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Agency asks for compensation for overlooked mistake in translation
Thread poster: Sonja Tomaskovic
Sonja Tomaskovic  Identity Verified
Germany
Local time: 01:37
English to German
+ ...
Sep 3, 2004

Today I received an email from an agency for which I have proofread a couple of pharmaceutical documents. The client has now found several mistakes in the translations, in spite of the fact that I (and several other translators in other languages) verified the documents. The mistake I have overlooked involved wrong labeling, i.e. a wrong product name appeared. Obviously the translator had used a CAT tool and had simply reused a previously translated sentence, probably without taking further notice that there was no 100% match.

The agency announced that they are going to charge me with £315.33 because they had to pay for the reprint of a couple of datasheets. In their email, they are explaining that *only* proofreaders that were involved in this job are going to have to pay this amount (each one, by the way).

At the moment I am rather frustrated. I am aware that I made a mistake, but then I consider this amount far too high. And I wonder why they do not charge the translators for this. It seems that translators can make any mistake in the world, and a proofreader does not have that right. From my own experience I know that’s not true. When I make a mistake as a translator, clients usually blame me and not the proofreader. Here it seems to be completely different.

Considered that the translators in question probably used a CAT tool (these were highly repetitive texts, hence the mistake I made; I probably confused the product names because almost all documents had the same content), and CAT tools alert a translator when a previously translated segment is not a 100% match, I think that the translators too are liable.

I have pointed this out to the agency too and am awaiting their response. I am particularly curious to hear whether they are going to charge the translators or not.

I'd like to hear your comments on this.

Sonja


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Rosa Maria Duenas Rios  Identity Verified
Local time: 19:37
Can they prove it was YOUR mistake? Get insurance! Sep 3, 2004

Hi Sonia,
I am sorry to read about your problem. The first question that came to my mind is: Can they actually prove that the mistake was yours? From what you write, it is not clear whether it was made by the translator or any other of the proofreaders. I believe that in order to get money from you, they would first have to prove beyond reasonable doubt in some court (I have no idea how the German system works) that the mistake was your responsibility.

For this cases, I have a "malpractice" insurance which I bought through the professional associations I am affiliated to (OTTIAQ in Canada, and ATA in the US). I know it is a bit late now, but you could try and find if something similar is available in the EU, and get some coverage. I am sure there must be something. This way, you will feel more comfortable about the fact that we are translators, but NOT perfect, and that everybody makes mistakes sometimes. Regards!

[Edited at 2004-09-03 13:07]


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Pablo Roufogalis
Colombia
Local time: 18:37
English to Spanish
Shudder! Sep 3, 2004

Hello Sonja.

I shudder when I read of situations such as this.

Will there come a time where translators/agencies will need to have liability insurance?

I find it fair that the copyproofers take the blame 100%. BY definition, they are the ones that should guaranteee that the translation is 100% correct.

IMHO.


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Wenke Geddert  Identity Verified
United Kingdom
Local time: 00:37
Member (2004)
English to German
+ ...
Involve the ATA... Sep 3, 2004

I noticed from your profile that you are a member of the ATA. Do they have an arbitration process, which kicks in if there is a dispute that cannot be amicably resolved? I would approach them for advice in the first place.

My personal opinion is that the agency should cover the costs with their indemnity insurance (that's the difference between working for an agency as opposed to a direct client). But that could be open for interpretation / discussion.

Consult ATA would be my suggestion!

Good luck!

Wenke


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Marijke Singer  Identity Verified
United Kingdom
Local time: 00:37
Dutch to English
+ ...
Source Sep 3, 2004

Did you have the source too? Or just the translation? If you only looked at the translation then there is no way you could have known that a name was wrong (unless the client had provided a list of their products with specific instructions). I am currently doing a project in which I translate and another person proofreads who only looks at the translation. When she is finished, I get the file and check whether the meaning of the original text has not been changed.

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Sonja Tomaskovic  Identity Verified
Germany
Local time: 01:37
English to German
+ ...
TOPIC STARTER
Further comments Sep 3, 2004

Thank you all for your comments.

@Rosa Maria: Well, that's a good point. I am sure I overlooked that mistake, i.e. I have not realized that the translator had not changed the product name into the right one. In this case, the translator made a mistake and I overlooked it.

@Marijke: Yes, I had the source files. The job involved to verify that the translation was accurate, and I had to proofread against the source document. In respect to this, I am actually not saying that this is not my mistake. What I want to point out here is whether it is me who is liable or both the translator and me?

In the meantime, the agency has responded outlining why they are only blaming the proofreaders:
The reason why we are asking for compensation only to the
proofreaders is that it is the proofreader's main task to double check that everything is correct in the translation paying special attention to product names, codes, etc. I don't think CAT tools are designed to spot this kind of inaccuracies.


