Memorandum
[For Claimant]
Eighth Annual
Willem C. VIS
International Commercial Arbitration Moot
Vienna, Austria
April 6 to April 12, 2001
Claimant
Sports and More Sports, Inc.
Vs
Vis Water Sports Co.
Respondent
Meijigakuin University
Faculty of Law
CLAIMANT ： Sports and More Sports
principal office：214 Commercial Ave. , Oceanside, Danubia
V.
RESPONDENT： Vis Water Sports
principal office： 395 Industrial Place, Capitol City, Equatoriana
§ Application of CISG
The CLAIMANT Sports and More Sports is a buyer of the present contract and it’s
place of business is located in Danubia. The RESPONDENT Vis Water Sports is a seller of the contract and it’s place
of business is located in Equatoriana. Both Danubia and Equatoriana are parties
to the United Nations Convention on Contracts
for the International Sale of Goods. The
present contract is a contract of sale of
goods between parties whose place of business
are in different states, Danubia and Equatoriana.
Therefore, according to article 1(1)(a) CISG of the Convention, the CISG is applicable
to the present contract.
§ Text (Outline of the case)
On 31 March 1999, Claimant received an announcement
from Respondent that they had opened a new
web site on the Internet. Negotiation were
commenced by an E-mail massage from Claimant
to Respondent on same day. After a short
exchange of E-mails, a contract for the purchase
of water sports equipment in the amount of
list price $100,000 FOB Capital City was
entered into on 31 March 1999. The goods were delivered to Claimant and
they saw that they would sell well in Danubia
and on 25 May 1999 Claimant increased the
size of its order by an additional list price
of $500,000, which was accepted by Respondent
on 28 May 1999. After the contract was concluded, Claimant sold and advertised the equipment. On 20 September 1999, however, Claimant received
a letter from Vis Fish Company stating that
the trademark “Vis” was registered in Danubia
by them. They also claimed that Claimant
was violating their trademark. On 4 October 1999, Claimant replied that
it was not violating the trademark since
it was inconceivable that anyone would confuse
the athletic equipment. Vis Fish Company
did not stop to claim to cease selling. Claimant,
therefore, accepted their claims and decided
to recall the equipment from the market in
Danubia. Legal counsel notified Claimant
that they were not violating the Vis Fish
Company trademark. Claimant wrote Respondent informing it of
the claim by Vis Fish Company and, since
it was not possible to continue selling the
Respondent equipment without risk of legal
action against it, Claimant was avoiding
the contract pursuant to Article 49 CISG. Claimant also referred to Articles 81 to 84 of the CISG and stated that it would propose just how
it would make restitution of the unsold equipment
and the amount of the price paid. Respondent
rejected all of the claims of Claimant because
there is no basis to avoid the contract.
Claimant proposed that if Respondent was
able to clarify that sale of its equipment
would not lead to litigation arising out
of claims of trademark infringement, Claimant
would reconsider its avoidance of the two
contracts. Respondent would not accept their
proposition. Claimant has withdrawn all of the unsold
equipment from its stores and is currently
storing it for the account of Respondent.
U. Introduction
ISSUE [1] : CLAIMANT was authorized to avoid
contract pursuant to Article 49 (1)(a)
ISSUE [2] : Effect of Avoiding Contract Under
Article 81, 84 CISG by CLAIMANT
ISSUE [3] : CLAIMANT was authorized to claim
damages pursuant to Article 45 CISG
ISSUE [4] : CLAIMANT claims for costs of
the arbitration , including legal costs ,
as provided in Article 31 of the ICC Arbitration
Rules
V. Claimant’s Request
Claimant claims payments from Respondent
as fellows:
(1) Additional storage and other expenses from
the date of submission of the Request for
Arbitration until mutual
restitution have been made.
(2) Interest on the purchase price from the date
paid by Claimant to the date reimbursement
of the price, which is made by Respondent
(3) The damages to the date paid by Respondent.
(4) Pursuant to Article 31 of the ICC Arbitration Rules, the costs of arbitration,
including legal costs.
W. ISSUE
ISSUE 1：CLAIMANT was authorized to avoid contract pursuant to Article 49 (1)(a)
1：It is a fundamental breach of contract for RESPONDENT to have
delivered the equipment.
