Redesignated and amended at 81 FR , Aug. Authorized supplier, as used in this subpart, means a supplier, distributor, or an aftermarket manufacturer with a contractual arrangement with, or the express written authority of, the original manufacturer or current design activity to buy, stock, repackage, sell, or distribute the part. The contractor may proceed with the acquisition of electronic parts from a contractor-approved supplier unless otherwise notified by DoD. A The cost of any required inspection, testing, and authentication of such parts may be charged as a direct cost. B The Government is responsible for the authenticity of the requisitioned electronic parts. If any such part is subsequently found to be counterfeit or suspect counterfeit, the Government will— 1 Promptly replace such part at no charge; and 2 Consider an adjustment in the contract schedule to the extent that replacement of the counterfeit or suspect counterfeit electronic parts caused a delay in performance.
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Consequently, Swiss Law pertaining to cargo contracts is applicable. The relevant legal provisions are OR and Schiffahrtsgesetz vom OR and OR , 1 impose on the consignor the duty to scrutinise 1. The contract between [defence ministry] and Defendant. It has been agreed between Parties that all supplies should be packed according to customary practises for overseas shipment. In this regard special relevance to the duties of Seller derives from the expression "customary practises".
Customary practises for overseas shipment has a different meaning than "Standard Packaging". Defendant itself quotes decisions of the German Bundesgerichtshof Federal Court of Germany where customary packaging is defined as "those standards set generally in the shipping business at the place and at the time of the shipment.
In this regard it has to be stressed that Defendant knew in advance the circumstances relating to the transport as for example the modalities and the destination before the contract of sale was concluded.
A journey during winter time through the Gulf of Biscaya necessitates another packaging than other journeys. The standard packaging does not fulfil the special requirements of "customary practises". Point 5 of the Contract does not mention any inspection methods with regard to the packaging which should have been performed according to customary practises for overseas shipment. It is true that the packaging is one part of the normal inspection procedures of GPS BWB but this national authority is no specialist in the area of overseas shipment.
The parties did not intend to enable Seller to perform the delivery at a low safety level with reference to usual carelessness by fulfilling tasks that are part of the Sellers own affairs.
Just to the opposite Seller should take as much care as if his own affairs were concerned. Under Point 5. Point 4 of the Contract concerns warranty aspects and rules in Point 4. Point 5. That means that accidents are included and loss or damage caused by Seller or Buyer, for example by inadequate packing or marking of the goods are excluded.
This view matches with the intention of the parties that Defendant should be liable for packaging during the entire voyage see for example Point 4. According to Point A9 FOB, the Seller who knows the kind and relevant circumstances of the intended transportation has to provide a packaging that is fit for this kind of carriage. This is different to for example Point A9 of FCA where Seller may choose a standard packaging if he does not know the special requirements connected with the transportation.
If Seller is not specialised in this regard it has to search for specialist advice. Although the buyer had to make the necessary applications, GPS BWB or other respective military authorities are not to be seen as some kind of assistant to Claimant.
This is shown by the provisions that [an officer of the purchasing State] may be present during these tests as an observer, respectively that buyer may assign experts to an inspection team to be nominated by him. As mentioned above, Point 7. However, this only constitutes part of the actual quality inspections.
These cases are only one part of the packaging. A proper packaging consists of more aspects than the cases into which the materials have to be placed. A further analysis of NATO-standards shows that they give only a general approach for packaging and mainly references are made to the contractual agreements about the packaging. These are especially the release, the raising of objections and the rejection of work done by the contractor, the examination whether the work done by the consignee is in accordance with its contractual obligations.
In addition, GPS BWB should warn in advance if problems may endanger the intended project and support the project management and so on. In the instant case the provision about this quality control is contained in Point 7. In this respect GPS BWB functions as an assistant to Defendant insofar as preventive measures to enable a warning in advance to the occurrence of problems or quality controls are done by GPS BWB and otherwise these measures should have been taken by Defendant.
I refer to the wording of para. The contract in para. Finally it refers to the measures applied by the seller for his own overseas shipments. I fail to see in what respect this paragraph can be interpreted as requiring a particularly high packing standard, respectively as requiring a particularly special care to be applied to the packing. Its subsection 2 reads as follows: "The seller must provide at his own expense packaging unless it is usual for the particular trade to ship the goods of the contract description unpacked which is required for the transport of the goods, to the extent that the circumstances relating to the transport e.
