This was a claim brought by Goodwill Zapchasti LLC (the claimant) against MSC Mediterranean Shipping Co SA (the defendant) for non-delivery of cargo. The claimant claimed the value of the cargo, USD 70,782.37, and the freight, RUB 252,300.

The defendant argued that the claimant failed to provide the defendant with the documents to receive the cargo and that the rights to cargo disposal belonged to the shipper, the US company Autico International LLC. Moreover, the defendant argued that the claim was time-barred, and that the Court had no competence to consider the dispute.

The claimant bought and paid for the cargo from the shipper on 30 July 2021. The claimant then concluded a freight forwarding contract with Sputnik LLC (the freight forwarder). The freight forwarder undertook to organise the carriage but did not assume any liability for the actual carrier. The relevant agreement stipulated that all possible claims against the carrier rested with the claimant as cargo owner.

The freight forwarder hired the defendant to transport the goods on behalf of the claimant. The bill of lading nominated the defendant as the carrier, Autico International LLC as the shipper, and the claimant as the consignee. Two containers with the cargo were loaded onto the ship on 17 February 2022. The delivery term was 40 days, ie, until 28 March 2022. Notice of any cargo damage should be sent to the carrier or its agent in the port of delivery before or at the time of unloading the cargo, or if the damage was not apparent, within three days after discharge.

The Court of first instance found in favour of the claimant in full. The Court of Appeal upheld the judgment. The defendant submitted a cassation appeal.

Held: The cassation appeal is dismissed.

Under art 785 of the Civil Code of Russia (the CC RF), in respect of the carriage contract, the carrier undertakes to transport the cargo entrusted to it by the shipper to the place of delivery and deliver it to the person entitled to receive the cargo (the consignee), and the shipper undertakes to pay for the carriage. The conclusion of the carriage contract is proved by the issuance of a transport document (bill of lading or other document) to the shipper. According to art 796(1) of the CC RF, the carrier is responsible for the safety of the cargo after the acceptance of the goods for carriage and until the delivery of the goods to the consignee, if it does not prove that cargo loss or damage was caused by circumstances outside the carrier’s control. The same rules are stipulated in arts 150 and 166 of the Merchant Shipping Code of Russia (the MSC RF).

The carrier must compensate for loss of cargo in the amount of the value of the cargo lost, or for damage to cargo in the amount by which the cargo value decreased due to the relevant damage, and in case of the impossibility of cargo repairs or restoration of its value, loss or damage to the cargo which is notified in the amount of the declared value (art 796(2) of the CC RF). According to s 12 of the Resolution of the Plenum of the Supreme Court of Russia No 25 dated 26 March 2015, the claimant must prove that the defendant is the person whose actions or omission caused the damage, the breach of contract or tort, and the existence of damage (art 15(2) of the CC RF). After assessing the circumstances of the case, the Court concluded that the claimant successfully met the relevant burden of proof.

The defendant's argument that the claim was time-barred was dismissed by the Court. According to art 197 of the CC RF, the general prescription period may be changed for specific claims by law. Art 797(3) of the CC RF provides for a one-year prescription period for claims arising out of the contracts of carriage. This period starts at the time prescribed by the relevant transport codes. Under art 408(1) of the MSC RF, the prescription period for such claims starts on the day of the event that was the cause for the claim. So, the prescription period for non-delivery claims starts at the date when the cargo should have been delivered to the consignee. The cargo should have been delivered on 28 March 2022. Plus, the running of the prescription period is paused for the period for consideration of the pre-trial claim provided by law or agreed between the parties. Therefore, in the present case, the prescription period was until 28 April 2023. The claim was submitted on 6 April 2023 and, therefore, was not time-barred.

The Commercial Procedure Code of Russia (the CPC RF), in art 247(1)(3), provides that commercial courts are competent to consider commercial disputes involving foreign persons if the disputes arise out of a contract that should have been performed in Russia. According to art 247(1)(10) of the CPC RF, the commercial courts are competent to consider disputes involving foreign persons when the dispute closely relates to Russia. The dispute arose out of the contract of carriage that should have been performed in Russia. Therefore, the Court of Appeal reached the correct conclusion that it had the competence to consider the present dispute by virtue of arts 247(1)(3) and 247(1)(10) of the CPC RF. Moreover, art 248.1(4) of the CPC RF states that the Russian commercial courts have exclusive jurisdiction to hear the dispute if there are restrictive measures against one of the parties that prevent a fair trial, even though the agreement between the parties contains a foreign jurisdiction or arbitration clause. According to this rule, the existence of restrictive measures itself creates obstacles to accessing justice for the Russian party, and therefore, this Russian party's intention is sufficient to transfer the dispute under the jurisdiction of the Russian court.

In light of the above, the cassation appeal is dismissed.