A：RESPONDENT violated seller’s obligation, which is pursuant to Article 42 CISG
1． RESPONDENT delivered equipment, which are not free from any right or claim of third party based on intellectual property.
(1) CLAIMANT started to sell the equipment, which was purchased from RESPONDENT in Danubia. On 20 September 1999, CLAIMANT was claimed that “Vis” is registered in Danubia as a trademark by Vis Fish Company and applying the slogan “like a fish in water” to advertise the equipment is delict. [1] This letter states that the trademark of RESPONDENT equipment was already registered in Danubia by Vis Fish Company and the equipment, which was sold by CLAIMANT is violating trademark.
(2) CLAIMANT consulted Legal Counsel about the truth of violating trademark and the foundation of violating. As a result of investigation by Howard&Heward Advocates at the Court, it was verified that the Vis Fish Company has registered the “Vis” as a trademark for all water-related products in Danubia. It is obvious that RESPONDENT delivered the equipment to CLAIMANT, which had been registered by Vis Fish Company in Danubia. The equipment, which was delivered to CLAIMANT by RESPONDENT, is definitely not free from any right or claim of a third party based on other intellectual property. It comes hereby under violation of seller’s obligation as provided in Article 42 (1) CISG that RESPONDENT delivered equipment which are not free from any right or claim of third party based on intellectual property.
2．In the state where buyer will sell the goods,
seller was obligated to know the right that
the third party based on intellectual property.
The seller, RESPONDENT, was obligated to know the right that the third party based on intellectual property in the state where buyer will sell the goods. But RESPONDENT did not follow these steps. RESPONDENT had to grasp that the state where the equipment, which were purchased by Claimant, will be used. RESPONDENT also was obligated to deliver the goods, which are free from intellectual property.
The exhibit 1, the e-mail from Sport and More Sports to Vis Water sports on 31 March 1999. [2] And the exhibit 2, the e-mail from Vis Water sports to Sport and More Sports on 2 April 1999. [3] It was obvious from contents of the above two mails that CLAIMANT would sell the goods which were purchased from RESPONDENT in Danubia before the contract had been concluded. Although RESPONDENT had known that CLAIMANT purchased Vis line of water sports equipment for the purpose of selling in Danubia, RESPONDENT delivered them to CLAIMANT without investigating the possibility that the third party has the right based on intellectual property in Danubia. RESPONDENT failed to perform the seller’s obligation to investigate the possibility which was presupposed in Article 42(1) CISG. As a result RESSPONDENT delivered the goods which are not free from Vis Fish company’s right on intellectual property. RESPONDENT hereby is violating obligation of seller as provided Article 42 (1)(b) CISG.
Ｂ：The goods, which were delivered by RESPONDENT, caused the detriment.
1．CLAIMANT was claimed to cease selling by
Vis Fish Company.
On 20 September 1999, CLAIMANT was informed by Vis Fish Company that CLAIMANT was making use of same trademark, which had been registered by Vis Fish Company in Danubia. Since the goods of CLAIMANT are violating trademark, CLAIMANT was claimed to cease selling the goods. [4] On 1 October 1999, CLAIMANT rejected claims from Vis Fish Company. [5] Since Vis Fish Company engages only in the business of selling fish and other water-related food products, it is hardly possible that anyone would confuse the athletic equipment with their products.
2．Vis Fish Company notified CLAIMANT that they
would take legal action because of violating
trademark by CAIMANT.
On 15 October 1999, CLAIMANT received a further letter from the Vis Fish Company insisting that it cease selling the equipment. [6] In addition, it announced that CLAIMANT was threatened with legal action by Vis Fish Company if it failed to do so. [7] CLAIMANT were necessary to consulted “Legal counsel specializing in trademark and other intellectual property matters” whether Vis Fish Company had been really registered “Vis” as the trademark. They also consulted them if selling the Athletic equipment, which are definitely different from fish and the fish product, are corresponded to foundation of violating the trademark.
3．Legal Counsel, in their own judgment, told
CLAIMANT that the litigation would cause
a certain amount of disruption to CLAIMANT’S
business.
On 28 October 1999 CLAIMANT received the
response from Legal Counsel as follows;“In our opinion the claim of the Vis Fish
Company to trade mark infringement is unfounded.
