《联合国国际货物销售合同公约》中的免责条件

第二节　《联合国国际货物销售合同公约》中的免责条件

《联合国国际货物销售合同公约》第七十九条规定，“当事人对不履行义务，不负责任，如果他能证明此种不履行义务，是由于某种非他所能控制的障碍，而且对于这种障碍，没有理由预期他在订立合同时能考虑到或能避免或克服它或它的后果”。

但对于第三方违约造成的合同一方履约困难的免责有较为严格的限制。公约第七十九条(2)规定，如果当事人不履行义务是由于他所雇佣履行合同的全部或一部分规定的第三方不履行义务所致，该当事人只有在以下情况下才能免除责任:(a)他按照上一款的规定应免除责任;和(b)假如该款的规定也适用于他所雇佣的人，这个人也同样会免除责任。

免责仅对履约障碍存在的期间有效。而且不履行义务的一方必须将障碍及其对他履行义务能力的影响通知另一方。如果该项通知在不履行义务的一方已知道或理应知道此一障碍后一段合理时间内仍未为另一方收到，则他对由于另一方未收到通知而造成的损害应负赔偿责任。

应当注意本条规定的免责不妨碍任何一方行使本公约规定的要求损害赔偿以外的任何权利。

案例18

Raw Materials Inc.v.Manfred

Forberich GmbH ＆ Co.，KG United

States District Court，Northern District，

Illinois，Eastern Division

2004 WL 1535839

FILIP，J.

RMI，located in Chicago Heights，purchases，processes，and sells used railroad rail which is eventually reheated and rerolled into new products.Forberich，located in Germany，sells used railroad rail，generally obtaining rail from the former Soviet Union.On February 7，2002，RMI entered into a written contract with Forberich in which Forberich agreed to supply RMI with used Russian rail.The rail was to be shipped from the port in St.Petersburg，Russia.It takes three to four weeks for ships loaded with rail to travel from Russia to the US.The contract provides for “Delivery by:6－30－2002， ”“ F.O.B.Delivered Our Plant， Chicago Heights， IL， ”and“ Shipping Instructions:RMI， INC.c/c Chicago Heights Steel， Chicago Heights， IL 60411.”

The parties agree that in June 2002，Forberich sought an extension of its time for performance under the contract.However， the circumstances surrounding the extension request are disputed.Forberich maintains that，pursuant to its normal practice，it had “earmarked”a particular supplier，Imperio，to provide it with rails that it would use to fulfill its contract with RMI.In late June 2002，Imperio defaulted on its contractual obligation to provide rail to Forberich.Forberich claims that it requested an extension from RMI because of Imperio's breach.［...］Although the parties do not dispute that RMI agreed to extend the time to December 31， 2002 and Forberich“has never delivered the contracted goods to RMI”，the question of whether Forberich was required to deliver the rails to RMI's place of business by December 31， 2002 or merely was obligated to load the rails on a ship by that date is nevertheless significant because it bears on the viability of Forberich's contention that its failure to perform should be excused.Forberich asserts that its failure to perform should be excused because it was prevented from shipping the rail by the fact that the St.Petersburg port unexpectedly froze over on approximately December 1， 2002.［...］

Discussion

As set forth above，it is undisputed that Forberich was contractually obligated to ship 15 000 to 18 000 metric tons of rail to RMI and that it failed to do so.Thus，Forberich's ability to avoid summary judgment is dependant on whether it has presented sufficient evidence to support its affirmative defense of force majeure based on the theory that it was prevented from performing by the freezing over of the St.Petersburg port.For the reasons explained below，the Court denies Plaintiff's motion for summary judgment.

Whether the Frozen Port Could Have Prevented Performance

As mentioned above，RMI contends that the frozen port could not have prevented Forberich from performing because the port did not freeze over until mid-December 2002，and，since it takes 3－4 weeks for a ship carrying rail to travel from St.Petersburg to the United States，Forberich would have had to have shipped out the rail before the port froze in order for the shipment to arrive by the December 31，2002 deadline.RMI's argument is premised on its contention that it has established beyond genuine dispute that Forberich was obligated to ship the materials so that they would arrive by December 31， 2002(rather than just load the ships by that date，as Forberich contends)．In this regard，RMI asserts that Forberich's admission in its answer that it“promised to deliver the aforementioned goods at RMI's place of business on or before June 30， 2002， ”， is a judicial admission.While the Court agrees that this statement in RMI's answer is a judicial admission that establishes beyond contention the fact that Forberich initially promised to deliver the rail at RMI's place of business on or before June 30， 2002，this does not establish the inapplicability of the force majeure defense for at least two independent reasons.

