Contractual advice 

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Contractual Advice

Graphene™ staff played since 1990 on the side of the Vendors' of Machinery in the Technical Design and in the Field Engineering Departments, designing before, later installing and commissioning Electronic Inspectors and related Conveyors.  As an effect, matured a solid and effective contractual knowledge.  Know-how built over:

  • exam of the tenders proposed by huge and well-known Beverage Multinational Groups for < 200 Packaging Lines in the World;
  • studies of new Bottling Lines’ Projects: what is really possible to fulfill of what the actual or potential Customer asks for new Projects of Bottling Lines;
  • participation to ~150 acceptance tests of new Bottling Lines, in tens of countries;
  • assistance to the tender negotiations with the Vendors of electronic inspection systems;
  • definition of the Technical Guarantees to be satisfied by Vendors, for the inspection of the different kinds of packagings (glass or PET bottles, cases, crates, PET caps, preforms, etc.)
  • assessment and mitigation of the potential risks implicit in the different technologies offered by different Vendors of electronic inspection systems.





 NESTLE’ WATERS Product Technology Center, responsible for the group's Research and Development.  Nestle' is one of the Fortune 500 Companies consulting us over Electronic Inspectors' Technology, Technical Guarantees, Test Methods and Minimum Requirements which have to be contractually reflected (  Nestle’ Waters/2013)












We are in the optimal conditions to advice all involved parts (Vendors, OEMs and Bottling Companies) about Food and Beverage Packaging Line or single Machine's tenders or Contracts.  We master the compilation of: 

  • Minimum Requirements for all existing kinds of Electronic Inspectors and related Conveyors;
  • Qualitative and Production Technical Guarantees the Vendor or OEM has to provide to the Bottler yet in the Contract;
  • listings of electronic inspectors’ technological safety systems which have to be fulfilled by Vendor or OEM side to comply with Food and Beverage Safety Norms;
  • methods and step-by-step procedures to test, during a specific acceptance test, the Guarantees have been really fulfilled.

Example

How many Operators in a Packaging Line ?

How many Operators in the Food and Beverage packaging Line ?

If you operate in hundredths of Packaging Lines in decades of Countries you know the answer to this question ranges from, ...exactly the Contractual one, til ...five times more.  There are Beverage Bottling Lines where the Vendor guaranteed in the Contract total 7 Operators and where, in the reality, yet in the days of the Quality and Production Acceptance Tests, the real number of Operators attending the Line was 24.  And, one year later, it grew to 32.   The Packaging Manager was compelled to these decisions. Compelled by the painful, negative effect of several superposed causes:






  1. impossibility for the Packaging Line, evident yet during its Acceptance Tests, to fulfill simultaneously Production Efficiency and Quality indexes, say the main guarantees of the Contract; 
  2. rapidly decreasing Production and Quality indexes;
  3. progressively decreasing efficiency of the Production staff;
  4. …..several other causes, which summed gives a small loss…..

The effect 3. above can be addressed by the Packaging Manager because it has internal causes.  But, effects 1. and 2. have external causes: they are out of his reach.  A practical example zooming the figure below, where it is possible to see what is attracting the attention of the Operator.  He is comparing the level of the beer in two, still non labelled bottles then in the Conveyors and Pasteurizer sections between Filler Machine and Labeller.  He is using the level of one of them as fiducial sample.   

    What is attracting the Operator's attention ?  He is comparing the level of the beer in two still non labelled bottles, using one as fiducial sample.  3 bottles yet sorted, one missing 1/3 of the content, the other with a blue rather than gold colour cap answer the question (   Tom Parker/OneRedEye/ SABMiller Plc Brewery, Nigeria/2013)














Also, it is visible that he has removed out of the flow, keeping on the side tray, two bottles:

  • one missing 1/3 of the beer content, 
  • the other with a blue rather than golden cap. 

Now, ask yourself simply...  

why has an Operator to stay there 8 hours/day, along the (10 - 15) years of Packaging Line's average lifetime, when these bottles were yet inspected for the fill level after the Filler Machine ?  

In the majority of the cases, the answer is truly due to design incoherences of the Line Layout, namely a too short section of the Conveyor out feeding the Filler Machine.  Also, frequent occurrences of human-factor of the Full Bottle Inspector, causing Quality pitfalls: bold installation and/or commissioning errors of the Full Bottle Inspector.  Imagine to try to measure caps’ inclination or filling level with an inclined Inspector and bottles over an inclined conveyor...     And also the most basic question:  

                        why has that Operator be there ?