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Wenke Geddert  Identity Verified
United Kingdom
Local time: 00:37
Member (2004)
English to German
+ ...
Clarification Sep 3, 2004

Sonja,

Was this at any point explicitely outlined in a prior agreement you entered, contract you signed, specific instructions given by the agency?

"The reason why we are asking for compensation only to the
proofreaders is that it is the proofreader's main task to double check that everything is correct in the translation paying special attention to product names, codes, etc. (...)"

Easy to add responsibilities and potential liabilities at the end...





[Edited at 2004-09-03 14:22]


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Alison Schwitzgebel
France
Local time: 01:37
Member (2002)
German to English
+ ...
Under German law Sep 3, 2004

Hi Sonja!

Bear with me on this one, but here's the (German) legal low down (as I understand it, but then I'm not a lawyer). I'm sorry for large chunks of this being in German, but I couldn't find a good online translation of the new version of these sections of the BGB.

§ 631
(1) Durch den Werkvertrag wird der Unternehmer zur Herstellung des versprochenen Werkes, der Besteller zur Entrichtung der vereinbarten Vergütung verpflichtet.

(2) Gegenstand des Werkvertrags kann sowohl die Herstellung oder Veränderung einer Sache als ein anderer durch Arbeit oder Dienstleistung herbeizuführender Erfolg sein.

i.e., you had to proof the job to make sure that it was correct compared to the original.

§ 632
(1) Eine Vergütung gilt als stillschweigend vereinbart, wenn die Herstellung des Werkes den Umständen nach nur gegen eine Vergütung zu erwarten ist.

(2) Ist die Höhe der Vergütung nicht bestimmt, so ist bei dem Bestehen einer Taxe die taxmäßige Vergütung, in Ermangelung einer Taxe die übliche Vergütung als vereinbart anzusehen.

i.e., you arranged to be paid for the work

§ 633
Sach- und Rechtsmangel
(1) Der Unternehmer hat dem Besteller das Werk frei von Sach- und Rechtsmängeln zu verschaffen.

(2) Das Werk ist frei von Sachmängeln, wenn es die vereinbarte Beschaffenheit hat. Soweit die Beschaffenheit nicht vereinbart ist, ist das Werk frei von Sachmängeln,

1. wenn es sich für die nach dem Vertrag vorausgesetzte, sonst
2. für die gewöhnliche Verwendung eignet und eine Beschaffenheit aufweist, die bei Werken der gleichen Art üblich ist und die der Besteller nach der Art des Werkes erwarten kann.


Einem Sachmangel steht es gleich, wenn der Unternehmer ein anderes als das bestellte Werk oder das Werk in zu geringer Menge herstellt.

(3) Das Werk ist frei von Rechtsmängeln, wenn Dritte in Bezug auf das Werk keine oder nur die im Vertrag übernommenen Rechte gegen den Besteller geltend machen können.

i.e., the proofed translation had to fulfill its purpose, otherwise it was faulty

§ 634
Rechte des Bestellers bei Mängeln
Ist das Werk mangelhaft, kann der Besteller, wenn die Voraussetzungen der folgenden Vorschriften vorliegen und soweit nicht ein anderes bestimmt ist,

1. nach § 635 Nacherfüllung verlangen,
2. nach § 637 den Mangel selbst beseitigen und Ersatz der erforderlichen Aufwendungen verlangen,
3. nach den §§ 636, 323 und 326 Abs. 5 von dem Vertrag zurücktreten oder nach § 638 die Vergütung mindern und
4. nach den §§ 636, 280, 281, 283 und 311a Schadensersatz oder nach § 284 Ersatz vergeblicher Aufwendungen verlangen.

These steps (1-4) have to be followed in that order. First they have to ask you to fix it. If you don't do that within the specified period, then they can fix it themselves and demand that you pay them the cost of doing so. Only after they've done that can they revoke the contract or reduce the price that they were going to pay you.

And then - but only then, can they hit you up for compensation.

I have a note in my copy of the BGB from when I had to study law that "Nachbesserung (mit Frist) hat Vorrang)".

So, the long and the short of it is: they can't just turn round and say that you did a lousy job and you have to pay them compensation. They have to give you a chance to fix the work first.

Of course taking this approach may cost you the customer, but then that's a decision you have to take.

I hope this gives you some ammunition to fight your case with.


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Sonja Tomaskovic  Identity Verified
Germany
Local time: 01:37
English to German
+ ...
TOPIC STARTER
Thanks Sep 3, 2004

First of all, thank you very much, Alison.

