tłumaczenie na polski

                                                                                                                                                                   Gdańsk 28.05.2004

  International Court of Arbitration at Krajowa Izba Gospodarki Morskie ul.Armii Krajowej 24  Gdynia

                                                                                                                                     Plaintiff: N. Spółka z o.o. ul. Kpt.ż.w. W.P. 1

                                                                                                                                                         80-958 Gdańsk

                                                                                                                                    Defendant: S. S.A. 16 Square de la … 91302 Massy Cedex

                                                                                                                                                               France   

     Request for arbitration

 Acting on behalf of the Plaintiff as its proxy I hereby apply for awarding to Plaintiff the amount of PLN 665.953,90  comprising the costs incurred by the Plaintiff in connection with performance of warranty repairs of the vapour recovery unit (VRU) defectively produced by the Plaintiff. At the same time I would like to inform that this claim may be altered subject to final provisions of agreement with J. company. The final price of execution of repairs is currently being negotiated with the executor of necessary repairs and will be communicated to the Arbitral Tribunal immediately upon termination of the negotiations. I also apply for awarding to the Plaintiff the costs of proceedings.

     Reasons

On 30th July 1999 the Plaintiff and the Defendant have concluded an agreement concerning delivery and assembly of hydrocarbon fumes recovery system. According to Clause 30.2 of the Agreement the parties have agreed to submit any dispute arising from the Agreement to International Court of Arbitration in Gdynia. As provided further in the said Clause, disputes should be resolved by three arbiters, and a lawyer should be the chairman of the tribunal. English should be the language of the proceedings. According to Clause 30.3 the Agreement is construed under and ruled by Polish law. Evidence: contents of Clause 30 of the Agreement of 30th July 1999 (page 28 and 29 of the copy of the Agreement). According to the provisions of the Agreement of 30th July 1999 the Defendant agreed to perform a “turn-key” vapour recovery unit for Morski Terminal (Marine Terminal) of N. Spółka z o.o. (Ltd.) in Gdańsk. Delivery of equipment was performed on DDP Port Gdański conditions according to INCOTERMS 1990. Beyond dispute is that the system to be performed by the Defendant was to be capable to limit emission of hydrocarbons to the level of no more than 1 g/m3. Such conditions have been set in Clause 1.10 “Object of the Agreement” as well as Appendix I to the Agreement. Evidence: Clause 1.10 and Appendix I to the Agreement (page 6 of the Agreement and pages 3 and 4 of Appendix I). Until the day of placing this claim the said system has never achieved the emission standard set in the Agreement. The multiple emission tests performed during actual loading have shown that hydrocarbons emission is considerably higher than the level set in the Agreement.  The Plaintiff had many times called upon the Defendant to undertake actions that would allow VRU to achieve the level of hydrocarbons emission set in the Agreement. The Defendant  decided that the failure to achieve the agreed level of emission is due to improper pumps which were an essential and integral part of the VRU system. The Defendant sent three pumps which were an essential part of the VRU systems to a Swiss company B. in order to be repaired. These pumps were installed again on 10th June 2002, the system however still failed to achieve the agreed parameters. The Plaintiff has incurred the costs of receipt of the delivery which were not reimbursed by the Defendant despite the fact that DDP delivery conditions have been set beforehand. Tests performed on 26th June 2002 by experts from Politechnika G. have shown that the emission level continued to considerably exceed the level set in the Agreement, moreover, the emission level tended to rise with passing time. Repeated tests performed upon Plaintiff’s order by experts from Politechnika G. in the presence of the Defendant’s representatives on 25 and 26th August 2002 showed emission level of 144 g/m3 at the outlet of the system. The Defendant’s representatives did not make any reservations as to the performance of the measurement neither during the test nor at any time later on, even though they had at their disposal a copy of the report from the measurement of hydrocarbons concentration at inlet and outlet of VRU during loading of m/t N. W. tanker on 25 and 26th August 2002, called upon as evidence to this request for arbitration. Evidence: 1. report from the measurement of hydrocarbons concentration at inlet and outlet of VRU during loading of H. K. tanker              2. report from the measurement of hydrocarbons concentration at inlet and outlet of VRU during loading of m/t N. W. tanker on 25 and 26th August 2002. Agreement of 30th July 1999 contained a provision concerning Defendant’s warranty for emission parameters during the period of 36 months from start-up. Due to the fact that during the warranty period the Defendant has performed an essential repair of the item for which warranty was granted, the warranty period has begun anew at the moment when the pumps were returned after repair, according