Compare the number of Operators of the Food and Beverage Bottling Line with the number which appears, as a Contractually binding Guarantee, in the Contract signed by the Vendor.   Was there, in the Pasteurizer infeed any contractual Operator ?   Yet 18 years ago we were intervening in glass non returnable Bottling Lines:

  • producing 66000 bph at the Filler;

 Kronenbourg® (Carlsberg Group) is a French Company whose Staff's technical skills, as seen by the point of view of Us, Vendors or Experts of Bottling Machinery, are truly exceptional.  We have direct personal repeated memories about their intelligence and capabilities.  They may be synthesized in a few digits: stellar Quality levels like 94 % Line production efficiency measured at the Palletiser Machine, simultaneously maintained by tens of huge Glass Returnable Bottling Lines (66000 bph) with only 2 Operators each one Line 

with stellar Quality levels (Kronenbourg® at Obernai, Strasbourg-zone, France, Carlsberg® Group);

  • with 94 % Line production efficiency measured at the Palletiser Machine;
  • where each Production shift had only 2 Operators; one caring the dry-area of the Packing Machineries, the other attending the Filler-Labeller area of the Line Layout.  

That is the way and there it was made simultaneously possible in tens of Lines. Obviously, thanks to Kronenbourg®’s Management technical skills and deep insights about their contractual rights.   Into the Lines' Layouts designs are hidden and included in the price, expensive incoherences.  Part of these are not an effect of incompetence. They are the prospected Vendor’s intentionally hided efforts to let the minimum Production and Quality Levels requested by the potential Buyer be apparently met for the minimum possible price.  Apparently met, in the Food and Beverage packaging lines field is most easily and frequently accomplished acknowledging the simultaneous requirements of Production + Quality, when offering, in the reality only one of the other. Maximum Production efficiency killing the Quality levels is the standard trick.    The Bottlers not knowing where are, in what machinery they have to be expected these promises impossible to fulfill, shall pay for the consequences. Those who will pay along decades with lower than paid for Contractual Quality and Production efficiencies, an unexpectedly high Total Cost of Ownership (TCO).  


   (Click-to-enlarge)  Electronic Inspectors’ technologies feature high levels of intrinsic complexity


Perspective Does Matter

Perspective does matter.  The Bottler knowing 'too-much', is that one which shall:

  • buy only what he really needs to reach its Production and Quality goals, spending the minimum to obtain the maximum;
  • minimize losses-on-production and maximise inspection quality along the lifetime of the Bottling Line;
  • obtain installation and commissioning activities truly aligned with established Good-Practices and international Norms: electronic inspectors functioning in 100 % of the fuctions and inspections they’ve been paid for.  Something only a control obtained by Third Parties, acting on behalf of the Bottler, can certify.  Self-evident the unavoidable conflict of interests in the words of who, presented you and dressed-to-look-like-the-Vendor, shall always obviously guarantee You ...that’s alright !   Could he say you a Truth that, frequently nor he knows because of missing trainings…?  
  • obtain exacly what is guaranteed in the Contract.

A Bottler owning or however controlling the expertise, the know-how in the subject of Electronic Inspectors, can be easily capable to demonstrate Vendors’ partial or full Legal Liability also in the worst thinkable scenarios. Thinkably, the cases of consequential damages to the health of several final Customers, implying a class-action against the Bottler, after an ample diffusion of the events by mean of the Media.   There are cases where the Vendor remained fully aware along months about the massive introduction in the Market and sale to final Customers, of glass bottles with glass fragments into. This due to extremely frequent (1/2000 bottles) bottles’ bursts into the Filler machine.  Bottles non-rejected by the inspections of the Electronic Inspector in the outfeed of the Filler, simply because its own Staff had not the necessary know-how to setup the Bottle-Burst functions of the Inspector in the Filler. Worse, those staff nor had the capability to setup an Inspector with inspections-in-the-Machine: this last, a Technology conceptually too complex for the five technicians sent, one after the other, to that Bottling Factory.

