Data

Date:: 20-02-2007
Country:: Montenegro
Number:: Ca. No. Mal. 184/04
Court:: Appellate Court of Montenegro
Parties:: Hartman LLC v. Grlic Plus LLC

Keywords

CONTRACT INVOLVING CARRIAGE OF GOODS (ART. 31(A) CISG) - OBLIGATION TO DELIVERY CONSISTING IN HANDING OVER THE GOODS TO THE FIRST CARRIER

Abstract

[CLOUT Case no. 1019. Abstract prepared by Aneta Spaic]

A Croatian company, the seller, entered into a contract with a Montenegrin company, the buyer, for the sale of cardboard boxes for eggs. As the buyer failed to pay the price of the goods, the seller brought action in court claiming the payment of the price of the goods and accrued interest. The evidence and documents submitted confirmed that the parties were in a regular business relationship, and that the seller delivered the goods by handing them over to a carrier, pursuant to the order of the buyer. The buyer, however, alleged that it was not clear to which delivery the sum was related since it had already made payments in advance. As a matter of fact, all obligations relating to the goods delivered were settled and the goods referred to in this particular case were never delivered. The buyer also alleged that, had the goods at hand been delivered, it would have objected to them and contacted the seller for cross-checking the status of accounting and closing of mutual obligations. In its submissions the buyer stressed that the dispatch did not point out who took the goods on behalf of the buyer. The seller disputed the buyer’s allegations since the transport of goods was performed by a clearly identified carrier and also pointed out that the buyer signed for the shipment on the day the goods were delivered, and that the account that followed was sealed by the custom house in Koprivnica.

The Commercial Court of Montenegro noted all of the allegations of the buyer. The Court, however, found that those facts did not influence the decision in any manner. The seller presented to the Court evidence of the dispatch of the goods from which it was determined that the buyer signed for the shipment when it received the goods. In addition, the confirmation of the performed forwarding services and the international consignment note showed that the goods were delivered. This is in accordance with Article 31 (a) CISG which states that if the seller is not obliged to deliver the goods at any particular place, its obligation to deliver consists, if the contract involves carriage of goods, in handing over the goods to the first carrier for transmission to the buyer. According to the Convention this amounts to a delivery made to the buyer. Therefore the Court ruled in favour of the seller.

The Montenegrin buyer brought an appeal against this decision. The Court of Appeals, however, rejected it noting that the Commercial Court had correctly applied Article 31 (a) CISG. According to the evidence, the buyer ordered the goods and they were delivered. No evidence that a different delivery of the goods had been arranged or that the debt had been settled through advance payment was provided by the buyer.

Fulltext

}}

Source

Original in Montenegrin and English Translation:
- available at the University of Pace website, http://cisgw3.law.pace.edu}}