We are of the opinion that any legal action
that they might bring would eventually be
dismissed. We must caution you, however,
that the Vis Fish Company has aggressively
defended its trademark in the past. The fact
that they have registered the trademark for
all water-related products is likely to mean
that the litigation will not be easy.” [8] As a result of investigation by Legal Counsel,
it was verified that Vis Fish Company has
registered the “Vis” name as a trademark
for all water-related products in Danubia
and Vis Fish Company engages only in the
business of selling fish and other water-related
food products. There was no evidence that
Vis Fish Company engages in any commercial
activities that are in any way related to
athletics or recreation. Since Vis Fish Company
has aggressively defended its trademark in
the past, even though CLAIMANT could avoid
the legal action, the litigation would cause
a certain amount of disruption to the business
of CLAIMANT. It is obvious that the litigation
against CLAIMANT would deprive plenty of
their time and would disrupt the business.
It is adequate that CLAIMANT avoid the litigation
giving thought to situation as has been noted
above. [9]
2：Pursuant to Article 43 (1), Claimant informed
RESPONDENT that goods of RESPONDENT have
violated the Vis Fish Company’s trademark
within a reasonable time.
1．CLAIMANT received the first letter from Vis
Fish Company. And CLAIMANT rejected the demand of Vis Fish
Company
On 20 September 1999 CLAIMANT received the first letter from Vis Fish Company stating that CLAIMANT was violating their trademark “Vis”. [10] And CLAIMANT noticed that “Vis” trademark had been registered in Danubia for the first time by this letter. CLAIMANT replied on 30 September 1999. [11] The athletics equipment of RESPONDENT, which is sold, is very different from the goods, which are dealt in by Vis Fish Company. Therefore, CLAIMANT was of the opinion that they did not violate their trademark. This is the reason why CLAIMANT rejected the demand of Vis Fish Company on 4 October 1999 and kept selling the equipment.
2． Since CLAIMANT was threatened of litigation
by Vis Fish Company, CLAIMANT consulted Legal
counsel on the matter.
On 15 October 1999, CLAIMANT received the further letter from Vis Fish Company. [12] Vis Fish Company consistently claims against CLAIMANT to cease selling the goods with “Vis” trademark in Danubia. Furthermore, Vis Fish Company claimed that if Sports and More Sports, Inc. would not cease advertising and selling goods within one week from receipt of this letter, they would take legal action. [13] It was necessary for CLAIMANT to see if the trademark “Vis” had been really registered in Danubia by Vis Fish Company and it would be violation of the trademark between athletic equipment and the fish. CLAIMANT consulted Legal Counsel about this matter.
3．On 28 October 1999 CLAIMANT received the
result of Legal Counsel’s investigation
with their judgment.
On 28 October 1999, CLAIMANT received the response from Howard&Heward Advocates at the Court. It verified that Vis Fish Company has registered the “Vis” name as a trademark for all water-related products in Danubia. [14] It is obvious from the response of Howard&Heward Advocates that Vis Fish Company engages only in the business of selling fish and there is no evidence that Vis Fish Company engages in any commercial activities that are any way related to athletics or recreation. But the opinion of Legal Counsel is “the Vis Fish Company has aggressively defended its trademark in the past. The fact that they registered the trademark for all water-related products is likely to mean that the litigation will not be easy. You could expect that even though, once successful, you could recover your legal costs from them, the litigation would cause a certain amount of disruption to your business”. [15] Since Vis Fish Company has aggressively defend its trademark in the past, even though CLAIMANT could avoid the legal action, the litigation would cause certain amount of disruption to the business of CLAIMANT. CLAIMANT has not arranged for the litigation and could not do so. Since CLAIMANT considered that situation, they decided to cease selling “ Vis Water Sports Equipment” and to withdraw the equipment from shops in Danubia.
4． CLAIMANT notified RESPONDENT on 3 November
1999.
On 28 October 1999 CLAIMANT received the
letter about the result of investigation
from Legal Counsel. [16] And on 3 November 1999, within one week
CLAIMANT wrote RESPONDENT informing the result
of investigation from Legal Counsel [17]
5．Conclusion of the issue 1−2
CLAIMANT hereby informed RESPONDENT on 3
November 1999 within one week from the day,
28 October 1999, when CLAIMANT received the
investigation and the judgment about violating
trademark from Legal Counsel pursuant to
Article 43 CISG.