Also Consequential Legal Liabilities, related to what it could happen to final Customers if an Electronic Inspector is not fully or partially accomplishing its functions in a Bottling Line, are in the common contracts attributed to the Bottler. A very important case, considering the amount of violations of the Food and Beverage Safety rules, with products filled without any preservative (  Science Photo Library)


No insurance coverage

No one in the World, physical person or Private Company, Bottlers included, can insure his or its activity, to cover damages deriving by the activities, if:

  • were violated Security Norms, nationally enforced, referred to Machinery, Devices and their operation by Staff;
  • divergences by the Norms are not declared to the Underwriter before the Contract is signed, so to allow a different evaluation of the premium to pay.

Also, it is well known how the Insured has to present immediately to the Underwriter whatever newly available information he could access about the Risk implied by the Object (e.g., an Activity) of the Policy.   In these cases, the Underwriter has always granted the right to:

  • present to the Insured a new value for the premium, referred to the new levels of Risk;

or:

  • to recede by the Contract.

It is always excluded the Insured “Good Faith” in the case he was not aware of the hidden vices of his Machinery, Devices and Process when their negative effects arose.  

Why excluded ?  Because not to be aware of the misrespect by Third Parties of Norms in the reality of the Machinery, Devices and Services we use in our activities, is never considered  by the Underwriters as avidence of Good Faith, freeing coverage and payments. Also, these are not excessive requestes by Underwriters.   Who could otherwise sign any Contract for something Defined (the premium), in exchange for the acquisition of Undefined Risks with Someone else (the Insured), if these rules were not existing ?   It is only later, after a successive (and, completely separate) claim that the Bottler could be given the possibility to demonstrate its Good Faith, but only with respect to the Third Party which provided Machinery, Devices and Services.   Months after the 'incident' it is really too late, in this Media-dominated World.  A World where informations about Food and Beverage contaminations or other kinds of injuries to persons, spread themselves in a few minutes.   That is why it is vital for Food and Beverage Companies a deep knowledge of the Electronic Inspection devices they use.  Devices representing the long-arm of the Bottling Factory Management, extended in the Bottling Line to enforce and make factual their Quality decisions. What before, to clear that this particular kind of Food and Beverage Optoelectronics know-how, has to:

  • exist before any Contract be signed;
  • be introduced into the Contract.

If you think one or more of the scenarios we presented above, are yet those where you and your Company feel to be, feel free to contact us.  We’ll solve rapidly your problem.


  (Click-to-enlarge)   Three malpositioned caps, so open the bottle may easily leak, not closing to atmospheric agents and contaminants a PET bottle may be regognised in the image shot immediately before a Packer Machine.  Juice filled in an Aseptic environment, because of the fact that no preservative has been added.   Example of one of the worse events which may affect a sensitive beverages’ productive process: the bottle content, innocent in the Beverage Packaging Line may become extremely dangerous after multiplicatioon of agents yet present. Or, infeeding through an aperture “looking them” an open door because of their intrinsic microscopic dimensions. 

Consequential Legal Liabilities

Front of several Vendors of Electronic Inspectors today existing in the World, unfortunately for Food and Beverage Companies, over 80 % of the field is occupied by the sales’ shares of just 5 Vendors.   This is a problem for the Bottlers, the mother of all todays’ problems.  But, it is a rich opportunity for those few Vendors acting in a near-monopolium regime.   Bottlers really take all possible cares, charging on themselves all related costs, to assure Food and Beverage Safety and the Quality of their products. But, examining vast amounts of Contracts related to the acquisition of Bottling Lines including Electronic Inspectors, and particularly the Legal Liabilities’ chapters related to the use of the machinery bought by Bottlers, it is easy to discover that apart a few exceptions, this does not happen really on the other side.


“Consequential Legal Liabilities, for what it could happen if an

 Electronic Inspector is only partially accomplishing its functions in a Bottling Line, are in the common Contracts attributed to the Bottler”


Consequential Legal Liabilities, for what it could happen if a Bottling Control or Electronic Inspector is not fully or it is only partially accomplishing its functions in a Bottling Line, are in the common Contracts attributed to the Bottler side.  On the others side long series of disclaimers, whose goal is the limitation of the liability.   Thinking to the some cases of Food and Beverage safety violations:

