Article
Foreword to the Review
This issue of the journal “Maritime Law” 3/2021 covers the calendar period April-May-June of 2021. We continue to track “maritime cases” considered by commercial courts and keep quarterly statistics. The most significant cases are reviewed and commented on in the journal.
Cases which were heard in the courts of first instance
According to the Archive of commercial courts judgments (ras.arbitr.ru), for period under review, there are 54 judgments of the first instance courts with the mention of “MSC RF” and 238 – at the request of the “Merchant Shipping Code of the Russian Federation”. Only 42 judicial acts of these can be attributed to the maritime law, the overwhelming number of which are the simplest debt recovery proceedings – freight, demurrage and interest, cases in which dispute boils down to resolving the issue of the claimant missing the prescriptive period. Sometimes there are also disputes on the salvage of vessels and other property, retention of cargo, disputes with the participation of insurance companies (on subrogation, or recovery of insurance compensation), compensation of damage caused to the environment and single cases on the other issues. On the request of the “captain of seaport / vessel”, in addition to those already indicated, in the Archive of commercial court judgments for the period under review, there are 18 more “maritime cases”, on the request “time charter”, there are 8 additional cases, on the request “bareboat charter”, there is not any unique judicial act, on the request “pilotage”, there are 2 maritime disputes. For other queries (for example, “maritime lien”, “maritime mediation”), relevant acts, in addition to those already considered, were not found. Therefore, according to the Archive of commercial courts judgments for April-June of 2021, the commercial courts of first instance considered 70 disputes under the maritime law.
| Appellate court | Categories of cases |
|---|---|
| The 5th Commercial court of appeal (hereinafter – the CCA) | – on fulfilment of the general charterparty (1); – on liability for violation of obligation under the time charter agreement (3); – on liability for violation of the bareboat charter obligation (1); – on liability for refusal to berth a vessel (1). |
| The 7th CCA | – on liability for violation of obligation under the time charter agreement (1). |
| The 9th CCA | – on liability for violation of the transshipment of cargo obligation (1); – on liability for violation of obligation under the time charter agreement (1) |
| The 13th CCA | – on liability for violation of the maritime agency obligation (1); – on liability for violation of obligation under the time charter agreement (2); – on payment for environmental reinstatement services in connection with the spill of bunker oil (1) |
| The 14th CCA | – on payment for environmental reinstatement services in connection with the spill of bunker oil (1); – on liability for violation of obligation under the time charter agreement (1) |
| The 15th CCA | – on liability for violation of the bareboat charter obligation (1); – on compensation of costs for the vessel parking during loading (1) |
| The 21st CCA | – on the collection of canal dues (1) |
Cases which were heard in the courts of appeal
In the period from April to June 2021, 82 cases were considered on the appellate instance, in which there was a reference to the Merchant Shipping Code of the Russian Federation. Only 21 of these cases were maritime. In other cases, the Marchant Shipping Code of the Russian Federation was mentioned either as an example of a law establishing a mandatory complaint procedure, or as a source of legal norms when considering administrative cases. Administrative cases, in which the Merchant Shipping Code of the Russian Federation is mentioned, are mainly devoted to illegal border crossing or customs violation when declaring goods at the border.
Cases which were heard in the cassation instance (courts of circuits)
25 cases in which the Merchant Shipping Code was mentioned were considered in the cassation instance for the period April-June 2021. The majority of cases were heard in the courts of the Far Eastern (11), North Caucasus (6) and Northwestern (5) circuits. 18 cases out of those 25 are devoted to civil law relations in this area. The remaining 7 cases deal with tax and administrative violations both on the part of individuals and on the part of the state – for example, in regard to challenging the results of an audit for issuing a license.
Case which was heard in the Supreme court of the Russian Federation
It is desirable to attribute to the “maritime” cases one more dispute – A40-127542/2020. In this case, the criterion for qualifying the dispute as “maritime” is that this case refers to the reversal of the award of the Maritime Arbitration Commission at the Chamber of Commerce and Industry of the Russian Federation No. 1/2019. It is obvious that the award of the MAC was rendered in regard to the “maritime dispute”, and the issue of its reversal by the state court is extremely interesting both from a practical point of view and from the point of view of the legal reasoning for its reversal.
| Cassation court | Categories of cases |
|---|---|
| The commercial court of the Far Eastern circuit | 9 cases in total: – on liability for violation of obligations under the time charter agreement (5); – on liability for violation of an obligation under forwarding contract (2); – on the payment of insurance compensation (1); – on unjustified enrichment for the parking of a vessel without a contract (1) |
| The commercial court of the Northwestern circuit | 4 cases in total: – on compensation for hard incurred in the field of maritime law (1); – on the compensation of the vessel’s downtime (2); – on liability for improper fulfilment of the towage contract (1) |
| The commercial court of the North Caucasus circuit | 4 cases in total: – on liability for breach of the services contract for loading, discharge and storage of cargo (1); – on liability for violation of obligations under the time charter agreement (2); – on liability for violation of obligations under the general charterparty (1) |
| The commercial court of the Central circuit | 1 case in total: – on liability for improper fulfilment of the obligation to transport passengers on the sea lane (1) |
By the ruling of the Supreme Court dated June 15, 2021, the transfer of the complaint for consideration at a court hearing of the Judicial Chamber of the Supreme Court for Economic Disputes was dismissed. The dispute regarding the reversal of the MAC award was put to rest. The positions of the Commercial court of Moscow and the Commercial Court of the Moscow Circuit, which are very controversial from the legal point of view, have been upheld.
Conclusion
As the result, in the second quarter of 2021, the commercial courts heard 109 “maritime” cases. 70 cases were considered by the courts of first instance, 21 – by the commercial courts of appeal, and 18 – by the cassation courts of the circuits. The bulk of the cases, as well as in the previous quarter, deal with the recovery of freight and demurrage, as well as liability under time charter and related contracts.
In this issue, the authors of the Review of Judicial Practice provide comments on the following cases, in which the most interesting issues of law are observed: No. A40-127542/2020, A73-7921/2020, A53-42452/2019, A24-3915/2020.
The review of the case No. A40-127542/2020 (on the reversal of the MAC award No. 1/2019) was prepared by Erokhova M. A., Ph. D., LL.M, associate Professor of the Department of Civil and Commercial Procedure of the Moscow School of Social and Economic Sciences.
The reviews of the cases No. A73-7921/2020, A24-3915/2020 were prepared by Putrya K.E., Ph.D., Partner of NAVICUS. LAW, Vice-President of the Maritime Law Association RUMLA, lecturer of the Department of Civil Law and Procedure of the HSE, St. Petersburg, LMAA Supporting Member.
The review of the case No. А53-42452/2019 was prepared by Matveev A.V. and Burdenko J.S.
Karimov B.R., Kobchenko I.S., Kharitonova E.V. also worked on the issue.