- Xiamen Intermediate People's Court
APPLICATION OF CISG BASED ON CHOICE BY PARTIES (ART. 1 CISG)
USAGES EXPRESSLY AGREED TO BY PARTIES (ART. 9(1) CISG)
A Hong Kong seller and a Chinese buyer concluded a contract for the sale of a certain quantity of fish powder. According to the contract the powder was to be free of living insects at the time of shipping; it was the buyer's duty to obtain all risk insurance; payment was to be made on the basis of a certificate of inspection. After taking delivery the buyer informed the seller that the powder showed a great number of living insects. Then the buyer sued the seller for damages.
The Court held that the case was to be decided according to the Foreign Economic Contract Law of China (FELC), CISG and international usage, both parties having so agreed at trial.
Applying FELC, Art. 9(1) CISG and relevant international usage, the Court rejected the buyer's claims. Since the contract included a c&f FO clause, the buyer had to bear all risks from the moment the cargo passed the railing of the ship. The seller had sufficiently proved, by means of several certificates of inspection, that the powder contained no living insects when loaded, while the buyer had not been able to prove the contrary. Therefore the fact that living insects were found in the goods was a question of responsibility for risk and not of responsibility for quality.
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Published in Chinese:
- Guo Guoting, Analysis of Modern Commercial Disputes with Foreign Elements, Peking, 1995, 153-171
Source and English translation:
- Prof. Dr. F. Münzel, Max Planck Institut für ausländisches- und internationales Privatrecht (Hamburg)}}