Duch stupidity or meateater’s job? Never say “No” before you know what shot is.

Just a few words in regard to poll in Netherlands in regard to association between EU and Ukraine.

The supporters to say “No” alleged that there is nothing against Ukraine but against EU.

In this regard a few questions. Within long period of time EU had signed a lot of international agreements; secondly, there were a lot of agreements on association concluded between EU with the other countries; the similar agreements on association were signed EU with Moldova and Georgia. Thus, a lot of international agreements signed by EU. But only agreement signed with Ukraine was under attacked by so called “euro skeptics”. Very sensitive issue for Ukrainians a lot of which were killed for their choice to sign the agreement with EU. Why so? Is it coincidence? I don’t believe in coincidence and I do not want to believe that Netherlands’ people, who said “No”, were led by meateaters corrupted by people who killed Netherlands’ citizens in MH17 crash.

Never say no before you know what is shot is, no-dear euro skeptiks from Neatherland.

Liability of the carrier under Montreal Convention in the case law of Ukraine. Prepared for IATA Liability Report 2013

Liability Reporter 2013

Contribution from the Ukraine

Arseniy Herasymiv, Ilyashev & Partners Law Firm, Ukraine

Moral damages awarded against carrier under Montreal Convention

Individual v Aeroflot [2012] – Panel of Judges in Civil Cases of the High Specialised Court of Ukraine

In the landmark case of Individual v Aeroflot the High Specialised Court of Ukraine overturned the previous decision of the Appeal Court of Kyiv to award the claimant moral damages in a case brought against Aeroflot under the Montreal Convention. Previously, the Ukraine Courts had refused moral damages in disputes under the Montreal Convention.

The claimant purchased a return ticket on board an Aeroflot flight from Kyiv to Berlin. The defendant cancelled the return flight and did not offer an alternative flight to the claimant. As a result the claimant was forced to purchase a ticket on board an International Ukrainian Airlines flight the next day.

The claimant brought an action seeking actual damages in the amount of US$1,200 and moral damages in the amount of US$1,100.

The Court of First Instance awarded the claimant actual damages of US$340, moral damages of US$125 and compensation for the cancellation of the flight in the amount of US$540.

The Appeal Court of Kyiv party overturned the decision of the Court of First Instance in respect of the award of moral damages. Subsequently this decision was overruled by the High Specialised Court of Ukraine.

The Court held that under Article 19 of the Warsaw Convention and Article 19 of the Montreal Convention the carrier is liable for damage occasioned by causing delay to passengers, baggage or cargo. Such liability can be avoided if the carrier can prove that it and its servants and/or agents took all measures that could reasonably be required to avoid the damage, or that it was impossible for the carrier to take such measures. Therefore a passenger has a right to compensation where a delay has occurred. The International Conventions do not specify the type of damage (moral or material) which should be compensated but merely stipulate the limitation sum of any indemnity.

 

No recovery of moral damages for delay

Individuals v Aerosvit [2012] – Appeal Court of the Kyiv region

In Individuals v Aerosvit the Appeal Court of the Kyiv Region overturned the decision at First Instance and denied the claimant compensation other than reimbursement of the ticket.

The claimants had bought tickets on a return flight from Kyiv to New York. On the day of the outbound flight the claimants were informed that the flight had been delayed. The flight was again delayed the following day and beyond due to a failure of the aircraft. As a result the claimants were forced to take a flight with another airline.

The claimants argued that in addition to the extra cost of the alternative flight they had incurred costs for medicine and medical aid due to chronic illness. The claimants sought actual damages of US$951 and moral damages of US$18,750 per passenger.

The defendant airline argued that the delays were caused by technical problems with the aircraft and that under Article 76 of the Rules of Air Carriage the carrier may delay a flight for security reasons. The defendant had already compensated the claimants for the cost of the purchased ticket.

The Court of First Instance awarded the claimants US$830 being the difference between the cost of the original tickets and the replacement tickets.

The Appeal Court held, making reference to the Warsaw Convention and the Rules of Air Carriage, that a carrier may delay a flight for security reasons. Paragraphs 16.3 and 16.4 state that in the event of a delay a passenger has a few options, one being compensation for the purchased ticket. Since the claimants had already obtained such compensation the carrier was not liable for any further damages.

 

No recovery of moral damages for delay

Individual v Aerosvit [2012] – Appeal Court of Kyiv region

The claimant had purchased a ticket for a return flight from Kyiv to Gyandzha. When the claimant arrived at Gyandzha airport she was informed that check-in had closed. The claimant subsequently discovered that the departure time had been changed without her being notified by the defendant. As a result the claimant was forced to get a flight to Moscow and then travel to Kyiv by train.

The claimant sought general damages of US$600, moral damages of US$340 and compensation of US$313.

The defendant argued that the cost of the ticket for the flight from Gyandzha to Kyiv had already been reimbursed to the claimant. This was not denied by the claimant.