3：Conclusion of Issue 1
The equipment, which was delivered to CLAIMANT
by RESPONDENT, is a breach of Article 42 (1) CISG. In other words, the equipment, which was delivered to CLAIMANT by RESPONDENT,
is the same as machinery with a functional
disorder. We also may say that it is the
same as machinery that cannot work. It is
impossible to satisfy the purpose of application
with functional disorder machinery. In a
word, CLAIMANT could not achieve the purpose
of making profit by selling the equipment
in Danubia because of the violating trademark
that was caused by RESPONDENT. It is unavoidable
that the litigation would take a significant
period of time and entails vast outlays.
RESPONDENT delivered the goods, which were
not free from any right or claim of a third
party based on intellectual property, CLAIMANT
could not sell them in Danubia without litigation.
We may judge that to deliver the goods, which
cannot satisfy the purpose of application
is a fundamental breach pursuant to Article 25 CISG. This fundamental breach can be a sufficient
foundation for the condition to avoid the
contract pursuant to Article 49 CISG as follows;“ failure by the seller to perform any of
him obligations under the contract amount
”.Since RESPONDENT received the declaration
of the contract avoidance in reasonable time
pursuant to Article 43 CISG, the contract was effectively avoided.
ISSUE 2：Effect of Avoiding Contract by CLAIMANT Under
Article 81, 84 CISG
1：The basis to acquire the right of avoiding
the contract.
CLAIMANT has a right of avoidance based on
the above reasons, ISSUE 1-1. Since the violation of the contract by RESPONDENT
is a fundamental breach as provided in Article 42 CISG. CLAIMANT has a right of avoidance pursuant
to Article 49 (1)(b) CISG.
２：The effect of avoiding the contract
A：The obligation of restitution
At the time of avoiding the contract, when
a party has performed the contract either
wholly or in part, the obligation of the
restoration is caused. That is to say, a
party who has performed the contract either
wholly or in part may claim restitution from
the other party of whatever the first party
has supplied or paid pursuant to Article 81 CISG.
Concrete contents of the restitution
As a result of the contract avoided, CLAIMANT
can claim restitution from RESPONDENT pursuant
to Article 81(2) CISG. CLAIMANT claims that RESPONDENT is required
to make restitution for the purpose of restoration.
At the same time, restitution by CLAIMANT
is made. CLAIMANT makes restitution of remaining
unsold goods of two-thirds and the purchase
price of goods of $184,000 that were sold
in the normal course of business prior to
the declaration of avoidance of the contact.
In which case, RESPONDENT is required to
make restitution of purchase price of goods
delivered of $552,000 under the contract.
CLAIMANT makes restitution of the price of
goods sold of one-thirds to RESPONDENT, and
RESPONDENT refunds all of the prices under
the contract to CLAIMANT. This is substantially
the same that RESPONDENT refunds the price
of two-thirds of purchase price. Therefore,
RESPONDENT sends the price of two-thirds
of purchase price to CLAIMANT coincide with
the delivery of two-third of the goods from
CLAIMANT to RESPONDENT comes that both parties
perform the obligation of restoration. Therefore,
net restitution of purchase price is $368,000.
CLAIMANT claims for the price of $368,000
to RESPONDENT.
B：The obligation of the payment for interest.
If the seller is bound to refund the price,
he must also pay interest on it, from the
date on which the price was paid pursuant
to Article 84(1) CISG.
The basis to claim for interest
Pursuant to contract CLAIMANT paid RESPONDENT $552,000 for purchase goods. If CLAIMANT did not avoid the contract, CLAIMANT could not profit by the usual business. This is a big damage for CLAIMANT.CLAIMANT makes restitution of purchase goods and profit for the purpose of restoration by the effect of avoidance. At the same time, CLAIMANT claims restitution of the purchase price $552,000. [*1]
3：The claims for the restitution and the interest
on the price by effect of avoiding
the contract under Article 81,84 CISG.
CLAIMANT claims RESPONDENT to pay total amount
$368,000 of thee restoration which is the
effect of avoiding the contract pursuant
to Article81.Pursuant to Article 84(1) CISG,
CLAIMANT claims RESPONDENT to pay the interest
on the purchase price from the date on when
the purchase price $552,000 was paid by CLAIMANT.
ISSUE 3：CLAIMANT was authorized to claim damages
pursuant to Article 45 CISG
１：The basis to acquire the right to claim the
damages, and the validity of these range.
