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| A German seller and an Argentinian buyer concluded a contract for the sale of dried mushrooms to be shipped to the buyer, with a C & F delivery clause. The goods, which were shipped from Hong Kong to Buenos Aires, deteriorated during shipment. The buyer commenced an action against the seller claiming damages and alleging non conformity due to defects of the goods which caused deterioration during transportation.
As in the first instance decision, the appellate Court held that according to Art. 67 CISG the risk for deterioration of goods passes to the buyer from the time the seller delivers the goods to the first carrier. The Court also held that the C & F clause obliged the seller to deliver the goods for shipment and to pay the freight, but did not change the time of passing of risk, which remained the time of loading aboard the ship. Moreover, in the case at hand, this was confirmed by the fact that the buyer had concluded an insurance policy for transportation risks. The Court finally held that according to Art. 66 CISG, the buyer was not discharged from its obligation to pay the price, as deterioration of the goods occurred after the passing of risk and the buyer had not proved that deterioration was due to an act or omission on the part of the seller. |