The Court of First Instance rejected the claim. The claimant appealed to the Appeal Court of the Kyiv Region where the claim was again rejected.

 

Loss of cargo

Greencarrier Ukraine Ltd v Insurance Company "Brokbusiness" – Commercial Court of Kyiv City

In Greencarrier Ukraine Ltd v Insurance Company "Brokbusiness" the claimant had arranged for a cargo of artificial corundum crystals to be taken to Osaka. The claimant had taken out insurance for the cargo with the defendant company. When the cargo arrived in Osaka it transpired that one out of five pieces of cargo had been lost. On 5 May 2011 the claimant informed the defendant of the incident. Subsequently on 23 May 2011 the Aviation company informed the claimant that they had abandoned the search for the cargo as the 21 day period had expired.

The claimant sought damages in the amount of US$23,000.

The defendant argued that the claimant did not inform the insurer of the incident within the period provided in the contract of insurance.

The claimant argued that the IATA Rules and the Montreal Convention applied which provided a period of 21 days for the search of the cargo.

The Court accepted the defendant's argument and held that the relations between the two parties were grounded in a contract of insurance which determined the period for the notification of the incident and therefore the IATA Rules and the Montreal Convention should not apply.

 

Damage to Baggage

Individual v Aerosvit – Boryspil City-District Court

In Individual v Aerosvit  the claimant had travelled from Orlando to Kyiv but on arrival at Boryspil Airport her baggage could not be located and a complaint was filed to the carrier.

Three days later at Dnipropetrovs'k Airport the claimant retrieved her lost baggage only to find that the bag had been damaged, however no items within the bag had been lost or stolen. The claimant brought an action against the defendant carrier seeking US$182 for the replacement of the bag, US$313 in moral damages and US$377 to cover the court fees.

The defendant argued that at the time the claimant retrieved her baggage at Dnipropetrovs'k Airport no complaint was made in respect of the damage as required by paragraph 4 Chapter XXX, Rules of Air Carriage.

The Court agreed with the defendant and rejected the claim on these grounds. The court went further to state that there was no evidence that the damage to the bag was the fault of the carrier.

______________________________________________________________________________________

In Open Joint Stock Company “Siberia Airlines” v. Ministry of Defense of Ukraine, State Treasury of Ukraine,413 Siberia Airlines filed claims in the Kiev Commercial Court and with the Ministry of Defense and the State Treasury of Ukraine, seeking to collect from the State (in the person of the Ministry of Defense of Ukraine) damages of USD 6,370,777.39, being the market value of a destroyed Tu-154M aircraft and lost profits arising in connection with the loss of the aircraft.

On October 4, 2001, a warhead was fired from a S-200V ground-to-air missile by the Ministry of Defense of Ukraine during military exercises of air defense troops in 31 Testing Facility of the Black Sea Fleet  of the Russion Federation in the Crimean Peninsula. The missile hit and brought down a Siberia Airlines Tu-154M that was operating a passenger charter flight from Tel Aviv, Israel, to Novosibirsk, Russia. 66 passengers and 12 crew members died.414

Payment of compensation by the state of Ukraine to relatives of the victims was settled by the conclusion of agreements with the states of Israel and Russia. The payment of monies by Ukraine to relatives of those killed in the crash was made voluntarily, without any determination of responsibility at law. The Ministry of Defense of Ukraine argued that the findings of the Aircraft Accidents Investigation Commission did not prove the circumstances of the loss of the aircraft and should not be held determinative of the same by the court. The defendant, the State Treasury of Ukraine, also rejected the claims in full.

The Court found unproven the alleged circumstances of the crash. The court disagreed with plaintiff's arguments that recognition by Ukraine of its involvement in the air crash was confirmed by the intergovernmental agreements entered into with Israel and Russia. By those agreements ex gratia payments were made to family members of deceased nationals. The same did not constitute an admission of liability at law. The payments did not comprise compensation within the meaning of payment of damage to the victims by the entity that committed the offense. The “ex gratia” settlement was not followed by recognition of legal offense and is not to be characterized as compensation, as interpreted by international law. The claim brought by the airline was rejected.

On May, 28, 2012 the Kyiv appeal commercial court upheld the decision of the court of the first instance.

On December, 11, 2012 the Supreme commercial court of Ukraine upheld the decisions of the courts of the first and appeal instances. The court stated that there were no clear evidences that the aircraft was damaged by Ukrainian missile precisely. The expertises provided in the case are based on the assumptions.

In formation and operation of the common market, the case of Procureur du Roi v Benoît and Gustave Dassonville, (Case 8-74) was the most important of all in the 20-th Century

In July 1952 when European Coal and Steel Community was established, the greatest optimists could not even predict the result of it – great formation – European Union with 27 Member States, common currency and policy and the single or common market of EU countries.

