This was a claim brought by LLC Komtransstroy (the claimant) against LLC Azimut (the defendant) and LLC Poseydon-Shipping (the shipowner) as jointly and severally liable under the contract of carriage of goods by sea.

The claimant argued that the shipowner failed to deliver the cargo to the port of destination as stipulated in the contract of carriage concluded between the claimant and the defendant. The claimant further alleged that the defendant had deceived it, because the claimant believed that the defendant carried out the transportation using its own ship. The shipowner should be responsible since it acted as an actual carrier and was, therefore, jointly and severally liable for the failure of transportation under art 173 of the Merchant Shipping Code of Russia (the MSC RF).

The shipowner was obligated to transport the cargo from Vladivostok to Nikolskoye on the Nerey. The defendant informed the claimant that due to the failure of one of the charterers to pay for carriage on the Nerey, the shipowner decided to discharge the whole cargo in Petropavlovsk-Kamchatskiy. The defendant, therefore, offered to recalculate the price paid under the contract of carriage as it was delivered, not to the destination initially stipulated, but to another port closer to the port of loading. The claimant demanded that the cargo be transported to the destination agreed. The defendant refused. The claimant submitted a claim. The Courts of first and appellate instances found in favour of the defendants. The claimant submitted a cassation appeal.

Held: The cassation appeal is dismissed.

The Court held that the contract between the claimant and the defendant was a time charter. Therefore, the defendant's liability should have been established in accordance with the provisions of the MSC RF on time charters. The Court cited the relevant rules. However, to establish liability, the Court actually applied the provisions on the contract of carriage of goods by sea.

Under art 115 of the MSC RF, under a contract of carriage of goods, the carrier is obligated to transport the cargo to the port of destination and deliver it to the person authorised to take delivery. The carrier is the person who concluded the contract of carriage. Under art 144 of the MSC RF, the bill of lading signed by the master of the ship is considered to be signed on behalf of the carrier. The shipper, in turn, is obligated to pay for the carriage (art 785 of the Civil Code of Russia).

On the basis of these provisions, the Court held that the carrier was the defendant. At the same time, the claimant’s argument that the defendant deceived it because the defendant did not carry out transportation on its own vessel was rejected by the Court since there were no stipulated obligations of the carrier to conduct the carriage on its own vessel in either the contract or in the MSC RF.

Art 166 of the MSC RF regulates liability for the late or non-delivery of the cargo. The Court found that the defendant did not breach the terms of the transportation since such terms were not stipulated in the contract. Moreover, the claimant accepted the cargo in Pertopalovsk-Kamchatskiy for further transportation to the point of destination. Therefore, the cargo could not be considered to have not been delivered.

The Court applied art 165 of the MSC RF, pursuant to which, if the carrier salved the cargo, the carrier has a right to a reward proportionally to the distance the cargo was transported.

The Court did not address the issue of joint and several liability of contractual and actual carriers under art 173 of the MSC RF since it was held that the defendants were not liable at all.