A seller agreed to ship 10,000 tons of potatoes FOB Tacoma, Washington, to a buyer in Japan. The buyer designated the SS Russet to take delivery at Pier 7 in Tacoma. On the agreed-upon date for delivery, the seller delivered the potatoes to Pier 7, but the ship was not at the pier. Because another ship using the pier was slow in loading, the SS Russet had to anchor at a mooring buoy in the harbor and the seller had to arrange for a lighter to transport the potatoes in containers to the ship. The lighter tied up alongside the SS Russet, and a cable from the ship’s boom was attached to the first container. As the container began to cross the ship’s rail, the cable snapped. The container then fell on the rail, teetered and finally crashed down the side of the ship, causing the lighter to capsize. All of the potatoes was dumped into the sea. The buyer now sues the seller for failure to make delivery.
Question: Is the seller liable under INCOTERMS 2010? You are lawyer for buyer. Please write a memo and defend buyer orally.
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