to provision of Article 581 paragraph 1 of Polish Civil Code which is the substantial law to be applied to the Agreement of 30th July 1999 as provided in Clause 30.3 of the said Agreement. In order to establish the reason of defective work of the system, the Plaintiff has ordered P. Sp. z o.o. (Ltd.) to perform a technical expertise concerning the condition of the system. The experts advised to make several changes in the system. (In case the Defendant challenges the findings contained in the expertise or upon request from the Arbitration Tribunal the Plaintiff will deliver a copy of the said expertise). According to Clause 18.3 of Agreement of 30th July 1999 the Plaintiff has notified the Defendant of failure to maintain the emission parameters during the 36 months emission warranty period and prepared a list of flaws based on the findings of the experts, the removal of which required several actions to be taken. Evidence: Plaintiff’s letter of 14th January 2003. In the letter mentioned above the Plaintiff has also called upon the Defendant to undertake action aimed at removal of the system’s flaws within four days, as provided in Clause 18.3 of the Agreement of 30th July 1999. The Defendant failed to undertake any actual actions aimed at removal of the flaws, neither in the set period of time, nor later. In such a situation the Plaintiff undertook actions to which it was authorised by the power of Clause 18.3 of the Agreement of 30th July 1999, that is to remove the flaws or order the removal of the flaws and charge the expenses to the Defendant. The costs hitherto incurred by the Plaintiff in connection with removal of the flaws of the system are the subject of this request for arbitration. The Plaintiff ordered a check of technical condition of one of the pumps allegedly repaired by the Defendant. It showed that not only had the pump not been repaired, but also that its condition was a threat to the functioning of the system. Evidence: Expertise done by K. of 20.10.2003 and many others attached to the request for arbitration. Therefore it was necessary to immediately repair all six pumps which the Plaintiff ordered to K. company which cooperated with the deliverer of the pumps – VOS Process System. Costs of the repairs specified above constitute an essential part of the costs incurred hitherto. Active coal has also been exchanged and used-up coal has been utilized, where the costs of performance of the last described action should be charged to the Defendant by the power of Clause 2.1 item i) of the Agreement of 30th July 1999. Evidence: Clause 2.1 item i) (page 9 of the Agreement) and statement of costs with copies of invoices. Due to the fact that the system still did not reach the agreed emission parameters, the Plaintiff ordered the performance of reparatory works to Jordan company which performed a diagnose of technical condition of the system and agreed to prepare a technical project as well as perform assembly works together with delivery of necessary equipment, as provided in the agreement of 3rd Nov.2003.  The cost incurred in connection with this agreement only equals USD 25.000  (98.360 PLN), and further costs of execution of the agreement may not exceed the equivalence of USD 700.000. The Plaintiff hereby applies for awarding first of these amounts, and reserves the right to alter the claim in case of the final amount set in a sum of more than USD 25.000. Negotiations with J. company continue at the date of placing this claim. Evidence: Agreement with J. of 3.11.2003. The Plaintiff has also abided its contractual obligation to make all the efforts in order to peacefully resolve the disputes, as provided in Clause 30.1 and 30.2 of the Agreement. The Plaintiff and the Defendant have agreed that on 17th May 2002 r. direct informal negotiations should begin. Despite abundant exchange of correspondence the disputable matters have not been amicably resolved, therefore the Plaintiff informed the Defendant in a letter of 29th of January 2003 that it regarded the 30 day negotiation period provided in Clause 30.2 of the Agreement to be exhausted. Evidence: copy of a note from the meeting of the parties on 17.05.2002 and Plaintiff’s letter of 29.01.2003. On 30th April 2004 the Plaintiff sent to the Defendant a final call for payment of the amount of PLN 552.399,40, comprising the costs hitherto incurred by the Plaintiff in connection with removal of the flaws of the hydrocarbon fumes recovery system. The Defendant confirmed that it received the call for payment in a letter of 7th May 2004, in which it refused to pay the demanded amount. Evidence: call for payment of 30.04.2004 , Defendant’s letter of 7.05.2004. Taking into account the above facts, the Plaintiff is fully authorised to make a request to solve the dispute to International Court of Arbitration in Gdynia. Therefore, I hereby apply as stated at the beginning of this request of arbitration. 

 

Appendices:

  1. Abstract from KRS
  2. Agreement of 30th July 1999
  3.  Report from the measurement of hydrocarbons concentration at inlet and  outlet of VRU during loading of H. K. tanker
  4. Report from the measurement of hydrocarbons concentration at inlet anoutlet of VRU during loading of m/t N.W. tanker on 25 and 26th August 2002
  5. Plaintiff’s letter of 14th January 2003
  6. Expertise done by K. of 20.10.2003 and many others attached to the request for arbitration
  7.  Statement of costs with copies of invoices
  8.  Agreement with Jordan of 3.11.2003
  9. Copy of a note from the meeting of the parties on 17.05.2002
  10. Plaintiff’s letter of 29.01.2003
  11.  Call for payment of 30.04.2004
  12. Defendant’s letter of 7.05.2004