This was a claim brought by Rosgosstrakh PJSIC (the claimant) against Severnoye Rechnoye Parokhodstvo JSC (the defendant) for damage caused to cargo during carriage from Arkhangelsk to Sabetta on the Arktika-1. The claimant was the insurer of the cargo in favour of MRTS JSC (the insured). The claimant compensated the insured and was thereby subrogated into the rights of the insured.

The agreement between the insured and the defendant of 19 February 2020 stipulated that the cargo may be transported on deck with the consent of, or by the order of the shipper. The bill of lading was issued on 1 March 2020. It included a deck cargo clause. It said that the cargo is 'loaded on deck with the consent/by the order of the shipper on its risk and responsibility'. On 5 March 2020, the defendant informed the insured that a part of the cargo was lost due to severe weather.

The Courts of first and appellate instances found in favour of the defendant in full. The judgments were based on the deck cargo clause, which excluded the defendant’s liability, and the fact that the cargo was damaged due to a sudden wave impact, which could not be predicted.

The claimant submitted a cassation appeal. It stated that the damage to the cargo was caused by an absence of proper crew control over the cargo, and the severe weather could and should have been predicted.

Held: The cassation appeal is dismissed.

Under para 12 of the Resolution of the Plenum of the Supreme Court of Russia No 25 dated 23 June 2015, to receive compensation for breach of contract or delict (tort), the claimant must prove that the defendant is the person as a result of whose actions or omission the damage occurred, as well as the fact of breach of contract or delict.

According to art 150(1) of the Merchant Shipping Code of Russia, the carrier must load, handle, stow, carry, hold in custody, care for, and discharge the cargo properly from the moment of acceptance of the goods to the moment of their transfer to the consignee. If a party is strictly liable for a breach of contract or delict, it bears the burden of proof of the circumstances excluding its liability (arts 401(3) and 1079(1) of the Civil Code of Russia).

Dismissing the appeal, the Court of cassation found that the carriage agreement contained a clause transferring the risks and responsibility regarding the deck cargo from the carrier to the shipper as per the agreement between them. Another point made by the Court of cassation was that the circumstances which caused the damage to the cargo were within the control of the shipper since the stevedores who loaded the cargo, and the company that prepared the stowage project, were contracted by the shipper, not the carrier. Their mistakes resulted in the cargo damage.

Therefore, the Court of cassation found that the defendant carrier was not liable for the cargo damage.