Single market of EU means free movement of goods, services and labour inside of organization. It means that companies may move their capitals, goods and services from one country to another. Companies obtain good possibility to develop their business, enter new markets. On the other hand, consumers will get more competitive market as the result of it cheaper goods. It has positive impact on social life because people get more possibilities for employment.

In the modern world the development of the transport systems, information technologies lead to a new form of cooperation among the countries. One of them is the single market as the highest form of economical cooperation.

No doubt, the single market has its weaknesses, for example the national companies lose privileges from national governments, and some of them will be wound up. Eventually some employees will lose their jobs.

But in my point of view, there is no alternative to international cooperation by means of creation and development of the single market.

The meaning of single market is abolition of the restrictions in the free movements of goods and services. This is one of the fundamental principle of economy development. The sense of free movement of goods is simple: no restriction and the same rules and possibility for all countries. In other words, the single market is “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured...”[1]

The principle of free movement of goods is provided by the Treaty on the function of the European Union (hereafter referred to as “the Treaty”), Community Custom Code, Directives and case law.

The basic principle of single market is provided by the Article 3, p. “C” of the Treaty: ‘the abolition, as between the Member States, of obstacles of freedom movements of persons, services and capitals.’[2]

This principle became a fundamental ground for establishing of the European Community.

Having created the single market the member-states faced the problems of restrictions of free movement of goods provided by national rules. It was not only the matter some sort of discrimination but also ‘they apply in much wider ranger of circumstances, catching national rules that may have been enacted for legitimate, non-trade-related reasons, such a worker protection, consumer protection or protection of the environmental and which to domestic goods as well as to import or export.’[3]

The Article 30 of Treaty prohibits quantitative restrictions, and all measures having equivalent effect on imports, Article 34 contains a similar prohibition on export. The prohibition includes quantitative restrictions and measures of equivalent effect to quantitative restrictions.

On 22 December 1969 Commission adopted the Directive 70/50/EEC  according to which ‘… of based on the provisions of Article 33 (7), on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty’. This Directive gave wider definition of the restrictions of the free movement of goods, particularly ‘…covers measures, other than those applicable equally to domestic or imported products, which hinder imports which could otherwise take place, including measures which make importation more difficult or costly than the disposal of domestic production.  In particular, it covers measures which make imports or the disposal at any marketing stage, of imported products subject to a condition-other than a formality-which is required in respect of imported products only, or a condition differing from that required for domestic products and more difficult to satisfy. Equally, it covers, in particular, measures which favour domestic products or grant them a preference, other than an aid, to which conditions may or may not be attached.’[4]

            But the issue was what was framework of the law? The case law of the European Court of Justice (hereafter referred to as the ECJ) had the essential impact in the determination of this issue. One of such cases, which had strong impact in the free movement of good area was the case of Procuror do Rui v Benoit and Gustave Dassonville, Case 8-74 (hereafter referred to as the Dassonville case).

            No doubts, the Dassonville case was the landmark case providing the principle of the free movements of goods having impact to the further case law.

               On the early stage the ECJ considered the restriction of free movement of goods as measures of total or partial restriction on import, exports or goods in transit. For example, in case Riseria Luigi Geddo v Ente Nazionale Risi the court stated: ‘The prohibition on quantitative restrictions covers measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit.’[5]

In generally there are three landmark cases in the matter of relating the measurers having equivalent effect to quantitative restrictions in free movement of goods: Cassis Dijion, Cases Keck and Mithouard  and the case in question Procuror do Rui v Benoit and Gustave Dassonville

            The Dassonville case was originated by the court of first instance - Tribunal de Premier Instance of Brussels and Under Article 177 of the Treaty and referred to Court of Justice of the European Communities concerning two questions of the interpretation of the Articles 30, 31, 33, 36 and 85 of the EEC Treaty. In the context of above mentioned articles the Court considered the number of issues: the forms of restriction of free movement of goods, the different custom regime for direct and indirect import, the exclusive agreement as the form of restriction of free movements of goods.

By Judgment of 11 January 1974, the Belgian court referred to the ECJ the following questions:

1. Must Articles 30, 31, 32, 33 and 36 be interpreted as meaning that a national provision prohibiting, in particular, the import of good such as spirits bearing a designation of origin duly adopted by national government where such goods are not accompanied by an official document issued by the government of exporting country certifying their rights to such designation, must be considered as a quantitative restriction or as a measure having equivalent effect.

2. Is an agreement to be considered void if its effect is to restrict competition and adversely to affect trade between Member States only when taken in conjunction with national rules with regard to certificates of origin when that agreement merely authorizes or does not prohibit the exclusive importer from exploiting that rule for the purpose of preventing parallel imports?[6]

            In Dassonville case the issue considered by the ECJ was the difference in legislative regime created by Belgium Government for direct and indirect importers. The direct importers had preferences. These preferences were provided under Belgian law of 18 April 1927. This Law provided requirements to accompany the goods by certificate of origin. Thus, the indirect importers, which imported the product from countries which did not require a certificate of origin were discriminated because they could not provide the certificate of origin. If importer delivered the goods from United Kingdom to France, importer did not need the certificate of origin. To the contrary, if importer delivered the goods from United kingdom to Belgium it needed the certificate of origin. Therefore, two Member States (France and Belgium) provided different customs regime.

