The Russian Court Denied the Shipper to Recover Losses from the Agent of CMA CGM Group (France) Caused by a Violation of the Sea Line Schedule
On 17 July 2023, the Arbitrazh Court of St. Petersburg and the Leningrad Region (Russia) considered the dispute between Modul LLC (Claimant) and CMA Rus LLC (Respondent), the organizer of transportation (a CMA CGM Group agent, France).
The Claimant argued that the Respondent, as an official representative of the Sea Line, had information regarding the entry and exit of the vessel from the port, confirmed bookings and issued the containers of the Sea Line, issued invoices for payment for transportation. The Respondent misled the Claimant about the real intentions of the Sea Line to operate voyages to the port of St. Petersburg on certain dates. The Claimant suffered losses in the form of the cost of storing containers planned for transportation in the amount of about 75 million Roubles.
From February to May 2022, scheduled vessel calls to the port of St. Petersburg were cancelled. At the same time, the Respondent did not send any notices on changing the schedule, on delay or cancellation of vessel calls.
The Court considered that the bookings where the Respondent ordered transportation were preliminary confirmations. They indicated only the expected (and not the final) date of departure of the vessel. The bookings were confirmed by the Sea Line and not by the Respondent, a Russian agent.
The Court came to the conclusion that the parties did not agree on a fixed date for loading the cargo on board the vessel or the name of the vessel, what was in line with the practice of maritime transport, where the vessel's entry into the port depends on many unpredictable factors and what makes it impossible to determine the exact date of the vessel's call. The schedule of vessel calls was established by the sea carrier, and the carrier's agent was not responsible for changing the schedule by the carrier or canceling vessel calls by the Sea line.
The Сourt considered that the Respondent was not a sea carrier or forwarder who was responsible to the client for the delivery/loading time (if agreed). Instead, the Respondent represented a sea carrier in the territory of the Russian Federation and was the latter's maritime agent.
The Сourt found that the booking was governed by the terms and conditions of the sea carrier's Bill of Lading (subject to CMA CGM Bill of lading terms and conditions), which were available at the request of the carrier and on the website www.cma-cgm.com. In accordance with the terms agreed by the parties by applying the terms of the bill of lading posted on the website, the carrier had the right to change the vessel, transfer loading to other vessels, dates of departure, transit time at any time without notifying the сlient.
Comments:
From the point of view of agency relations, the principal is responsible for the actions of the agent if the agent acted in accordance with the instructions of the principal. In this case, the Claimant most likely should have filed a claim directly with the CMA CGM Group (the principal) and involved him as a co-defendant. It is possible that the absence of an arbitration clause and the current political situation prevented the Claimant from filing a claim against the principal in arbitration or in a French court.
If this dispute were considered in a maritime arbitration, then the arbitrators could consider more carefully the correspondence between the Claimant and the Respondent, study what obligations arose between the parties, exclude the validity of the terms of the adhesion agreement if this clause unfairly limits the liability of the transportation organizer. It would be necessary to study the international conventions applicable to the dispute and show what guarantees were established there.
Any client reasonably expects that the transportation will be arranged according to the sea line schedule. So, for comparison, these interests are protected by Russian law, and in particular, deviation from the schedule is not allowed for more than four days.