ABSTRACT
We turn now to the district court’s award of damages following the bench trial. [. . .] The CISG provides: Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract. CISG Art. 74. This provision is “designed to place the aggrieved party in as good a position as if the other party had properly performed the contract.” [. . .] Rotorex argues that Delchi is not entitled to lost profits because it was able to maintain inventory levels of Ariele air conditioning units in excess of the maximum number of possible lost sales. In Rotorex’s view, therefore, there was no actual shortfall of Ariele units available for sale because of Rotorex’s delivery of nonconforming compressors. Rotorex’s argument goes as follows. The end of the air conditioner selling season is August 1. If one totals the number of units available to Delchi from March to August 1, the sum is enough to fill all sales. We may assume that the evidence in the record supports the factual premise. Nevertheless, the argument is fallacious. Because of Rotorex’s breach, Delchi had to shut down its manufacturing operation for a few days in May, and the date on which particular units were available for sale was substantially delayed. For example, units available in late July could not be used to meet orders in the spring. As a result, Delchi lost sales in the spring and early summer. We therefore conclude that the district court’s findings regarding lost sales are not clearly erroneous. A detailed discussion of the precise number of lost sales is unnecessary because the district court’s findings were, if anything, conservative. Rotorex contends, in the alternative, that the district court improperly awarded lost profits for unfilled orders from Delchi affiliates in Europe and from sales agents within Italy. We disagree. The CISG requires that damages be limited by the familiar principle of
foreseeability established in Hadley v. Baxendale, 156 ER 145 (1854). CISG Art. 74. However, it was objectively foreseeable that Delchi would take orders for Ariele sales based on the number of compressors it had ordered and expected to have ready for the season. The district court was entitled to rely upon the documents and testimony regarding these lost sales and was well within its authority in deciding which orders were proven with sufficient certainty. Rotorex also challenges the district court’s exclusion of fixed costs and depreciation from the manufacturing cost used to calculate lost profits. The trial judge calculated lost profits by subtracting by subtracting the 478,783 lire ‘manufacturing cost’ – the total variable cost – of an Ariele unit from the 654,644 lire average sale price. The CISG does not explicitly state whether only variable expenses, or both fixed and variable expenses, should be subtracted from sales revenue in calculating lost profits. However, courts generally do not include fixed costs in the calculation of lost profits. [. . .] This is, of course, because the fixed costs would have been encountered whether or not the breach occurred. In the absence of a specific provision in the CISG for calculating lost profits, the district court was correct to use the standard formula employed by most American courts and to deduct only variable costs from sales revenue to arrive at a figure for lost profits. In its cross-appeal, Delchi challenges the district court’s denial of various consequential and incidental damages, including reimbursement for: (i) shipping, customs, and incidentals relating to the first and second shipments – rejected and returned – of Rotorex compressors; (ii) obsolete insulation materials and tubing purchased for use only with Rotorex compressors; (iii) obsolete tooling purchased exclusively for production of units with Rotorex compressors; and (iv) labor costs for the period of May 16-19, 1988, when the Delchi production line was idle due to a lack of compressors to install in Ariele air conditioning units. The district court denied damages for these items on the ground that they “are accounted for in Delchi’s recovery on its lost profits claim,” and, therefore, an award would constitute a double recovery for Delchi. We disagree. The Convention provides that a contract plaintiff may collect damages to compensate for the full loss. This includes, but is not limited to, lost profits, subject only to the familiar limitation that the breaching party must have foreseen, or should have foreseen, the loss as a probable consequence. CISG Art. 74; see Hadley v. Baxendale, supra. An award for lost profits will not compensate Delchi for the expenses in question. Delchi’s lost profits are determined by calculating the hypothetical revenues to be derived from unmade sales less the hypothetical variable costs that would have been, but were not, incurred. This figure, however, does not compensate for costs actually incurred that led to no sales. Thus, to award damages for costs actually incurred in no way creates a double recovery and instead furthers the purpose of giving the injured party damages “equal to the loss.” CISG Art. 74. The only remaining inquiries, therefore, are whether the expenses were reasonably foreseeable and legitimate incidental or consequential damages. [. . .]
(The Court of Appeals held that these expenses are legitimate consequential damages that in no way duplicate lost profits damages.)
[. . .]
CONCLUSION We affirm the award of damages. We reverse in part the denial of incidental and consequential damages. We remand for further proceedings in accord with this opinion. [. . .]