At the time of conclusion of the contract
on 6 April 1999, RESPONDENT caused damages
from that RESPONDENT fails to perform any
of his obligations under the contract or
this convention.(ISSUE 1-1) CLAIMANT hereby
has the right to claim damages pursuant to
Article 45(1)(b).
２：Concrete contents of the damage.
A：Shipping costs of goods purchased.
RESPONDENT is liable for damages of shipping cost paid by CLAIMANT. CLAIMANT paid $7000(initial purchase No, 6910) and $26000(the second purchase order No, 6839) for shipping cost FOB Capitol City from Equatoriana to Danubia, for a total shipping cost of $33000. Each purchase order includes insurance cost. [19]
In both of mail on 2,April 1999[20] and 6,April 1999[21] from RESPONDENT, it is clear that contents of shipping cost is fixed by RESPONDENT. After Claimant’s payment of shipping cost, it became impossible for Claimant to sell the purchase goods of two-thirds, resulting from avoidance of the contract by CLAIMANT. As a result, shipping cost became damages. CLAIMANT hereby exercises the right to claim for damages pursuant to Article 74 CISG.
B：The cost of advertisement
“When the Vis Water Sports equipment was first
put on sale in the various Sports stores
throughout Danubia, a significant advertising
campaign was undertaken.”[22] We would like to make our initial purchase
larger than anticipated. [23] Your recent advertisements in all the major
newspapers in Danubia that feature Vis Water
Sports equipment and that use the slogan
゛like a fish in water゛have come to our attention. E-mail from Vis
Fish Company. [24] These facts lead to the advertisement for
the purpose of sales promotion. The advertising
had been based on the large scale to sell
the goods delivered under the contract. But CLAIMANT had lost the significance to
continue the advertisement for the sales
promotion, because of RESPONDANT’s fundamental
breach of contract. At the same time CLAIMANT hereby had lost
the possibility to gain interests on the
basis of the advertising, and the all of
the advertising costs until avoidance of
the contract came to damages. CLAIMANT may
claim for the advertising costs as the damages
of CLAIMANT caused by RESPONDENT, because
the advertising costs come under damages
as provided in Article 74 CISG.
C：General selling and administrative expenses
allocated to goods sold.
CLAIMANT can claim for the damages for that if the contract has not been concluded, general selling and administrative expenses allocated to goods sold would not be damages.
D：Storage and misc. expenses after avoidance
to date.
On 3 November 1999 [25], exercising the right of avoidance causes the obligation of storage for CLAIMANT pursuant to the first sentence of Article 86(1) CISG. At the same time CLAIMANT acquires the right of retention, exercise the right and start to store the goods pursuant to the second sentence of Article 86(1) CISG. On 10 November 1999 [26], the obligation of storage continues by rejection of avoiding the contract, and CLAIMANT continuously stores the goods by the right of retention. The obligation of the storage continues until CLAIMANT has been reimbursed his reasonable expenses by RESPONDENT. We state whether damage of the storage is rightful. On 3 November 1999. [27] CLAIMANT declared the intention of avoidance whether the avoidance of the contract is rejection as provided in Article 86(1) CISG. The goods, which were sold by RESPONDENT, are not free from any right or claim of a third party based on intellectual property, and it conforms to lack of the contract. To avoid the contract based on the lack of the contract is rejection of the goods. [*2] It is obvious that CLAIMANT declared the intention of avoidance from the e-mail on 3 Nov. 1999 [28] and it applies to “to exercise any right under the contract or this convention to reject them ” as provided in Article 86(1) CISG. The store of CLAIMANT, when CLAIMANT exercises the right of avoidance is a step to preserve the goods as are reasonable. After RESPONDENT rejected to avoid the contract. RESPONDENT could expect that CLAIMANT had to storage goods especially after RESPONDENT rejected to avoid the contract. Storage and misc. prices $ 4000 from 3 November 1999 to 6 June 2000 the date of submission of the request for arbitration and the prices of storage and the misc. from 6 June 2000 to the date of mutual restitution are reasonable costs. As stated above, the damage of storage is rightful as provided in Article 74 CISG.CLAIMANT hereby can claim $4000 of storage and misc. from 3.November 1999 [29] to 6.June 2000 [30] and from 6 June 2000 to the day of mutual restitution.