            Considering the Dassonville case, the ECJ gave the wider definition of measures having equivalent effect to quantitative restrictions: ‘All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.’[7] The result of this conclusion was wide interpretation, which gave reasonable grounds to participants of single market to defend their rights concerning restrictions of free movements of goods created by national rules. The claims where initiated against as the EU bodies as well as the different national public bodies central and regional. Moreover, the actions of the professional associations were considered by the ECJ in the context of abolition of restrictions of free movement of goods. For example the case R v Royal Pharmaceutical Society of Great Britain (cases 266 and 267/87). In this case the ECJ sated: ‘Measures adopted by a professional body such as the Pharmaceutical Society of Great Britain, which lays down rules of ethics applicable to the members of the profession and has a committee upon which national legislation has conferred disciplinary powers that could involve the removal from the register of persons authorized to exercise the profession, may constitute 'measures' within the meaning of Article 30 of the EEC Treaty.’ [8]

The important issue of the Dassonville case was abolition the difference in legislative customs regime of the Member States. In this issue the ECJ considered: ‘Consequently, the requirement by a member State of a certificate of authenticity is less easily obtainable by importers of authenticity which is less easily obtainable by importers of an authentic product which has been put into circulation in regular manner in another Member State than by importers of the same product coming directly from the country of origin constitutes a measure an effect equivalent to a quantitative restriction as prohibited by the Treaty.’[9]

Another conclusion made by ECJ was that the exclusive dealing agreement may considered as the form of restriction of the free movements of goods. Taking to account the final conclusions, the ECJ considered that exclusive agreement was the form of restriction of free movement of goods having the monopoly effect in connection with national customs rules, which made preferences for national exclusive distributors. It means that the exclusive agreement does restrict the trade by itself and as Commission noted ‘… it can have the effect of restricting trade when, considered separately or in conjunction with parallel agreement, it confers on concessionaires, in law or in fact, an absolute territorial protection against parallel imports of the products concerned.’[10]

Answering the questions issued by Belgian Court, European Court of Justice created principles called as Dassonvile formula, as following: ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community are to be considered as measures having an effect equivalent to quantitative restriction.’ Broadly speaking the Dassonville formula shall be the test to consider whether the defined actions have the measures having effect to quantitative restriction.

In the further cases ECJ provided new principles in using of Dassonville formula. In case Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (case 120/78) so called case Cassis de Dijon the ECJ provided the rule of reason [11] ‘Obstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.’[12]

The other principle of Dassonvile formula in Cassis de Dijon case was the rule of proportionality which means, that certain measures, though within the Dassonville formula, will not breach article 30 the Treaty if they are necessary to satisfy as matters of overriding public interest.

The important principle of Dassonvile formula in Cassis de Dijon case is mutual recognition principle, which means that there is no valid reason why the goods, which have been lawfully produced and marketed in one of the Member States, should not be introduced into any other Member State.[13]

The impact of Dessonville case may be observed in the scope judgment in joined Cases 267/91 and 268/91 Keck and Mithouard . In the decision the ECJ noted: “In view of the increasing tendency of traders to invoke Article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States, the Court considers it necessary to re-examine and clarify its case-law on this matter.”[14] The one of results of Dessonville case was the increasing of the number of cases concerning Article 30 of the Treaty. Thus, the court had to provide framework in using Dassonville formula.

In this case the claimants applied that the prohibition in France of resale at loss contradicted to the principals of free movement of goods, services and capital, free competition in the Common Market. Among the other, the advocate represented the claimant cited the Dassonville case arguing that this matter the restriction of free movement of goods took place as it was defined in the Court Decision in Dassonvile Case.

               Citing the rule of reason from Cassis de Dijon ECJ drew a distinction between rules which lay down “requirements to be met” by goods, such as those relating to designation, size, weight, composition, presentation, labelling and packaging, and rules relating to “selling arrangements”. Rules governing “requirements to be met” falling within the Dassonville formula remained subject to the rule of reason in Cassis. However, “contrary to what [had] previously been decided.”[15]

               The ECJ stated:

               By contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

               Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty.[16]

               Keck thus seemed to suggest that where a selling arrangement was in issue, the Dassonville test would not be satisfied.[17]

I presume that ECJ faced the situation when any suspicion in any potential restricting of free movements of goods would lead to appeal to Dassonville formula. Therefore ECJ had to enter the framework for using Dassonville formula.

