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Rather, ATA submitted that it had worked under the supervision
of the Engineer
appointed by APC. As a result, the applicable provision of the Civil Code was Article
789, which was designed to cater for the situation where the “supervisors” were not the
“designers”. Under Article 789, each of the contractor and the designer would be liable
towards APC “only for his share of the damage”. In other words,
to use the terms of
Article 789, ATA would be liable only for “defects in execution”, if any.
40.
On this issue, the FIDIC Tribunal concluded as follows:
Having carefully considered the text of Article 788 and the submissions made by
the Parties in this connection, the Arbitrators do not agree with [APC’s]
interpretation of Article 788 because the Article clearly and plainly states that it
applies to a fact situation where the supervision is conducted
by the engineer who
had designed the structure.
41.
The FIDIC Tribunal then opined that Article 788 applied if the “designer” (
i.e.
Gibb) was the “supervisor”, whereas Article 789 applied in cases where the “supervisor”
was an “engineer” other than the “designer”, or the “owner” (
i.e. APC) itself. The FIDIC
Tribunal concluded as follows:
Having carefully considered the above arguments on the various applicable
Articles of the Code to this case, the Tribunal finds that the decision must hinge
on whether or not “Supervision” was part of the duties of the designer.
42.
In respect of issue No. 2
43.
In respect of
, the FIDIC Tribunal found that the supervision under the
Contract was the sole responsibility of the engineer appointed by APC.
issue No. 3, the FIDIC Tribunal found that “breach of contract could
not be attributed to [ATA] in this case as matters were not under their control”.
As noted
earlier, APC’s claims accordingly failed, and ATA’s counterclaim was maintained in
