An East Coast lawyer contacted me the other day seeking help for his client in writing an outsourcing contract with a Chinese manufacturer. We talked for maybe ten minutes regarding these contracts and then he told me he had called me because of what I had to say about always requiring the Chinese manufacturer to agree to buy product liability insurance. I paused for an uncomfortably long time thinking about how I could not believe I had ever said this.
Finally, I asked him what he was talking about. He then said “in the Washington Post article.” I then said, “oh,” and did a very quick Google search and came up with a 2007 article I had never before seen, Liability Lawyers Struggle to Pierce Chinese Curtain. That article has me down for the following:
Smaller importers are increasingly writing liability insurance into their contracts with Chinese manufacturers and paying third parties to test product quality, said Daniel Harris, a Seattle-based international lawyer who writes contracts for American companies outsourcing to China.
I explained how this was the first I had heard of the article and that I had either misspoken or been misquoted. I have noticed a trend towards increased product quality checking even among smaller U.S. importers of product from China and it is I do advocate that our clients purchase product liability insurance to protect themselves from bad product. I am of the view that importers of product from China need to consider themselves product manufacturers because that is how American juries will view them if there are no other defendants around to pay damages incurred by the injured plaintiff before them.
But, I have never advocated writing into the OEM (original equipment manufacturing) contract with Chinese manufacturers the requirement that the Chinese manufacturer secure its own product liability insurance. Our international manufacturing lawyers do sometimes put that provision in contracts with Chinese manufacturers, but we always make clear that our clients should not rely on this provision unless they first conduct due diligence to confirm that their Chinese manufacturer actually took out a policy that will actually protect the US company should something go wrong.
It is simply safer for Western companies to get and pay for their own insurance, rather than relying on their Chinese manufacturers to get insurance to cover any product liability. Since the Chinese company will charge the Western company more for product if it has to buy insurance, the Western company’s securing its own insurance should end up costing little to no more than if the Chinese company had purchased it.
Glad I have this forum to clarify something I may or may not have said two years ago.