MEMORANDUM FOR CLAIMANT

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UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT RESPONDENT would take either. All of this suggests the question: was CLAIMANT‘s failure to examine cartons with 2008 squid appropriate for both alternatives? 115. If RESPONDENT had supplied sized squid, every carton would have presented the same proportion of squid within the 100-150 g size bracket. Not being the ‗run of the catch‘, the year in which the squid were caught would not have affected the size of the squid in the cartons. The 2008 cartons would not have raised doubts in CLAIMANT‘s mind as it would have been possible to supply contract-conforming 2008 squid at that time of the year. After all, 13% of all the unsized 2008 squid RESPONDENT actually delivered fell within the lower end of the 100-150 g spectrum [Cl. Ex. 8]. If the proportion of 100-150 g squid in the 2007 boxes was right, a reasonable person would have assumed that the ratio in the 2008 cartons would also be correct. Hence, under this option, CLAIMANT would have gained nothing from specifically targeting boxes with squid caught in 2008. 116. If the squid were unsized, the cartons labelled ‗illex danubecus 2007‘ would have far outnumbered those labelled ‗illex danubecus 2008‘. This overrepresentation of 2007 squid would have been necessary to offset the proportion of squid without the 100-150 g range that would have predominated amongst the smaller 2008 squid. Under these circumstances, it would not have come as a surprise that in a sample of 20 cartons none was from the year 2008. Their frequency would have been expected to be extremely low. An attempt to search for a carton labelled ‗illex danubecus 2008‘ would have been like looking for a needle in a haystack and could have entailed breaking up a great number of pallets. Apart from needlessly rendering more squid unsaleable, this persistence would have resulted in an even greater detriment to CLAIMANT, as the squid are always transported in pallets to the docks where they are loaded onto the long-liners [Cl. Ex. 10 ¶9]. Consequently, far from gaining, under this option, CLAIMANT would have stood to lose a lot from persisting with the inspection. 117. To sum up, CLAIMANT did not see the need to specifically examine cartons labelled ‗illex danubecus 2008‘ because it supposed that they would either represent a very small proportion of the consignment or have the same content as those cartons with 2007 squid. ii. Alternatively, the Mediterranean long-liners were swift in inspecting the squid after their reception under Art. 38(3) CISG 118. If the Tribunal finds that CLAIMANT‘s initial examination fell short of Art. 38(1) CISG, as is often the case when goods are resold [CISG - AC Opinion No. 2], the sub-purchasers conducted a swift and adequate inspection of the squid according to Art. 38(1)(3) CISG. 24
UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT 119. Since a substantial part of the lot was redispatched by CLAIMANT within the next week of their arrival [Cl. Ex. 10 ¶11], CLAIMANT was entitled to defer the inspection of the squid to the Mediterranean long-liners under Art. 38(3) CISG. At the time of the conclusion of the contract, RESPONDENT was aware of the possibility of redispatch [Cl. Ex. 1]. 120. As all of Art. 38 CISG is subject to the standard set in its sec. (1) [Honnold ¶252], the question of whether the long-liners examined the squid within as short a period as was practicable in the circumstances must be addressed. 121. As soon as the sub-purchasers arrived at the fishing grounds and were ready to fish, the squid were inspected and their non-conformity became evident [Cl. Ex. 10 ¶12]. CLAIMANT was promptly informed of the lack of conformity on 29 July 2008 and the news was broken to RESPONDENT on the very same day [Cl. Ex. 5]. 122. Given the circumstances, it was entirely reasonable of the long-liners to wait until reaching the fishing grounds to perform the inspection. Since once defrosted the squid could only be used as fishmeal [R. for A. ¶17], one had to first reach the fishing grounds to have been able to put the inspected goods to use [Honnold ¶252]. To have examined the squid beforehand would have ensued in an unreasonable wastage of resources. B. CLAIMANT notified RESPONDENT of the nature of the lack of conformity within a reasonable time after it was discovered pursuant to Art. 39(1) CISG 123. CLAIMANT has not lost the right to rely on the non-conformity of the squid as it specified the nature of the contractual breach to RESPONDENT within a reasonable time after its discovery [Art. 39(1) CISG]. 124. CLAIMANT was informed by its customers of the lack of conformity on 29 May 2008 [Cl. Ex. 5]. On the same day, CLAIMANT sent RESPONDENT an email relaying the news. A fortnight later (16 August 2008), RESPONDENT was emailed a report by a certified testing agency (TGT Laboratories) in which the nature of the lack of conformity was specified in fine detail. 125. During the brief time that elapsed between the discovery of the lack of conformity and the notification of its nature, the goods made the journey from the fishing grounds far out at sea back to CLAIMANT‘s cool stores, a testing agency had to be engaged at RESPONDENT‘s request [Cl. Ex. 6], an inspection of the goods was performed and a report of the examination was drafted. Eighteen days seem an extremely short and reasonable time span for all this intense activity. In comparison, it has been held that a ‗rough average‘ of one 25
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MEMORANDUM FOR CLAIMANT

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