In my point of view the case in question had crucial influence on further development of common market. The court gave wider determination of barriers in the free movement of goods, wide determination of the free movement of goods, the unfair competition in the context of exclusive delivery agreement, direct and indirect discrimination. In this point I agree with Observation of the Dassonvilles filed to the ECJ, that ‘the rules of Common Market are aimed not only liberalization of direct trade between the producer country and the consumer country but also at all subsequent trade within the framework of a single market.’[18]

               The Desonvile formula influenced the adoption of new EU Legislation. This formula was used in the article 250 of the Community Custom Code, establishing that the customs rules and procedures of the one Member State shall have the same legal effects in the other Member State. More over, ‘the findings made at the time controls are carried out by the customs authorities of a member State shall have the same conclusive force in other Member States as the findings made the custom authorities of those Member States.’[19]

What conclusion can be made on the basis this essay? No doubts the Dassonville case had positive impact on the principle of free movements of goods. The ECJ interpreted the Treaty. The ECJ interpretation announced that all measures that have any suspicions in reduce imports are measures having equivalent effect. Despite the fact the Dassonville case was criticised, it gave the strong impulse for further adoption and harmonization of the EU Law in the  providing the principle of free movement of goods and services.

Having based on Dassonville formula a lot of participants of the single market could defence its rights against discrimination. The Dassonville case was the start for further development of the EU single market and its one of the main principles – free movement of goods.

The number of words 2739

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[1] Leicester Institute of Legal Practice, Free Movement of goods (1) Introduction to Free Movement of goods

[2] Consolidated Version of the Treaty on European Union [2010] OJ C83/51 available from https:˂//vle.dmu.ac.uk/ webapps/portal/frameset.jsp?tab_tab_group_id=_2_1&url=%2Fwebapps%2Fblackboard%2Fexecute%2Flauncher%3Ftype%3DCourse%26id%3D_384756_1%26url%3D˃ accessed 27 November 2011

[3] Oxford University Press, Free Movements of Goods vol 3 available from http:˂//www.oup.com/uk/orc/ bin/9780199219070/steiner10e_ch19.pdf˃ accessed 27 November 2011

[4] Commission Directive 70/50/EEC of 22 December 1969 on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty OJ L 013 P. 0029 - 0031 available from http:˂//eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= CELEX :31970L0050:EN:HTML˃, accessed 27 November 2011

[5] Case 2-73 Riseria Luigi Geddo v Ente Nazionale Risi [1973] CR 1973 00865 available from ˂http://curia.europa.eu/juris/showPdf.jsf?text=&docid=88489&pageIndex=0&doclang=EN&mode=doc&dir=&occ=first&part=1&cid=11401˃, accessed 22 December 2011

[6] Case 8-74 Procureur du Roi v Benoît and Gustave Dassonville [1974] CR 1974 00837 available from ˂http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61974CJ0008:EN:PDF˃ accessed 27 November 2011

[7] Case 8-74 Procureur du Roi v Benoît and Gustave Dassonville [1974] CR 1974 00837 available from ˂http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61974CJ0008:EN:PDF˃ accessed 27 November 2011

[8] Joined Cases C-266 and 267/87 R v Royal Pharmaceutical Society of Great Britain [1989] CR 198901295 available from http:˂//curia.europa.eu/juris/liste.jsf?num=C-266/87&language=˃en accessed 27 November 2011

[9] Case 8-74 Procureur du Roi v Benoît and Gustave Dassonville [1974] CR 1974 00837 available from ˂http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61974CJ0008:EN:PDF˃ accessed 27 November 2011

[10] Case 8-74 Procureur du Roi v Benoît and Gustave Dassonville  [1974] CR 1974 00837 available from ˂http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61974CJ0008:EN:PDF˃ accessed 27 November 2011

[11] Oxford University Press, Free Movements of Goods vol 3 available from ˂http://www.oup.com/uk/orc/ bin/9780199219070/steiner10e_ch19.pdf˃ accessed 27 November 2011

[12] Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein [1979] CR 1979 00649 available from ˂http://curia.europa.eu/juris/showPdf.jsf?text=&docid=90055&pageIndex=0&doclang=EN&mode=doc&dir =&occ=first&part=1&cid=35398˃ accessed 22 December 2011

[13] Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein [1979] CR 1979 00649 available from ˂http://curia.europa.eu/juris/showPdf.jsf?text=&docid=90055&pageIndex=0&doclang=EN&mode=doc&dir =&occ=first&part=1&cid=35398˃ accessed 22 December 2011

[14] Joined Cases C-267 and 268/91 Keck and Mithouard [1993] CR 1993 I-06097 available from ˂http://curia.europa.eu/juris/showPdf.jsf?text=&docid=98137&pageIndex=0&doclang=EN&mode=doc&dir=&occ=f irst&part=1&cid=36712˃ accessed 22 December 2011

[15] Joined Cases C-267 and 268/91 Keck and Mithouard [1993] CR 1993 I-06097 available from ˂http://curia.europa.eu/juris/showPdf.jsf?text=&docid=98137&pageIndex=0&doclang=EN&mode=doc&dir=&occ=f irst&part=1&cid=36712˃ accessed 22 December 2011

