Facts: LLC “P.TransKo” applied to the Commercial Court of the Vologda Region to PJSC “Severstal” to collect 463,962,755 rubles, 82 kopecks, of which 437,500,000 rubles made up the deadweight freight arrears.

According to the text of the decision, a freight agreement was concluded between the Claimant and the Respondent, according to which the charterer guaranteed the carrier a certain amount of cargo for the entire navigation period, evenly, for months of each navigation. Under the terms of the contract, in the event that the guaranteed volume is not provided, the charterer has undertaken to pay the shipowner for dead freight: the difference between the guaranteed volume of transportation and the freight rates actually provided at the freight rates agreed in clause 5 of the supplementary agreement.

According to the Claimant, in 2018 the Defendant did not provide a guaranteed volume of cargo, therefore, LLC “P.Transko” was charged with dead freight and interest for the use of other people’s funds. At the same time, the Claimant claims that the ships for loading were submitted within the framework of the concluded agreement.

Ruling of the court: the Сommercial court of the Vologda Region satisfied the claims of LLC “P.TransKo” in part, collecting from PJSC “Severstal” 15 511 983 rubles. 85 kopecks, of which: 14 643 125 rubles. dead freight arrears.

The court concluded that the Claimant had abused his rights and behaved in bad faith, aimed at receiving “double payment for not rendered services”. In confirmation of the fulfillment of obligations to submit courts under the agreement, the Claimant presented to the court 120 notices of readiness, submitted to the Respondent. The court found only 4 out of 120 really confirming the fulfillment of the Claimant’s obligations. On the basis of these four Notices, the Court decided to partially satisfy the claims.

Commentary: the decision in the case is of interest from the point of view of a detailed analysis by the court of the reasons for which the court came to the conclusion about the plaintiff’s unfair behavior and partial satisfaction of the claim.

In particular, the court concluded that the notices of readiness provided by the Claimant were only formal in nature. At the same time, the court established that the Respondent had provided the Claimant with a notice in advance (in November 2017) that no applications for the carriage of goods in 2018 would be submitted. At the same time, the plaintiff, already in April 2018, entered into a new agreement with another company for the carriage of goods, but made calls to the port of Cherepovets to submit formal notices of readiness under an agreement with PJSC Severstal. At the same time, the court indicated that the vessels stood for some time in the port of Cherepovets and then left for other ports for loading under the new contract of the Claimant.

In the decision, the court noted that when entering the port of Cherepovets, only in 7 cases out of 140 was the purpose indicated – for loading, in the rest the goals were not related to loading. In addition, the loading schedule under the new contract was in clear contradiction with the planned provision of services under the contract with PJSC Severstal; according to separate notes, the ships left the port of Cherepovets before the lay time began.

It is impossible not to note the detailed analysis by the court of the issue of abuse of rights in the recovery of dead freight by the Claimant. The court rightly noted that dead freight is not a measure of responsibility, nor a form of compensation for damages (the Respondent argued for a reduction in the amount under the forfeit rules, and also referred to the rules on loss of profits, trying to transfer the subject of proof in cases of damages to the present dispute). The court rejected these arguments.

Indeed, the so-called dead freight can hardly be recognized as a measure of liability, since it is agreed by the parties not as liability for breaches of the obligation, but in fact as remuneration for the provision of the ship’s cargo capacity. In this case, the party that has not provided the guaranteed volume is not considered to have failed to fulfill the obligation. Dead freight is indeed aimed at compensating the shipowner for lost profits, but is exclusively of a contractual nature, the Claimant is not obliged to prove the same circumstances as in cases of recovery of lost profits (wrongful act, loss, causation).

At the same time, since dead freight is intended to compensate for lost profits caused by incomplete use of the vessel, the existence of two parallel mutually exclusive obligations of the shipowner to provide the vessel should exclude the payment of dead freight, otherwise, the Claimant receives unjust enrichment, or, as the court of first instance indicated, double payment.

At the time of publication of the issue, the case is pending appeal. The next hearing is scheduled for March. ■