Facts: on September 8, 2018, at section No. 2 of the seaport of Kavkaz, Krasnodar Territory of the Russian Federation, there was a sequential collision of the ship “Petra star” (home port of Panama) on the move, with four anchored ships, as a result of which all ships received hull damage: ship “Petra star” (dry cargo ship), ship “Svetoslava” (dry cargo ship), ship “INCE HAMBURG” (dry cargo ship), ship “CHALSI” (dry cargo ship), ship “VOLGO-BALT 213” (dry cargo ship). The non-self-propelled pontoon “BK-1” and the tugboat “Nord” also took part in the collision.

The plaintiff of PJSC IC Ukrainian Insurance Group – the insurer of the ship Svetoslava under an agreement with Binarta Corporation, charterer of the ship Svetoslava under a time charter agreement – filed a lawsuit against the operator of the ship Petra star LLC Linter and to the ship owner – the company Post Holding Assets Ltd. to recover jointly and severally losses in the amount of 50 383.92 Euro and 55 850 Ukrainian hryvnia. The claim was brought at the place where the losses were caused.

As a result of the aforementioned collision of the vessel “Petra star” with the vessel “Svetoslava”, the latter suffered damage, which necessitated the repair of the vessel to eliminate this damage. By way of subrogation, the claimant, as the insurer that paid the insurance indemnity, was transferred the rights to compensation for those collision losses that the claimant suffered in connection with the insured event and the payment of insurance indemnity to the ship owner of the m/v Svetoslava.

SPJSC Ingosstrakh (insurer of the vessel Petra star) was involved as a third party that does not declare independent claims regarding the subject of the dispute. The ship owner of the m/v “Svetoslava” – the company YUG-DNIPROTRANS LLC (Kherson) was not involved in the case.

Consolidation with case No. А32-37573/2020. Аt the same time, within the framework of another case No. А32-37573 / 2020, Post Holding Assets Ltd. (ship owner of m/v Petra Star) filed a claim for damages against the owners of the non-self-propelled pontoon BK-1 and the tug “Nord” – with LLC BK Shipping – USD 67,205.25 losses, 4,945,291.60 rubles, with EuroChem LLC – USD 67,205.25 losses, 4,945,291 , 60 rubles (after clarification of the claim). The ship owner of the m/v “Svetoslava” – the company YUG-DNIPROTRANS LLC (Kherson), is involved as a third party.

In the case, interim measures were taken in the form of prohibiting the defendant to alienate and burden the BK-1 vessel, to carry out registration actions for the transfer of ownership, encumbrances in the State Register of Shipping in relation to the BK-1 vessel.

Within the framework of both cases, the Post Holding Assets Ltd. company filed petitions to combine the cases into one proceeding.

The petitions were motivated by the fact that the cases were interconnected on the grounds of the claims and evidence presented, since four vessels participated in the collision of m/v Petra star and m/v Svetoslava: tug Nord, pontoon “BK-1”, m/v “Petra star”, m/v “Svetoslava”. The participants in both cases argue that each of the four ships was involved in the collision and that each of the four ships was partially responsible for the collision and, accordingly, each of the four shipowners of the ships participating in the collision. In both cases, the courts of first instance rejected the request.

An appeal was filed against the ruling on the refusal to join the cases in the second case (No. А32-37573/2020), which the plaintiff later refused, probably in connection with the decision on the first case before the court hearing in the court of appeal.

The appellate court, having considered the appeal against the refusal to join in the first case (No. A32-22897/2020), indicated that it does not see any competition between the claims stated in the cases, the consideration of which in isolation from each other may lead to the adoption of contradictory judicial acts.

Considering that both disputes are not related to each other on the subject and grounds of occurrence, the composition of the persons participating in the case is not identical, the consolidation of cases will not correspond to the goal of procedural economy and contribute to the correct and speedy consideration of the case. If the cases are combined into one proceeding, the arbitral tribunal will have to make a simultaneous decision on the claims of both plaintiffs against different defendants.

