ARBITRATION COURT OF THE MOSCOW DISTRICT UPHELD THE DECREE OF THE NINTH ARBITRATION COURT OF APPEAL AND THE DECISION OF MOSCOW ARBITRATION COURT ON FULL SATISFACTION OF THE CLAIMS OF OUR PRINCIPAL IN THE AMOUNT OF 15 000 000 RUBLES.

The Company “1” (hereinafter the Plaintiff, the Principal) appealed to MCBA “Bureau of Lawyers “De jure” to provide them with legal assistance in protection of their violated rights having explained that between them and the Company “2” (hereinafter — the Defendant, Contractor, Forwarder, Carrier) a public offer Agreement for the provision of delivery services was concluded, by which the Defendant undertook to deliver cargo consisting of turbochargers from  St.Petersburg to Novy Urengoy.

The Consignee of the goods was the Company “3”; the release of the goods was carried out through the Defendant. Accepted for delivery cargo in total amount of 15 million rubles was lost.

Lawyers of MCBA “Bureau of Lawyers “De jure” got acquainted in detail with all the documents of this case, prepared and filed a statement of claim to Moscow Arbitration Court for damages from the loss of cargo.

Upon review of the case new circumstances for our Principal were found out: cargo was subsequently transferred by the Defendant to company “4” for delivery to the Consignee, but the cargo was lost by this Company.

In this connection, the Defendant referred to its release from liability in terms of damages, as well as the lack of confirmation that it was this cargo that was accepted by him for delivery due to the lack of internal recalculation.

Also, the Defendant believed that due to the lack of Declaration of value of the cargo, it is subject to compensation on the basis of the terms of the public offer Agreement (extremely disadvantageous for our Principal), and not on the basis of the amount of actually lost cargo.

Based on the foregoing, the Defendant requested court to refuse to satisfy the claim in full.

We have proved that in accordance with the terms of the public offer Agreement, the Defendant has the right, without the consent of the Plaintiff, to involve third parties in the execution of this Agreement, while remaining responsible to the customer for the full execution of this agreement.

An agreement to eliminate the Forwarder’s property liability or to reduce its size is void in accordance with part 2 of article 11 of Federal Law from 30.06.2003 number 87-FЗ (edition from 06/07/2016) “On freight forwarding activities.”

Damage caused during transportation of cargo or baggage shall be compensated by the Carrier in case of loss or shortage of cargo or baggage – in the amount of the cost of lost or missing cargo or baggage.

Thus, lawyers of MCBA “Bureau of Lawyers “De jure” proved that the professional Carrier who failed to fulfill or improperly performed an obligation while being the entity carrying out business activities bears civil liability regardless of the presence or absence of fault and he can be released from it only if there are circumstances that he could not prevent and the elimination of which did not depend on him. The carrier’s fault in case of damage during the transportation process is assumed, the carrier has to prove the opposite.

We also proved that the Defendant did not provide evidence in the case file that he had taken all necessary measures to ensure the safety of the cargo, and that it was lost due to unavoidable circumstances that he could not have foreseen.

Since the Defendant accepted the goods for transportation without declaring value, the Freight Forwarder was responsible for the safety of the cargo in accordance with subparagraph 2 of paragraph 1 of article 7 of Federal Law dated 30.06.2003 number 87-FЗ (edition from 06/07/2016) “On freight forwarding activities” in the amount of the actual (documented) value of the cargo or its missing part.

Upon review of the present case, Moscow Arbitration Court completely agreed with our legal position and satisfied the statement of claim of our Principal in full, having recovered from the company “2” the amount of damage 15 million rubles.

Having not agreed with the accepted judicial act, the Defendand initiated a procedure of challenge of this judicial act in two higher judicial instances.

Lawyers of MCBA “Bureau of Lawyers “De jure” thoroughly studied the arguments of the appeal and cassation complaints, prepared and filed motivated responses to them at the Ninth Arbitration Court of Appeal and Arbitration Court of Moscow District.

As a result of checking the legality of the decision of the court of the first instance, higher courts agreed with our arguments set forth in reasoned reviews of the Defendant’s complaints and made reasoned Decisions on leaving the Moscow Arbitration Court’s Decision unchanged, and the Defendant’s complaint unsatisfied.

Our reviews were fully taken into account by the courts of the first, appeal and cassation instances and formed the basis of these acts.

PS: Along with compensation for damage, the courts of the first and appeal instances satisfied our demand for the recovery of the Defendant’s interest  for use of other people’s money under article 395 of the Civil Code of Russian Federation from the date of entry into force of the Court’s Decision in this case to the day of actual payment of the principal amount calculated at the Bank of Russia key rate under article  395 of the Civil Code of Russian Federation in the amount of the Principal debt, which entailed  voluntary execution of the Decision of Moscow Arbitration Court by the Defendant within 2 days after its entry into force.

Lawyer of MCBA “Bureau of Lawyers “De jure” J.M. Martynenko prepared the legal position on this case and represented the Defendant’s interests in the courts of the first, appellate and cassation instances