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  • QA 238
    Question:
    Under ECC*, who is liable when arrival weights show a loss of over 0.5%? **
    Background:
    We have purchased coffee basis ECC, FOB, net shipped weights with 0.5% franchise. The arrival weight showed a loss of more than 0.5% and we have claimed the excess loss from our shipper. The shipper refuses to settle our claim, stating that on shipment the weights were correct as certified by certificates of weight in his possession that show there was no weight shortage on departure. What should or could we respond to this?
    Asked by:
    Importer - Switzerland
     
    Answer:

    As we understand it shippers are responsible unless they can prove that the responsibility for the loss (or damage) lies elsewhere… 

    Of course we cannot comment on individual cases but in general terms this is the situation:

    • Unless expressly agreed otherwise in the contract, the issuance of a weight certificate at origin does not absolve a shipper from his responsibilities under ECC. Article 3 (e) of the ECC states that 'any loss in weight, as ascertained in accordance with Article 4(c) or 4(d), in excess of 0.5% of the shipped weight shall be refunded by the sellers'. ***
    • Without concrete evidence that the weight loss is due to an external event that took place after a container is loaded and sealed, the burden of proof to the contrary rests with the shipper. In this respect weight notes or certificates issued at origin do not help unless of course the company issuing those weight notes or certificates accepts responsibility. But this is between the shipper and that company - it has nothing to do with the buyer or his insurers.
    • Therefore, as long as a buyer respects the applicable conditions and time limits of the ECC then under ECC shippers are responsible for any weight loss in excess of the 0.5% weight franchise.

    We appreciate that this particular condition of ECC may be of concern to shippers but would suggest that there is always the option of agreeing a modified clause in the actual sales contract. Alternatively, as some shippers do, adding a small weight tolerance in each bag where coffee is shipped in bags would minimize the risk of weight claims occurring.

    N.B.: For the US the GCA (Green Coffee Association of New York) contracts do not make any mention of a weight franchise - if this is required it must be agreed at the time of sale and should be stated explicitly in the contract.

    Posted 06 September 2010

    *ECC = The European Contract for Coffee, issued by the European Coffee Federation - ECF and downloadable from www.ecf-coffee.org under 'Publications'

    ** It is assumed here that the coffee was transported in a container.

    ***
    Article 3 (e)
    Any loss in weight, as ascertained in accordance with article 4(c) or 4(d), in excess of 0.5% of the shipped weight shall be refunded by the sellers.
    Article 4(c) Coffee in Bags
    The coffee shall be weighed at the buyers' expense as quickly as possible but not later than 14 calendar days from the final date of discharge at the port of destination, inconformity with local custom.
    Article 4(d) Coffee in Bulk
    The coffee shall be weighed either upon discharge into silo or on a weighbridge at the buyer's expense as quickly as possible but not later than 14 calendar days from the final date of discharge at the port of destination.
    Article 4(f)
    The buyers shall forward to the sellers a detailed weight note, certified by an independent recognised weigher, as quickly as possible but not later than 28 calendar days from the date of weighing failing which the shipping weight may be regarded as final.

    Provided intermediaries and buyers/sellers of the same parcel forward a weight note not later than 2 working days after receipt, such weight note shall be considered to have been forwarded in time.
     

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