３：The claim of payments on the damage.
CLAIMANT claims for the costs of A: Shipping costs of goods purchased B: Advertising costs C: General selling and administrative expenses allocated to goods sold D: Storage and misc. expenses pursuant to Article 45(1)(b).
ISSUE 4：CLAIMANT claims for costs of the arbitration
, including legal costs , as provided in
Article 31 of the ICC Arbitration Rules
CLAIMANT claims for costs of arbitration,
including legal costs which are the reasonable
legal and other costs incurred by the parties
for the arbitration as provided in article 31 of the ICC Arbitration Rules.
Conclusion
The equipment, which was delivered to CLAIMANT by RESPONDENT, is a breach of Article 42(1) CISG. CLAIMANT hereby could not achieve the purpose of making profit by selling the equipment in Danubia because of the violating trademark that was caused by RESPONDENT. We may judge that to deliver the goods, which cannot satisfy the purpose of application is a fundamental breach as provided on Article 42(1) CISG. RESPONDENT received the declaration of avoiding the contract in reasonable time pursuant to Article CISG. As started above, CLAIMANT can avoid the contract effectively. CLAIMANT, therefore, can claim restitution from RESPONDENT pursuant to on Article 81(2) CISG. Consequently, CLAIMANT can claim for net restitution of purchase price, $368,000 in exchange for the delivery of two-third of the unsold goods from CLAIMANT to RESPONDENT. Pursuant to Article 81(2) CISG, CLAIMANT can also claim RESPONDENT to pay interest on the purchase price, $552,000. As started in ISSUE1, RESPONDENT violated seller’s obligation pursuant to Article 42 CISG, CLAIMANT can claim remedies of the right of avoidance and the right to claim compensation for the damages as to RESPONDENT pursuant to Article 45(1) CISG.
CLAIMANT, therefore, claim damages as follows:
@ Pursuant to Article 74 CISG Shipping cost of purchased goods: Since CLAIMANT could not purchase unsold goods after CLAIMANT paid the shipping cost as a result of avoiding the contract.
A Pursuant to Article 74 CISG Advertising cost: Since CLAIMANT could not continue to sell the goods , the advertisement for $600,000 worth on the goods is equal to the loss.
B General selling and administrative expenses allocated to goods sold: Since general selling and administrative expenses allocated to goods sold would not be damages if the contract has not been concluded.
C Storage and misc. expense after avoidance to date pursuant to Article 86(1) CISG, Since CLAIMANT makes restitution of the remaining unsold goods, CLAMANT is entitled to claim storage and misc. of goods after avoidance to date.
D Pursuant to Article 31 ICC, costs of arbitration, including legal costs.
§ Footnote
[*1] Peter Schlechtriem, Uniform Sales Law: The UN-Convention on Contracts for the International Sale of Goods. Vienna: Manz (1986)
[*2] Kazuaki Sono & Masafumi Yamate: International Commercial law
[1] Claimant’s Exhibit NO.7
[29] Claimant’s Exhibit NO.12
[2] Claimant’s Exhibit NO.1
[30] Claimant’s Exhibit NO.13
[3] Claimant’s Exhibit NO.2
[4] Claimant’s Exhibit NO.7
[5] Claimant’s Exhibit NO.8
[6] Claimant’s Exhibit NO.9
[7] Claimant’s Exhibit NO.9
[8] Claimant’s Exhibit NO.10
[9] Claimant’s Exhibit NO.12
[10] Claimant’s Exhibit NO.7
[11] Claimant’s Exhibit NO.8
[12] Claimant’s Exhibit NO.9
[13] Claimant’s Exhibit NO.9
[14] Claimant’s Exhibit NO.10
[15] Claimant’s Exhibit NO.10
[16] Claimant’s Exhibit NO.10
[17] Claimant’s Exhibit NO.12
[18] **********************
[19] Claimant’s Exhibit NO.6
[20] Claimant’s Exhibit NO.2
[21] Claimant’s Exhibit NO.4
[22] The Dispute no.5
[23] Claimant’s Exhibit NO.5
[24] Claimant’s Exhibit NO.9
[25] Claimant’s Exhibit NO.12
[26] Claimant’s Exhibit NO.13
[27] Claimant’s Exhibit NO.12
[28] Claimant’s Exhibit NO.12