goods] on the CIF/Chittagong basis and that Incoterms 2000 (p.65) states "If the parties do not intend to deliver the goods across the ship's rail, the CIP term should be used". In view of this, coupled with the fact that the intended delivery point was Chittagong and that Clause 9.1 of the GCC refers to CIP as well as CIF, the Tribunal takes the view that, with all due respect to the learned counsel for the Claimant and the learned counsel for the Respondent, the contracts at issue are not c.i.f. but CIP (Carriage and Insurance Paid to) (Chittagong) ones. According to Incoterms 2000, "Carriage and Insurance paid to . . ." means that "the seller delivers the goods to the carrier nominated by him, but the seller must in addition pay the cost of carriage necessary to bring the goods to the named destination. This means that the buyer bears all risks and any additional costs occurring after the goods have been delivered. However, in CIP the seller also has to procure insurance against the buyer's risk of loss of or damage to the goods during the carriage" (italics added). Incoterms 2000 further runs "The seller must provide the goods and the commercial invoice, or its equivalent electronic message, in conformity with the contract of sale . . . The seller must deliver the goods to the carrier contracted . . . for transport to the agreed point at the named place on the date or within the agreed period" (italics added). The Tribunal is satisfied that in CIP, as in CIF discussed in the preceding paragraph, the seller cannot escape from the obligation of supply goods in conformity with the contract either.

63. While respecting the avowed intention of the parties to execute c.i.f. Contracts . . . the Tribunal duly recognizes, however, that, while CIF and CIP terms are merely loose-fitting garments which do not fit the case at issue snugly, the CIP cloak gives a better fit, the agreed delivery point being not Calcutta but Chittagong. In the ultimate analysis, however, the Contracts could be described as CIF or CIP contracts only with a difference: according to Clause 12.1 of the GCC the supplier is, as has been pointed out in paragraph 60 supra, under an obligation to insure the goods against loss or damage incidental not only to transportation and delivery, as under CIF and CIP contracts, but also to manufacture, acquisition and storage (italics added). Because of this distinctive feature, the question as to whether to characterize the Contracts as CIF or CIP ones may thus, after all, be said to be academic.'