Facts
On October 1, 1990, the company Y. A.S. in Istanbul concluded a contract with the company [O.] in Vaduz and the company [F. AG] in St. Gallen for the purchase of 5,000 passenger cars FSM 650 of Polish origin. The vehicles were to be delivered "CIF Kapikule". For all questions not regulated in the contract text, reference was made to Liechtenstein law and the "Incoterms 1980".
Within the framework of this contract, the company Y. A.S. immediately called up 640 automobiles. The sellers arranged for an initial delivery of 320 automobiles, which, however, did not arrive in full at the buyer, as 304 vehicles were sent to a company C. Ltd. in Istanbul and were there seized by creditors. A second delivery of 120 automobiles also did not arrive in full, as 8 vehicles were again delivered to the company C. Ltd. in Istanbul.
The company Y. A.S. filed a lawsuit against the company [O.] and the company [F. AG] for damages in the amount of US$ 1,538,404.-- plus interest. The Commercial Court dismissed the claim, whereupon the plaintiff appealed.
Considerations
The Federal Court states that the CIF clause establishes a duty of delivery by the seller up to the loading and from there a duty of dispatch to the place of destination. The seller must conclude a freight contract with precise indication of the recipient's address and is liable for the conduct of the forwarding agent he has commissioned.
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