The case deals with the issue of the admissibility of submitting the provided by the contract notifications (notices, applications) by phone, the determination of the moment of acceptance of the vessel for towing, the possibility or even the obligation of unilateral termination of the contract by the contractor in case of impossibility or inexpediency of its execution, as well as the issue of recognizing the transaction as bonded.

A contract for the provision of towing services was concluded between Far Eastern Sea Transportation LLC (Contractor) and Vostok-Mor-Stroy LLC (Customer), according to which the Contractor undertook, at the Customer’s request, to carry out sea towing of the Chernomorets-16 floating crane at route: Petropavlovsk-Kamchatsky – Vladivostok, using the sea tug boat “Neptunia”.

The tug arrived in Petropavlovsk-Kamchatsky on 04.11.2019 and was connected to the floating crane on 05.11.2019. Due to unfavorable weather conditions, the master of Petropavlovsk-Kamchatsky was not given permission to leave the port of the caravan until 12.12.2019. On 12.12.2019 the parties signed an agreement to terminate the contract.

According to the contract the advance payment in the amount of 7,000,000 rubles made by the Customer is used to cover the costs of the Contractor for the mobilization of the tug and its transfer from Vladivostok to Petropavlovsk-Kamchatsky. The Customer shall additionally pay the contractor 10,500,000 rubles for 35 days of idle time for the tug in Petropavlovsk-Kamchatsky, and also pay for demobilization of the tug in Vladivostok in the amount of 5,400,000 rubles. In connection with non-payment of the indicated amounts, the Contractor applied to the court. The Customer filed a counterclaim to invalidate the contract as an enslaving deal. The court of first instance considered the case in favor of the Customer, while the appellate court upheld the decision.

The Customer referred to the following arguments:

1. The parties did not stipulate the specific terms of the towing; moreover, the respondent did not send a notification to the claimant. It is the date and time specified in the Notice that should be considered the beginning of the provision of services.

The court indicated that on the basis of the actual relations between the parties, it was allowed to submit applications by phone. It is indicated that such kind of agreements were repeatedly concluded between the parties, and the Customer did not submit written applications for them, while the payment for services was made even in the absence of a notification.

2. The Contractor did not accept the floating crane for towing. The argument was rejected with reference to an entry from the logbook on the acceptance of the floating crane on 05.11.2019, as well as to the Certificate of Survey of the Ship, issued by the Russian Maritime Register of Shipping, in connection with the respondent’s application to determine the possibility of a one-time towing along the route Petropavlovsk-Kamchatsky – Vladivostok, in the conclusion of which it is said that the vessel may be allowed a one-time towing along the route with a period from 06.11.2019 to 06.12.2019, and for a towing certificate dated 06.11.2019, issued on the basis of the Act.

3. Anchorage of the tug in anticipation of favorable weather conditions had to take place not at the place of acceptance of the object, but at the places of shelter in accordance with the list of places of shelter and ports of shelters at the transition from Petropavlovsk-Kamchatsky to Vladivostok dated 06.11.2019, developed by the Contractor, and since Petropavlovsk-Kamchatsky is not on this list, it cannot be considered as a place of shelter.

This argument was based on a specific point 3.3 of the Contract:

“In the ports... (Vladivostok – Petropavlovsk-Kamchatsky), the Customer is additionally given a maximum total of 24 hours of free practice for the delivery / acceptance of his facility. All the waiting time of the Vessel at the ports of departure and destination, over the specified time, for reasons beyond the control of the Contractor, including the vessel’s downtime caused by the fault of the Customer, as well as all the time the Caravan waits for favorable weather in the sheltered places (forced idle time of the Vessel in the parking lot), additionally paid by the Customer at an hourly rate of 25,000 rubles”.

The court considered that “based on the literal interpretation of the terms of the contract, the Customer pays for the demurrage of the vessel over 24 hours for reasons beyond the control of the Contractor, both in the ports of exit and destination, and in places of shelter”.

The court’s conclusion appears to be controversial. Text of clause 3.3 of the Contract provides for two reasons for payment of downtime – this is an idle time in ports for more than 24 hours while waiting for the delivery / acceptance of the object and the waiting time for favorable weather in sheltered places. Therefore, the conclusion of the court that in this case there is a downtime of more than 24 hours, it seems unclear. As with the loading of cargo in contracts of carriage, the charterer pays for downtime in excess of the allotted time before loading. After loading, the count of lay or counter-lay time is terminated.

But the court also presented an additional argument to reject the Customer’s argument. Since, in accordance with clause 11 of the Order of the Mi nistry of Transport of Russia dated January 19, 2015 No. 4 “On the Approval of Mandatory Regulations in the Seaport of Petropavlovsk-Kamchatsky”, the seaport is a place of refuge for ships in stormy weather, the transition of the vessel to another shelter was not advisable.

4. The plaintiff was aware of the impossibility of towing from the second half of November 2019, during which he continued to stand in Petropavlovsk-Kamchatsky and did not take any action on a possible change in the transition plan.

The court indicated that the Contract does not give the Contractor the right to make an independent decision to stop waiting for favorable weather conditions or to towing the vessel with deviations from the design of its towing, and the customer did not make such decisions, despite the fact that he had full information about the weather conditions. ■