PJSC TransContainer (the claimant) brought a claim against JSC Solikamskbumprom (the defendant) for damages arising from its failure to return containers under a freight forwarding contract.

Under the contract between the claimant and the defendant, the claimant undertook to organise carriage of goods at the defendant's request and to provide containers for that purpose. The defendant requested that the claimant organise the carriage of paper from Solikamsk, Russia, to Mundra, India. Part of the carriage was by sea, from the port of Novorossiysk, Russia, to the place of discharge. For the sea leg of the carriage, the claimant engaged LLC Ruskon (the carrier). Although the claimant engaged the carrier, neither the claimant nor the defendant was a party to the contract of sea carriage. The contract of sea carriage was concluded between the carrier and the consignee, Go Paper GmbH und Co KG.

The cargo reached the port of discharge on the Safir 1. The carrier was the ship's charterer. A fire broke out on the ship during discharge. The shipowner declared general average and hired Richard Hogg Lindley to prepare a general average adjustment. The carrier issued a general average bond and received the right to claim general average contributions from third parties, including the consignee. The carrier detained the cargo as security for general average contributions. The claimant requested the defendant either to return the container or pay for its use beyond the contractual time.

The defendant refused to pay for the use of containers. It argued that the detention of the containers was not due to its fault. The containers were detained by the carrier engaged by the claimant. The obligation to return the containers corresponded to the claimant's obligation to deliver the goods. The goods were not delivered, so the obligation to return the containers did not occur. Also, the defendant stated that the obligation to pay a general average contribution lay with the owner of the goods, the consignee. The defendant could not make the consignee provide the relevant security to release the goods. The defendant could not be liable for the consignee's omission.

The claimant argued that, under the Merchant Shipping Code of Russia (the MSC RF), the defendant could ensure that the containers are released even if a general average adjustment has not been issued. The carrier supported the claimant's position, stating that the defendant could pay the general average contribution or provide a general average bond or another sufficient security to release the containers. Moreover, the carrier stated that some of the containers had already been released upon the provision of sufficient security.

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

Held: The cassation appeal is dismissed.

The claimant acted as a carrier in relation to the defendant. Therefore, the MSC RF provisions on carriage govern the relationship between the parties.

The York-Antwerp Rules 1994 are enacted into Russian law by the MSC RF. According to art 284(3) of the MSC RF, general average is distributed among ship, cargo, and freight proportionally to their value at the time and at the place of the end of the common maritime venture. Under art 304(1) of the MSC RF, the contribution value of the property is the general value of the property (ship, cargo, and freight), proportionally to which the general average contribution is determined. According to art 305 of the MSC RF, the general average adjustment is prepared upon the request of the interested parties.

Under art 160 of the MSC RF, the consignee is liable to compensate the carrier for all expenses incurred on discharge of cargo and to pay freight, demurrage, or any other payments due under a bill of lading. Under art 160(2) of the MSC RF, the carrier has the right to detain the cargo to secure these payments. Therefore, the carrier had the right to detain the cargo to secure the general average contribution.

The Courts of first and appellate instance correctly determined that all risks in relation to the carriage and delivery of goods to the consignee, including the risk of fire on board the ship, laid with the claimant, as it was the party that organised the carriage and acted as a contractual carrier for the defendant.

At the same time, the Courts correctly found that the containers were in the claimant's ownership. Therefore, even though the defendant was not liable for any damages, cargo detention, or other circumstances arising from the incident, it had the obligation to pay for the use of containers beyond the stipulated time at the agreed rate.

The Courts found that the carrier's, and accordingly the claimant's, obligations were fulfilled when the containers were available for discharge. Any subsequent delay in their discharge could not be attributed to the carrier or the claimant. Therefore, the defendant's liability for failing to return the containers arose when the cargo became available for discharge. This period began when the general average adjustment was rendered. The Courts of first and appellate instances correctly determined this period and the amount of the defendant's liability.