In 1994 and 1995, a Swiss company (Respondent) entered into several contracts for the sale of cereals to a German company (Claimant). The contracts were subject to the 1980 United Nations Convention on Contracts for the International Sale of Goods, Swiss law, the ICC Incoterms rules and international trade usages, and provided for delivery CIF Wroclaw (Poland) for all shipments except one, which was CIF Hamburg (Germany). Some of the initial shipments were found to be contaminated upon arrival at the Polish port of Gdynia and were seized by the Polish sanitary authorities. Following cleaning, the goods were declared fit for consumption and cleared for importation. Subsequent shipments were also found to be contaminated on arrival and were refused. The purchaser declared the contracts void due to a fundamental breach by the seller and sought damages for the costs of cleaning, laboratory investigations, storage, transportation and fumigation charged to it by the ultimate Polish buyer.

'No indemnification for the costs of transport of the [cereal] from Gdynia to Wroclaw according to the CIF-clause Incoterms 1990

During the meeting held on . . . the Claimant stated more precisely how the "cleaning" costs, for which it claimed indemnification, originated. On this occasion the Claimant once more stated that the [cereal] was never transported to Wroclaw by the Defendant despite the fact that CIF Wroclaw Incoterms 1990 had been agreed upon and that the expenses for these road transports were included in the "cleaning" costs, too.

Although the provisions CIF Incoterms 1990 can be only applied directly to sea and inland waterway transport, an analogous application of these provisions for road transport is possible (see Decision of the Swiss Supreme Court, BGE 122 III 106 et seq.). Therefore, if the parties expressly agree upon CIF Wroclaw, the Defendant was not only obliged to conclude a contract of sea-carriage between the Chinese port of loading and the Polish port of destination in Gdynia, but also a contract of road carriage between Gdynia and the final destination in Wroclaw at its own expense.

Despite the fact that the Defendant obviously did not perform/have performed the contractually required road transport to Wroclaw, no indemnification can be granted. The Claimant has never expressly asked for a specific indemnification for the road transportation costs and it has never submitted any documents as evidence of the exact amount of these costs.'