[16] Joined Cases C-267 and 268/91 Keck and Mithouard [1993] CR 1993 I-06097 available from ˂http://curia.europa.eu/juris/showPdf.jsf?text=&docid=98137&pageIndex=0&doclang=EN&mode=doc&dir=&occ=f irst&part=1&cid=36712˃ accessed 22 December 2011

[17] Oxford University Press, Free Movements of Goods vol 3 available from ˂http://www.oup.com/uk/orc/ bin/9780199219070/steiner10e_ch19.pdf˃ accessed 27 November 2011

[18] Case 8-74 Procureur du Roi v Benoît and Gustave Dassonville  [1974] CR 1974 00837 available from ˂http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61974CJ0008:EN:PDF accessed 27 November 2011

[19] Council Regulation No 2913/92/EEC of 12 October 1992 Community Customs Code available from ˂http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1992:302:0001:0050:EN:PDF, accessed 27 November 2011

Предлагаю статью о некоторых аспектах заключения договора строительства яхты. Статья подготовлена мною для журнала "Шкипер"

НЕКОТОРЫЕ ОСОБЕННОСТИ ЗАКЛЮЧЕНИЯ И ИСПОЛНЕНИЯ ДОГОВОРА СТРОИТЕЛЬСТВА ЯХТЫ

Заключение и исполнение договора строительства яхты затрагивает целый комплекс правоотношений международного права, страхования, финансовых инструментов и является довольно сложным процессом, который невозможно уместить в одной статье.

Настоящая статья лишь акцентирует внимание на отдельных моментах, на которые, по моему мнению, следует обратить внимание при заключении и исполнении договора строительства яхты.

Строительство яхты начинается с ее конструирования, разработки дизайна. Поэтому при подготовке проекта договора особое внимание нужно обратить на описание яхты, ее дизайн (концептуальный, предварительный, окончательный). Документы, отображающие дизайн яхты, должны быть неотъемлемой частью договора. Договор должен предусматривать условие, может ли указанный дизайн быть использован при строительстве других яхт, является ли он лимитированным или не лимитированным.

На сторону, осуществляющую проектирование яхты, важно возложить не только обязанность по проектированию яхты, но и дальнейший контроль строительства, предоставление советов и рекомендаций, предоставление экспертного заключения при необходимости.

Важно предусмотреть сроки выполнения всех работ и урегулировать вопрос относительно оплаты работы в случае превышения сроков выполнения работ. Детально обозначить порядок передачи-приема построенной яхты, ее испытания, порядок устранения неполадок, выявленных в ходе испытания.

Договор должен предусматривать создание комиссии по передаче-приему этапов выполненных работ. Целесообразно также предусмотреть недопустимость внесения каких-либо  изменений в дизайн яхты.

Особого внимания требуют положения об авторских правах на чертежи, схемы, проекты, фотографии, макеты и т.п. Стороны должны прийти к соглашению, принадлежат ли они дизайнеру или клиенту, имеет ли дизайнер право их продавать третьим лицам. Если авторские права на дизайнерские решения принадлежат покупателю, вправе ли он их отчуждать без согласия дизайнера.

Дизайнер яхты имеет право присвоить яхте имя. Поэтому вопрос об имени яхты и возможности его изменить без согласия дизайнера важно урегулировать на этапе заключения договора.

В отношении ответственности дизайнера яхты следует отметить, что она может быть возложена лишь за ошибки в дизайне, повлекшие ущерб, находящийся в прямой причинно-следственной связи с причиненным вредом. Однако такая ответственность дизайнера может быть ограничена, если дизайнерское решение было частью правил или требований.

Учитывая высокую стоимость строительства яхты, рекомендую страховать риски, связанные с исполнением договора строительства. Страховать нужно не только  риски на период с момента заключения договора и до фактической передачи яхты владельцу, но и связанные cо скрытыми недостатками, которые могут быть выявлены уже в процессе эксплуатации яхты. Кроме того, могут быть застрахованы риски, связанные с повреждением корпуса и оборудования, военные риски, риски, связанные с потерей титула права собственности, пиратством и т.п.

Проектирование и строительство яхт  осуществляется в соответствии с их строгой классификацией. Для того, чтобы яхта была застрахована, она должна пройти классификацию в классификационном обществе, например:

• American Bureau of Shipping (ABS)
• Bureau Veritas (BV)
• China Classification Society (CCS)
• Det Norske Veritas (DNV)
• Germanicher Lloyds (GL)
• Korean register of Shipping (KRS)
• Lloyd’s Register (LR)
• Nippon Kaiji Kayokai (NKK)
• Registro Italiano navale (RINA)
• Russian Maritime register of Shipping (RMSR)

Указанные организации имеют независимый статус. Их цель – разработка норм и правил, касающихся создания и эксплуатации судов, разработка предложений по безопасности судоходства и их предоставление национальным правительствам.