  • glass bottles semi-filled with cocktail of water and Caustic Soda at a 3.8 % concentration by the Bottle Washer machine, not duly rejected by the Empty Bottle Inspector, where bold programming errors of its Shifting-Register are, in the reality, hidden;
  • fragments of glass mixed to the Beverage in glass returnable or non-returnable bottles; 
  • mineral oils in the glass bottles;
  • contaminated PET bottles, massively introduced in the Market also if passed thru some of the most expensive Electronic Inspectors; 

considering what choices they exist to defend the Bottler, the main answer is: know-how.  Cases like those cited above, are going on exactly in this moment wherever in the world, but much more frequently where Optoelectronics’ know-how is absent.  Absent or simply insufficient with respect to the complexity existing on the other side: the Electronic Inspectors’ side.   It is that, and only that complexity, impeding to Bottlers a full exercise of their legal and contractual rights with respect to the Vendors.  Just an effect of the the fact that Packager’s know-how is mainly concentrated in the different phases of the Production and Marketing of the packaged containers of Food and Beverage products.

 (Click-to-enlarge)  Monopoliums are the equivalent of tunnels. “Tunnels created to create artificial value”.  Goods and services’ pricings artificially kept the highest


No coverage for Product Legal Liability












...I sell you the Bottling Line for the same amount of bottles-per-hour my Competitors offered you to produce, with a 15 % lower price.   

…6 months later it’ll be up to you to discover what Qualitative factors shall not be as you expected, and we’ll discuss…”












No Insurance Company shall indemnise the Bottler for the negative consequences of the proved Product Liability if it derives by Design-, Installation- or Commissioning-flaws in Machinery or Equipment he acquired and accepted.    The Product Liability Insurances apply to the incidents whose Root Cause (or, Causes) is not systemic.   As an example, systemic like the Design-flaws, cracks in the Architecture of the productive process.   Also, if Machinery or an Equipment was declared “commissioned” by the OEM or Vendor, and later it get out the commissioning was partial, and favouring negative consequences on the Bottler’s Production, one more time the Insurance cannot be invoked by the Bottler.

Why not ?  

To let sensitive beverages, without preservatives, be sold to final Customers knowing that the containers with open closures (surely, at varying degrees of Effects, contaminated) could be drinked, is a deliberate Projectual and Commercial choice.   

It is something permanent and not a rare Event deriving by a technical or human-fault.   It can be insured, but for a completely different and much higher premium.  It’s very difficult to insure notoriously highly risky Designs.    To make an example: the premium which has to be paid to the Insurer if a ship is loaded with ammonia or chlorine at high density, depleted-Uranium, explosive ammunitions or gas, is completely different than that of the same ship loaded with wheat or bottles.   A Bottler could discover, when it’s too late, that he never disclosed to the Insurer the full entity of the Risk.   Risk true economic dimension.   Exactly what the Insurer is looking for when trying to figure out if that Contract had been honoured from the Insured side, when this asks for an indeminization after an incident.   Most frequently, who on the Bottler’s side signs the Product Liability Insurance is an Advocate.    A person kept uninformed by Others more prone to the technological side, to the Risks (Company Confidential Informations, surely unpublished) they personally are charging to their Company.   There are reasons why we frequently stress in this website that the Ethic-factor is decisive.   He/she'll accept in sincere good faith an amount of clausules set by the Insurance Company.    Accepting such a limitation of responsibility of the Insurance Company he’d have never accepted, if should have been completely, thoroughly informed about some “sale-oriented malpractices” of his/her own Company's Management.   In other terms, a nonexisting umbrella following the downscaling of the price of a Beverage Bottling Line, hiding a bold cut on the future Products’ Quality.   A trick whose rationale is alike: “...I sell you the Bottling Line for the same amount of bottles-per-hour my Competitors offered you to produce, with a 15 % lower price.   …6 months later it’ll be up to you to discover what Qualitative factors shall not be as you expected, and we’ll discuss…”.    The Insurance Companies know far too well this reality, by the records of many millions of Incidents where the Insured did not fully and quantitatively specified them the Risks.   Then, they make wide use of contractual clausules preventing their losses caused by these eventualities.   On the opposite, the Product Liability Insurance covering the Machinery or Equipment of the OEM or Vendor, refers itself to objects of high value, and could possibly be used by the OEM or Vendor to decrease their exposure toward the Bottler after an incident whose burden of consequences fell in the start, as unavoidable, over the Bottler.


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