Facts: the plaintiff owned the fishing vessel MRTK-1078, moored at pier No. 6 of the RMT “Pionersky” (Kaliningrad region). Not far from MRTK-1078 was a floating crane “Hercules”.²

02.01.2019 in the Kaliningrad region there were unfavorable weather conditions: increased wind, storm, heavy rain, wave.

As a result of the impact of wind and waves on 02.01.2019, the mooring lines of the floating crane “Hercules” broke, which, drifting in the wind, fell on the plaintiff’s vessel, as a result of which the vessel received holes and sank in the waters of the Pioneer RMT of the Kaliningrad region.

Referring to the guilt of the defendants in the sinking of the ship, the plaintiff appealed to the commercial court with a claim to recover from them 10,145,000 rubles. losses. The cost of the ship, the disposal and the cost of the survey survey were taken into account.

The plaintiff insisted on the guilt of all defendants, substantiating the guilt of each as follows:

FSUE “National Fish Resources” – the owner of the mooring facilities – provided an improper berth for the mooring of the floating crane “Hercules”, thereby allowing its unsafe parking.

FGBI “Administration of Sea Ports of the Baltic Sea” – the captain of the seaport – did not take measures to ensure the safety of the parking of ships, did not transmit a message about the storm warning, did not issue appropriate instructions to the captains and owners of ships, berthing facilities.

LLC “Northern Marine Technologies” – the owner of the floating crane “Hercules” – did not provide mooring of its vessel in a way that allows the crane to avoid moving under the influence of wind and waves.

The defendants argued that unfavorable weather conditions (increased wind, storm, heavy rain, wave) should be qualified as force majeure, which caused the collision of the fishing vessel and the floating crane.

Ruling of the court: the claims were denied in full.

The Court noted that the Kaliningrad seaport is not a place of refuge for ships in stormy weather. In addition, vessels that are in the seaport on a long-term berth must have plans of measures to ensure the safety of the vessel during the long-term berth, approved by the shipowner and agreed with the captain of the seaport. The Court also found it proved that the ships in the port had been notified in advance of an impending storm. The investigation of the evidence also took into account the behavior of LLC “Northern Marine Technologies” to ensure the safety of the floating crane “Hercules”. However, the court did not consider it proved that the owner of the fishing vessel had taken sufficient measures to ensure the safety of the vessel in a storm.

In relation to the defendant FSUE “National Fish Resources”, the court noted that the case submitted an act of inspection of the port hydraulic structure dated 20.12.2018, from which it follows that the berth is in working condition and its operation has been extended until 19.12.2023.

The following argument of the court is particularly interesting. So, it follows from the court’s decision that the investigation to establish the causes of the collision in the water area of the port was not conducted, so it is not possible to find anyone’s fault in the incident. At the same time, the Federal Service for Supervision of Transport is responsible for conducting the investigation.

Comment: it is impossible not to notice the complication of this case by the public element. The presence of representatives of state organizations among the defendants always adds a special shade to the judicial process. It is interesting that at first the court actively evaluates the evidence in the case, examines the presence or absence of guilt in the actions of the plaintiff and the defendants. But in the end, it concludes that it is impossible to establish the presence or absence of guilt, because the investigation of the causes of the collision was not conducted. In fact, this phrase raises a lot of problems. For example, the ratio of public procedures, failures of state bodies that have a procedural effect on economic entities. Is it necessary to conduct an investigation in order to prove it in the arbitration process? Probably, the lack of results of such an investigation does not prevent the court from examining other evidence. Otherwise, it contradicts the logic of the court’s decision, and the principle of procedural law on the evaluation of evidence.

Eventually, the court had the opportunity to point out the plaintiff’s failure to initiate an investigation, which fits into the logic of the burden of proof rule, to some extent. However, in this case, we can highlight another problem: the assignment of the plaintiff to the duty of “pushing” the authorized state bodies to form evidence.

Thus, in each such case, the plaintiff should prepare in advance the documents on which the legal position on the case will be based. Perhaps we should have considered involving representatives of the Federal Service for Transport Supervision as third parties. In this case, we see the equating of the burden of proof to the obligation of the party to facilitate the conduct of out-of-court procedures (in our case, the investigation of the collision). ■