Например, целью деятельности Классификационного общества «Российский морской регистр судоходства», созданного 31 декабря 1913 года, является:

• рассмотрение технической документации, осуществление технического наблюдения и выдача документов, свидетельств и актов на суда и плавучие сооружения, а также на судовые механизмы, оборудование, устройства, изделия, снабжение и материалы, холодильные установки, грузоподъемные устройства, контейнеры;
• обмер судов и плавучих сооружений;
• осуществление технического наблюдения за выполнением положений международных конвенций и выдача соответствующих документов от имени морских администраций стран - сторон конвенций;
• сертификация промышленной продукции и производств;
• сертификация систем менеджмента качества, экологического менеджмента и управления в области охраны труда и профессиональной безопасности на соответствие требованиям международных стандартов ИСО серии 9001, 14001 и OHSAS 18001;
• освидетельствование систем управления безопасностью судоходных компаний и судов на соответствие требованиям Международного  кодекса по управлению безопасной эксплуатацией судов и предотвращением загрязнения;
• анализ данных и предоставление необходимой информации судовладельцам, морским администрациям, страховщикам и портовым властям при смене класса судна;
• сотрудничество с морскими администрациями, портовыми властями при контроле судов в портах. [1]

Более детально о функциях вышеуказанных органов читатель может ознакомиться на официальных сайтах этих организаций.

Важность классификации заключается в том, что если яхта покупается за счет кредитных средств, то, очевидно, банк будет требовать документ, выданный классификационным обществом о соответствующей классификации яхты.

Строительство яхты сопряжено с множеством затрат. Как правило, это дополнительные или сопутствующие строительству услуги: транспортировка материалов и деталей, услуги экспертов, оплата топлива, мелкие услуги по подготовке копий документов, корреспонденция, всевозможные юридические и консультационные услуги (включая оплату юридических услуг в споре с третьими лицами) и т.п. В связи с этим очень важно обозначить затраты, которые оплачиваются дополнительно, поскольку данные затраты могут существенно увеличить стоимость строительства яхты. Рекомендую делать в договоре оговорку о том, что список дополнительных услуг, оплачиваемых заказчиком, является исчерпывающим.

Большое значение в договоре имеет раздел о заверениях и гарантиях, что является очень эффективным инструментом, применяемым в английском праве. Считаю, что если у покупателя имеются сомнения в части выполнения договора со стороны исполнителя, эти сомнения должны быть устранены через соответствующие заверения в договоре со стороны исполнителя. Нужно помнить, что стороны вправе урегулировать свои отношения по собственному усмотрению. При возникновении спора суд будет руководствоваться в первую очередь достигнутыми сторонами соглашениями. Соответственно, чем меньше в договоре неопределенности, тем больше шансов, что нарушенное право будет защищено должным образом.

В связи с этим, если предложенный к подписанию проект договора содержит арбитражную оговорку о подсудности спора определенному суду, важно до подписания договора получить консультацию у юриста относительно процедуры рассмотрения дел в этом суде, ее стоимости, стоимости оказания правовой помощи в стране местонахождения суда, длительности рассмотрения дел, репутации суда. Желательно ознакомиться с практикой суда, склонен ли суд к защите интересов заказчика или исполнителя по договору. Высокая стоимость правовой помощи, судебных сборов, чрезмерная отдаленность суда от места жительства стороны, сложности с получением визы для въезда в страну с целью участия в судебном заседании не только могут усложнять возможность защитить свои права и интересы, но и сделают ее фактически недоступной.

Подводя итоги, отмечу, что заключение подобных договоров является сложной процедурой, требующей серьезного анализа и зачастую привлечения юридических команд других стран. Однако затраты, понесенные на юридическую помощь, являются несопоставимо меньшими, чем возможный ущерб и убытки, которые стороны могут понести в результате ненадлежащего оформления своих правоотношений. Поэтому при принятии подобных решений рекомендую обращаться к юристам, имеющим опыт сопровождения таких сделок.

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[1] Российский морской регистр судоходства доступен на http://www.rs-head.spb.ru/ru/index. php

Case law report related to liability of aviation companies [ 2011] Ukraine

1.         Open Joint Stock Company “Siberia Airlines” v. Ministry of Defense of Ukraine, State Treasury of Ukraine [2011] Kyiv Commercial Court, on compensation for material damages caused by aircraft accident, Decision dated September 06, 2011, Сase № 30/261, available from ˂www.court.gov.ua˃

Subject of dispute

Open Joint Stock Company (hereinafter OJSC) “Siberia Airlines” filed to Kyiv Commercial Court the claim against the Ministry of Defense of Ukraine and the State Treasury of Ukraine on collection from the state in the person of the Ministry of Defense of Ukraine of damage incurred in the amount of USD 6,370,777.39 comprising the market value of the destroyed airliner Tu-154M of lost profit in connection with loss of the airliner.

