MEMORANDUM FOR RESPONDENT - Pace University

QUEEN’S UNIVERSITY FACULTY OF LAW
mackerel found an examination nearly identical to Claimant’s to be unreasonable. Mackerel, like
squid, is a “predominant” bait for long-liners in Mediterraneo [Req. for Arb. 7]. Frozen mackerel
were delivered from multiple catch seasons but the buyer only sampled boxes from one season.
The court found the buyer should have examined boxes from all seasons [Sergueev v. DAT
(Denmark 2002)]. Similarly, Claimant should have examined cartons from both 2007 and 2008
seasons. Had it done so, Claimant would have discovered the non-conformity. By failing to
examine a random or sufficiently large sample of the Squid, Claimant failed to discharge its duty
under art. 38(1) CISG and discover the non-conformity on 1 July 2008.
2. Claimant did not exercise the requisite degree of diligence in its examination.
93. Claimant failed to reasonably examine the Squid by not exercising the degree of diligence
required in the circumstances. The adequacy of an examination under art. 38(1) CISG depends
on the circumstances of the case [DiMatteo 362]. Here, two circumstances compelled a rigorous
examination. First, where a buyer has previously purchased non-conforming goods from a seller,
subsequent purchases require a more diligent examination [Ferrari 192; LG Aug 1989]. Although
the Contract was the first transaction between the Parties, Claimant knew that Danubian squid
were “not consistent in quality” [Req. for Arb. 11-12; Cl. Ex. 10 4]. Given that knowledge,
Claimant was required to perform an especially diligent examination. Second, perishable goods
for human consumption have been held to require rigorous examination [Schwenzer in
Schlechtriem/Schwenzer 2010 613; Kingfisher v. Comercial (Spain 2007)]. Here, the Contract required
the Squid be “fit for human consumption” [Cl. Ex. 4], a requirement on which Claimant insisted.
However, far from being especially diligent, Claimant examined only squid from the 2007 catch,
and defrosted only 0.025%, or USD 80 worth of squid, from a delivery worth USD 320,000 [Cl.
Ex. 4]. This examination cannot be considered diligent. By failing to examine a reasonable
sample or exercise the requisite degree of diligence, Claimant failed to discover the non-
conformity when it ought to have done so.
B. Claimant did not give notice of the non-conformity until 16 August 2008,
which was not within a reasonable time under art. 39(1) CISG.
94. Claimant alleges that it gave notice of the non-conformity on 29 July 2008 [Cl. Memo. 70].
However, Claimant did not provide notice sufficient to satisfy art. 39(1) CISG until 16 August
2008, after the reasonable notice period had expired. Art. 39(1) CISG requires the buyer to
provide the seller notice, specifying “the nature of the lack of conformity” within a “reasonable
time” after the non-conformity was or ought to have been discovered. Claimant did not give
notice specifying the nature of the non-conformity until 16 August 2008 [1]. Notice 45 days after
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