A company has to pay for using the berth, even if the parties have not signed an agreement. In addition, the case examines the content of the passenger transportation service and the procedure for determining the amount of the cost of payment for services if there are no approved tariffs for them.

The m/v “Guipanis”, owned by LLC Sakhmorflot, carried out regular passenger voyages on the route Petropalovsk-Kamchatsky – Severo-Kurilsk – Petropavlovsk-Kamchatsky. At the same time, it was moored at the passenger berth No. 5, which belongs to the Petropavlovsk branch of FGBU “Rosmorport”. Rosmorport forwarded the draft contract for servicing ships to Sakhmorflot, but the latter refused to sign. As a result, Rosmorport went to court with a claim to recover unjust enrichment. The first instance court ruled in favor of the claimant, while the appellate court upheld the decision.

Sakhmorflot raised the following arguments:

1. The claimant did not provide evidence of the provision of other services, except for the provision of mooring at berth No. 5.

The argument was rejected with reference to certificates of the ship’s mooring at the berth, certificates of the number of passengers and replacement crew transported on the ship, which, in the court’s opinion, confirm the fact of rendering services to the respondent in mooring and providing a sea terminal for serving passengers.

2. Payment for passenger services must be done directly by passengers.

The argument was rejected with reference to the Rules of Carriage of Passengers by Sea, approved by order of the Ministry of Transport dated June 17, 2015 No. 190, according to which, under the contract of carriage of passengers by sea, the carrier undertakes to provide, among other things, the following services: ensuring boarding (disembarking) on the ship, delivering passengers to the ship’s anchorage if necessary (clause 22 of the Rules of Carriage of Passengers by Sea). Since the infrastructure of the passenger terminal for the safe embarkation (disembarkation) of passengers on (from) the vessel, conducting inspection procedures and other types of control is provided to the carrier, it is the carrier who is obliged to pay, among other things, the cost of the services rendered for the provision of the passenger terminal for servicing passengers.

3. The disputed services were rendered in the absence of tariffs approved by the state regulatory body.

The court indicated that the absence of the established tariffs during the declared payment period does not relieve the respondent from fulfilling his obligations to pay for the services rendered to him. A different approach contradicts the principle of retribution, hinders the achievement of the goal of entrepreneurial activity enshrined in Art. 2 of the Civil Code of the Russian Federation. In this regard, the courts applied an expert opinion carried out in the framework of case No. A59- 6154/2018. ■