I have already responded to the agency, that I find it rather disturbing that as a proofreader I am solely liable while as a translator I can make mistakes and have someone else pay for it.
Then I asked them for a written explanation/confirmation that only proofreaders are held responsible for mistakes overlooked by them and made by the translator. And they haven't replied so far.

@Wenke: I am currently not sure what was agreed beforehand, but I will check the contract I have signed with them. Thanks for pointing that out.

Kindly,

Sonja


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Jabberwock  Identity Verified
Poland
Local time: 01:37
Member (2004)
English to Polish
Disclaimer Sep 3, 2004

One of the agencies I work with adds the following disclaimer to their business communication. It seems to be a good idea... If you plan to use it, please don't use the exact wording, as I have not contacted them for permission to use it publicly...

Disclaimer of Warranty

XXX's liability for errors and omissions is restricted to correcting the work we have performed, free of charge. Our liability shall in no case exceed the value of the work performed. All liability for indirect, incidental, or consequential damage is excluded. Nevertheless the greatest care is undertaken to ensure the accuracy of our translations.


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Mathew Robinson
United Kingdom
Local time: 00:37
English
try to negotiate Sep 3, 2004

From what I understand, the compensation is not for the mistake, but for the subsequent printing. A 'correction' would not reimburse the cost of the wasted printing.

Something to take into consideration is that contracts are usually governed by the laws of the country in which the contractor is resident (I assume the agency is in the UK because of the compensation quoted is in Sterling) so checking English law would be more advisable.

Try the ITI in London or the ATC to see if they have any recommended procedures for situations like this.

Do you know who the other proof readers are? It would be helpful to you if you could discuss their feelings/intentions with them.

I suspect your only hope will be to negotiate your liability with the agency and see if they are willing to involve their professional indemnity insurers.


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Stefan Keller  Identity Verified
Germany
Local time: 01:37
English to German
Proofreader vs. Translator Sep 3, 2004

Hi Sonja,

First of all let me say that it's a shame how this agency behaves.
I can't give you any legal advice, I'm afraid. So far, I haven't been in any comparable situation, at least not going as far as anyone claiming damages.

However, I was a proofreader/reviewer for many years when I used to work for a big localization vendor. And from this experience, I can tell you that it's always the proofreader who got the blame, once he returned "final" translations that afterwards turned out to be not quite as final (i.e. had mistakes in them).

In your case, I understand that your client hired (and paid for) proofreaders. So, common sense would suggest that it was their (the proofreaders') job to find an correct mistakes done by the translator. I don't really see how any of the proofreaders could now turn the tables on the translators, sorry.
Proofreaders can at any time reject translations, send them back to the translators and have them re-worked. But once they passed the review stage, I would think the proofreader is responsible.

Best regards,
Stefan


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Tina Vonhof  Identity Verified
Canada
Local time: 17:37
Member (2006)
Dutch to English
+ ...
Ask for copy of invoice Sep 3, 2004

I do believe that as proofreader you, and not the translator, is responsible for the accuracy of the translation. But the amount seems awfully high. Are you sure this is the amount per proofreader and not the total?

I would ask the company for a copy of the invoice for the additional printing and I would want to know how many proofreaders are involved in paying it. I think they owe you at least that much.

Then you will also have the documentation to discuss the matter with the ATA or other organization, which is a good idea.


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xxxPRen  Identity Verified
Local time: 19:37
French to English
+ ...
Agency responsibility Sep 4, 2004

I wonder at what point does the agency accept responsibility. They deal directly with the end client, and they are responsible for providing them with an accurate translation. If they give the client something less than perfect, they incur the costs for rectifying the situation. Isn't that why they take the 50% markup? A reputable agency would cut its losses, pay for the reprinting, and not send you any more work. That's what I would do. If they want to claim "compensation" they should do so in a court of law. Don't pay the bill, but don't expect any further work from them.

Paula


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Heinrich Pesch  Identity Verified
Finland
Local time: 02:37
Member (2003)
Finnish to German
+ ...
Take liability insurance at once and take this case as a warning Sep 4, 2004

...and we all should!
Those 300 Pounds are a rather small sum. Think if it had been a large manual that had do be reprinted. In your case it was probably not possible to add an extra error-sheet that says; page 45 line 3 should read "...." instead of "...". So they had to reprint the whole thing.
Of course the agency has to rely on the proofreader, otherwise they would not need any proofreaders.
I have insurancy which covers up to 50 000 Euro. But if the insurance would really pay out is a question that awaits testing. Fortunately those technical manuals I usually translate are not so sensitive, because nobody ever reads them anyway (except the translator and the proofreader).


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