First，even assuming that Forberich was obligated to deliver the rails by December 31， 2002，Forberich has nonetheless presented evidence(which the Court must construe in the light most favorable to Forberich)that the frozen port prevented it from meeting this obligation.In particular，Mr.Forberich testified that ice interfered with shipping not just in mid-December， but as early as the end of November.The fact that a Forberich ship left the port on approximately November 20，2002 is not inconsistent with the port freezing in the remaining ten days or so of that month.Furthermore，as noted above，no conclusive evidence has been presented that any ships left the St.Petersburg port until months after November 20， 2002.In light of the undisputed fact that delivery to a port in the U.S.from St.Petersburg takes at least 3－4 weeks and Mr.Owczarzak's testimony that he“would have been satisfied had the 15 000 to 18 000 tons，metric tons of rail，been delivered to a port in the United States as of December 31st，2002， ”Forberich has presented evidence that it would have been in position to meet a December 31， 2002 deadline for delivery to the U.S.by shipping out rail in the last week or so of November or the first few days of December but was prevented from doing so by the frozen port.Thus，for this reason alone，there is a disputed question of fact as to whether the frozen port prevented Forberich from performing its contractual obligations.

The second reason RMI has failed to demonstrate that the frozen port did not prevent Forberich's performance is that although it is established beyond contention that Forberich promised in the February 7， 2002，written agreement that Forberich would deliver the rail at RMI's place of business on or before June 30， 2002，an issue of fact exists regarding the nature of the extension Mr.Owczarzac orally agreed to for the time for performance of the contract.Neither side has presented evidence of what exactly was said by Mr.Owczarzak and Mr.Forberich during the initial telephone conversation in which Mr.Owczarzak agreed to an extension.On June 27，2002，Mr.Owczarzak sent Mr.Forberich a letter stating “［w］ith reference to our telephone conversation of Wednesday，［sic］Jun 26， 2002，RAW MATERIALS，INC.has agreed to extend the delivery date from June 30，2002 until a later date during this calendar year on CONTRACT FORB 3464/02.This later date will be confirmed sometime during your visit to Chicago in July of this year.”However，this letter contemplates further discussions and，although the parties apparently did not meet in Chicago in July，Mr.Owczarzak testified that they did have further discussions，though he did not testify to the content of these discussions in detail.Mr.Owczarzak also testified that he conveyed to Mr.Forberich that delivery to any port in the U.S.by December 31，2002 would be satisfactory but he did not specify when or how(orally or by letter)he made this communication.In his declaration， Mr.Forberich stated that his understanding was that Forberich was given an extension“until December 31，2002 to load the rails and execute a bill of lading to be in compliance with the contract.”

Given that the original contract obligated delivery to RMI's place of business in Chicago Heights by June 30，2002，it appears unlikely that Mr.Owczarzak would have done more than agree to extend the delivery date to December 31， 2002，and change the delivery location to any U.S.port，but the evidence is unclear and contradictory and it is not the Court's role in deciding a summary judgment motion to weigh evidence....Thus，a question of fact exists as to whether Forberich was obligated to deliver the rail to the U.S.by December 31， 2002 or whether Forberich was merely required to load the rail by that date.Consequently，since it cannot yet be determined whether Forberich would have met its contractual obligations by shipping rail from the port at the end of December，a question of fact exists as to whether the port's freezing prevented Forberich from performing its obligation，even assuming the port froze in mid-December.

Foreseeability

RMI's sole basis for its contention that the early freezing of the port was foreseeable is the assertion，without citation to the record，in its brief in support of summary judgment，that“it hardly could come as a surprise to any experienced shipping merchant(or any grammar school geography student)that the port in St.Petersburg might become icy and frozen in the Russian winter months.”However， Forberich presented evidence that the severity of the winter in 2002 and the early onset of the freezing of the port and its consequences were far from ordinary occurrences.It is undisputed that although the St.Petersburg port does usually freeze over in the winter months，this typically does not happen until late January，and such freezing does not prevent the vessels from entering and exiting the port.More to the point，Mr.Forberich testified that although ice breakers are normally used to allow for shipping，the winter of 2002 was the worst winter in St.Petersburg in almost sixty years and that ice interfered with shipping at the end of November and that even the icebreakers were stuck in the ice.He also testified that these were “unexpected weather conditions.”Whether it was foreseeable that such severe weather would occur and would stop even the icebreakers from working is a question of fact for the jury.In so holding，the Court notes that the freezing over of the upper Mississippi River has been the basis of a successful force majeure defense.In sum，because questions of fact exist as to whether the early freezing of the port prevented Forberich's performance and was foreseeable，Forberich's force majeure affirmative defense may be viable and summary judgment would be inappropriate.

Conclusion

For the foregoing reasons，Plaintiff's motion for summary judgment is denied.

思考题

1.简述本案案情。

2.作出即决判决的条件是什么?法官认为本案案情符合这一条件吗?

3.依据CISG第79条的相关规定，需要满足哪些条件违约方才能免责?

4.本案中，法官是如何对“港口结冰这一事件”进行分析的，它是否构成履行障碍?