In cases of maritime incidents, the courts attach key value to such reports of the Federal Transportation Inspection Service, says Vitalia Skalatskaya, senior lawyer at Nortia. So, in case No. A51-14547/ 018, the owner of a damaged vessel could not recover losses due to the fact that the agency did not conduct its own investigation. Three instances considered that the conclusion was the only possible evidence of the accident causes, and therefore of the guilty person. Such a serious attitude of the courts to these documents is fully justified, the expert is sure: “The investigation is carried out immediately after the accident: in a short period of time and by officials who are not dependent on the participants of the case.” But sometimes interested parties are not satisfied with the results of such an investigation.
Find an insurer's interest
The tanker Abrau, insured by the Soglasie IC, broke down when it was transporting cargo from the Novorossiysk Sea Port to the port of Gebze, Turkey. Local rescuers towed a ship belonging to the company "Kontur-SPb" to a secure anchorage. Specialists in maritime law from Ships and People, hired by the party affected, found out: the accident occurred due to a broken coupling. The Federal Transportation Inspection Service also conducted its investigation and made similar conclusions. Then Kontur-SPb demanded that the insurer pay money for the accident: € 374,660 and $ 69,191. The insurer declined the request so the company had to recover it in court (case No. A56-102256 / 2018).
In parallel with the case on the payment, the insurer decided to challenge the conclusion of the Federal Transportation Inspection Service in court, disagreeing with the conclusion of the investigation. In the statement of claim Soglasie indicated that employees of the department did not take all possible actions to find out the true cause of the accident. The Arbitration Court of St. Petersburg and the Leningrad Region refused to accept this lawsuit, referring to the fact that the appealed document does not have signs of a non-normative legal act and does not affect the applicant’s rights in entrepreneurial activity (case No. A56-104785 / 2018). Oksana Selezneva, the judge, emphasized that the conclusion of he Federal Transportation Inspection Service is not addressed to a specific person and has conclusions and recommendations aimed at preventing similar accidents in the future. In addition, the document does not contain any requirements and does not give any rights or obligations to the insurance company, the court added. The appeal recognized the Soglasie refusal reasonable and upheld the conclusion of the Arbitration court of St. Petersburg and the Leningrad Region.
The district court recalled the findings of the lower instances, indicating that the appealed document affects the legitimate interests of the insurer in the field of entrepreneurial activity and may be subject to judicial review. The Arbitration Court of the North-Western District sent the case back to the first instance, deciding to consider it on the merits.
Is it possible to appeal the opinion in court
The state agency and Kontur-SPb did not agree with such conclusions and appealed them to the Supreme Court. At a meeting the agency’s representative Konstantin Alekseev, head of the legal support department of the North-West Directorate the Federal Transportation Inspection Service, argued that the appealed opinion was not a normative legal act. He explained that a similar act should be understood as a document that contains mandatory instructions, orders that affect civil rights and the interests of specific individuals protected by law:
“There should be prescriptions that bring to legal consequences.” Meanwhile, the conclusion of the Federal Transportation Inspection Service does not contain such signs, the lawyer noted: “All recommendations in it are aimed at preventing similar accidents in the future.” In addition, the insurance company is not an interested party in a controversial case, since it does not relate to shipping and is not associated with such activities, Alekseev added.
- In your opinion, what are the grounds for refusal at the stage of a statement of claim acceptance? - Tatyana Zavyalova, the presiding judge, asked the representative of the department.
- The document does not affect the applicant’s rights in entrepreneurial activities that are not related to shipping. They could send us motivated objections, said the head of the legal department of the North-West Directorate of the Federal Transportation Inspection Service.
- And in court, how can I appeal this document? - continued the judge.
- In general, we have a strong belief that such an act is for reference only. In a specific situation, this is our other argument that the applicant is inappropriate, emphasized Alekseev.
Ilya Firsov, the representative of Kontur-SPb, a partner of Jurinflot-SPb, also insisted that the rights of the insurance company are not affected by the document.
Anna Polina-Stashevskaya, the representative of Soglasie said that they were guaranteed the judicial protection: “There is no restriction for the party that proves its right to appeal to court.” She explained that the rights of their company depend on the controversial conclusion: "This is our property interest." Considering the recommendations of the Federal Transportation Inspection Service, we can no longer recover money in a recourse order, explained Polina-Stashevskaya.
After hearing all the arguments of the parties, the three judges went to the deliberation room and after half an hour announced the the decision: cancel all acts of the lower instances, and send the case for a new trial to the first instance. The Arbitration court of St. Petersburg and the Leningrad region will again have to consider the possibility of accepting the case of Soglasie for production.
Pravo.ru experts: “The insurer may be in a knowingly losing position”
The conclusion of the Federal Transportation Inspection Service does not have the signs of a non-normative legal act, since it is not an authoritative prescription, but is only a recommendation, confirms Alexey Karchemov, senior lawyer at Egorov Puginsky Afanasyev and partners.“It is necessary to find out whether such an act directly affects the legitimate interests of the insurer, whether it carries legally significant consequences, whether it is the only possible and mandatory evidence of the circumstances and causes of the accident in a particular case.”
Investigation of accidents at sea and their results relate to safety in maritime transport, that is the public interest. Private law interest on the issue of insurance indemnity payment does not depend on the conclusions of the Federal Transportation Inspection Service. This document is one of the evidence and does not mean at all that the case is insurance event.
Without the opportunity to appeal the conclusion, the insurer is in a deliberately losing position, said Vitaly Skalatskaya, senior lawyer of Nortia: “It is unlikely that they will be able to refute the conclusions of the the Federal Transportation Inspection Service in the framework of a civil law dispute.”