Packaging is to be marked appropriately. Also-particularly in a FOB sale-the risks entailed by the employment of a small vessel which is qualified by the expert. In addition the stowing and securing of the cargo in the holds of the vessel as supplied by the buyer is not a duty of the seller, but of the vessel, which fact seems to escape the attention of the expert.
Also, [an officer of the purchasing State] located at the premises of sellers was allowed to participate. From the testimony of. Exactly such a packing was made and performed. The packing was approved and cleared by BWB, a mutually agreed third party expert, a military authority working on the basis of NATO standards. Upon receiving the approval and the clearance sellers had fulfilled their contractual duties in respect of packing.
What sellers had to do, was to provide a customary packing for overseas shipment, applying those measures the seller himself applied for his shipments; that packing needed to be cleared by BWB in application of STANAG It is correct that in principle in a FOB sale sellers responsibility for the quality of the packing does not end upon transfer of the risk. This continuing responsibility does however not mean that any failure of the packing to resist the perils of the voyage necessarily is the consequence of an act of sellers amounting to gross negligence.
The agreement and the undisputed allegations do show that BWB was a third party, a kind of mutually agreed quality controller, upon whose approval and clearance both parties would and were entitled to rely. I do not see that the function of BWB can be construed as being an assistant or auxiliary person according to Code of Obligations Art. BWB acted for both parties, only on application of sellers, as stipulated in the contract para. The packing should be finally controlled, approved and cleared by the jointly selected and agreed expert supervisor, an entity of the German military forces.
BWB was not helping to pack physically and was not under the orders of either party. This jointly agreed expert approved and cleared the packing, whereby it became fully contractual.
Packing is mentioned as seaworthy on D1, plus the document D1 carries the clearance stamp of the expert BWB. The bills of lading upon loading were not claused. In addition defendant has expressly pleaded that on his side there was no wilful misconduct. Plaintiff has never contested this nor has he made any kind of substantiated allegations relating to the degree of negligence committed by sellers.
I feel it to be difficult to base my decision on facts which are denied by one party and which are even not contested nor otherwise alleged by the other party. The mere fact of a packing not resisting the perils of the voyage, respectively proving to be insufficient during or after the voyage does not constitute gross negligence in itself. In recovery actions according to Swiss law the party against which the marine insurer is taking recovery is only liable to the extent or in proportion of its own portion of negligence.
In this respect the expert. The expert would have selected a better vessel. Also the expert would have recommended to follow particular rules in stowing and securing the cargo on board. In addition the cargo was several times in several ports moved and restowed, which as I see it is not contested. Those conditions kind of vessel, shifting and restowing of cargo several times of the transport were not necessarily customary nor usual.
As to this no pertinent allegations were made nor was evidence taken. The original insurance contract provided no insurance cover for damages resulting from insufficiency or unsuitability of packing ICC A Clause 4.
It is doubtful whether the payment made by the claimant the marine insurer and its acceptance by the assured post festum amount to a contractual alteration of the insurance contract and therefore to an extension of the cover. In any event such alteration after the event could not be lawfully used against the defendant. Also such alteration combined with the assignment of rights in favour of the plaintiff would alter the system provided by article 51 Swiss Code of Obligations in a way not tolerated by Swiss material law.
The payment made by the claimant must rather be regarded as a voluntary ex gratia payment not justified by the original insurance contract which does not lead to a damage recoverable by the claimant from the defendant. Concluding I think that in the absence of any specified factual allegations and evidence as to quality and portion of fault, respectively negligence it is difficult to conceive that the making of a BWB approved packing meeting NATO standards as provided in the contract can be qualified as an act of gross negligence.
The defendant has delivered a contractually correct packing. The mere fact alone that the packing did not resist all perils of the voyage does not allow the automatic conclusion that the defendant violated the contract nor that there is gross negligence on his part. Also the voluntary ex gratia payment made by claimants in contradiction to the exclusion in the original insurance policy and the assignment connected therewith do not entitle claimants to recover from defendants.
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Consequently, Swiss Law pertaining to cargo contracts is applicable. The relevant legal provisions are OR and Schiffahrtsgesetz vom OR and OR , 1 impose on the consignor the duty to scrutinise 1. The contract between [defence ministry] and Defendant. It has been agreed between Parties that all supplies should be packed according to customary practises for overseas shipment.
Standardization Agreements (STANAGs)
STANAG - Partial List