In the court of first instance, Post Holding Assets Ltd. and Ingosstrakh Insurance Company also filed petitions to suspend the proceedings pending the resolution of case No. А32-37573/2020, which were also refused.

Ruling of the court: the Commercial court of Krasnodar region satisfied the claims in full. From the conclusion of Rostransnadzor, whose competence is to establish the causes of the accident, it follows that the collision did not happen by accident, not due to force majeure, and that Rostransnadzor established the causes of the collision, indicating that the collision of the m/v “Petra star” with the ships “INCE HAMBURG”, ”Svetoslava”, “VOLGO-BALT 213”at anchor, it was the fault of the m/v “Petra star”.

Considering that the competent state body authorized to investigate accidents of sea vessels has established that there are no circumstances that, by virtue of the provisions of Part 1 of Art. 311 of the Merchant Shipping Code of the Russian Federation, may exclude the responsibility of the defendants and indicate the presence of the fault of their vessel in a collision (Art. 312 of the Merchant Shipping Code of the Russian Federation), the court established that the defendants are the persons responsible for the losses incurred by the insured m/v “Svetoslava” as a result of the collision with this vessel m/v “Petra star” 09/08/2018.

Commentary: This case is interesting from the point of view of resolving the issue of determining the circle of participants in the collision and establishing the guilt of the ships involved in the collision.

According to Art. 312 of the Merchant Shipping Code of the Russian Federation in the event that a collision of ships occurred due to the fault of one of the ships, the losses are borne by the one through whose fault the collision occurred. According to Part 1 of Art. 313 of the Merchant Shipping Code of the Russian Federation, in the event that a collision occurred due to the fault of two or more ships, liability is distributed in proportion to the degree of fault, and if it is impossible to establish the degree of fault, equally. According to Art. 315 of the Merchant Shipping Code of the Russian Federation none of the ships involved in the collision is presumed guilty, unless proven otherwise.

The position of the defendants in the present case was that in addition to the courts of the plaintiff and the defendant, the pontoon “BK-1” and the tug “Nord” also participated in the collision (the defendant filed an independent claim against the shipowners of these vessels in the framework of the case A32-37573/2020).

The court of first instance left the issue of the circle of participants in the collision without permission. At the same time, the court of first instance addresses this issue, indicating that before the collision with m/v “Svetoslava”, m/v “Petra Star” managed to collide with the ships “INCE HAMBURG” and “CHALSI”, but the respondent did not consider them to be participants in the collision

In this regard, the question remains open whether the court should determine the circle of participants in the collision when resolving such disputes. It seems that this is a circumstance that is significant for the case, since otherwise it is impossible to determine the degree of guilt of each vessel in the collision, and, accordingly, to determine responsibility. The company Post Holding Assets Ltd. filed a petition for the appointment of a forensic examination in the case with the raising of questions about the causes of the collision, the violations committed by each of the vessels (including the pontoon “BK-1” and the tug “Nord”), the degree of influence of the violations on the collision vessels m/v “Petra star” and m/v “Svetoslava”. The request was denied.

The present case is one of the examples where the courts attach key importance to the conclusions of Rostransnadzor, as evidence that has decisive weight for the resolution of the case. It follows from the text of the judicial act that the conclusion of Rostransnadzor is in fact the only evidence on which the court’s conclusion about the fault of the Petra star vessel in the collision is based.

The refusal to appoint a forensic examination was motivated by the fact that the establishment of the reasons for the collision of the courts is entrusted to Rostransnadzor, whose conclusion is admissible evidence, and the defendant’s reference to the presence of also the fault of m/v “Svetoslava” was rejected as contradicting the above conclusion.

As another reason, which the court motivated the refusal to satisfy the request for an expert examination, the fact that the shipowners of the pontoon “BK-1” and the tugboat “Nord” were not involved in the case, while these persons are defendants in the case, the petition for merger with which the defendant was refused. At the time of publication of the issue, the defendants and a third party filed appeals, which have not yet been accepted for proceedings. The decision in case No. А32-37573/2020 has not yet been adopted, the next hearing is scheduled for 15.02.2021. ■