Arguments of Siberia Airlines

The claims are justified by the reason that due to the illegal actions of the Ministry of Defense of Ukraine on October 04, 2001 over the Black Sea the warhead 5B14SH of missile 5V28 fired from air defense missile system S-200V (ground-to-air missiles) by the Ministry of Defense of Ukraine during military exercises of the air defense troops in 31 Testing Facility of the Black Sea Fleet of the Russian Federation in the Crimean Peninsula hit and shot down the airplane Tu-154M that undertook a passenger charter flight SBI-1812 on the route "Tel Aviv – Novosibirsk". As a result of the accident 66 passengers and 12 crew members died.

According to the lawsuit, the fact of shooting down the plane by the defendant was established by the Aircraft Accidents Investigation Commission of the Interstate Aviation Committee for Aircraft Accident Investigation.

The plaintiff believes that the Interstate Aviation Committee is a competent body to establish the reasons of the air crash, since it is an intergovernmental executive body for air traffic and use of the CIS air space established by the CIS member states in accordance with the Agreement on Civil Aviation and Use of Airspace, which was approved on December 25, 1991 in Minsk.

In addition, the issue on payment of compensation by Ukraine to the relatives of the victims was settled at the international level by conclusion of the appropriate Agreements with Israel and Russia, which confirms recognition by Ukraine of its involvement in the air accident.

Arguments of the Ministry of Defense of Ukraine

- the documents provided by the plaintiff do not prove the circumstances referred to by the plaintiff as the ground for its claims;

- in case of establishing the fact of hitting the airliner owned by it, the plaintiff also carried out activities that are the source of increased danger and, therefore, damage was caused by the interaction of multiple sources of increased danger;

- in case of establishing the fact of hitting the airliner, which in the opinion of the defendant is not proven, the plaintiff suffered damage as a result of the defaulting unlawful acts of the Ministry of Defense of the Russian Federation, which carried out activities associated with increased risk for the environment as a result of: "a" management of air traffic in the area of ​​responsibility of the Russian Federation over the open sea, where the accident happened, and "b" management of firing range of 31 Testing Facility of the Black Sea Fleet of the Russian Federation, where on October 4, 2001 the joint exercises of the Air Defense Forces of the Armed Forces of Ukraine and the Russian Black Sea Fleet were carried out, during which the ground-to-air missile was fired.

The defendant’s objections to the lack of evidence proving that the airliner Tu-154M was hit by missile are motivated by the following:

- absence of legislative provisions relating to mandatory nature of conclusions on the investigation of the aviation event conducted by the Interstate Aviation Committee for the court;

- payment by Ukraine of money to relatives of those killed in the crash was made ​​voluntarily without any determination of guilt and responsibility;

- final report on the investigation of the accident does not contain any information on the methods applied during the investigation;

- lack of direct evidence of hitting exactly by the missile of the Air Defense Forces of the Armed Forces of Ukraine;

- contradictions in the report regarding: time of the accident; 

Arguments of the State Treasury of Ukraine

The defendant State Treasury of Ukraine also rejected the claims in full referring to the absence in the State Budget of Ukraine of money for compensation of damage to the plaintiff for the lost airliner.

Conclusions of the court

The causes of the air crash, which questioned the report of the Aircraft Accidents Investigation Commission of the Interstate Aviation Committee for Investigation of Aircraft Accident with the airliner Tu-154M of OJSC “Siberia Airlines”, were examined in the case, in particular the court noted the following:

The Court finds unproven by the plaintiff the circumstances that directly indicate the hitting of airliner Tu-154M by warhead 5B14SH of missile 5V28 of air defense missile system S-200V.

According to the study of indirect evidence the court also failed to establish sufficient data that would clearly prove hitting of airliner Tu-154M by warhead 5B14SH of missile 5V28 of air defense missile system S-200V.

The court believes that lack of this element of the tort evidence the absence of other components of the legal structure and the absence of the fact of inflicting damage as a legal fact, which results in the occurrence of civil rights and obligations.

The court disagreed with the plaintiff's arguments that recognition by Ukraine of its involvement in the air crash is confirmed by the intergovernmental Agreements with Israel and Russia.

The Agreements on Settlement of Claims arising from the air accident, which happened on October 4, 2001, were concluded between the Government of Ukraine and the Governments of Israel (November 20, 2003) and the Russian Federation (December 26, 2003) for the full settlement of claims arising from the air accident, which resulted in the destruction of the Russian passenger plane Tu-154M. These two Agreements provide for settlement of claims of relatives of the victims of the accident through "ex gratia" payments with the participation of the relevant states. These payments do not comprise compensation within the meaning of payment of damage to the victims by the entity that committed the offense. The "ex gratia" settlement is not followed by recognition of legal offence and is not compensation as interpreted in international law.

Court decision in the case

The lawsuit was fully rejected.

2.         Individuals[1] v. Crimean State Aviation Enterprise "Universal-Avia" [2011][2] Court of Appeal of the Autonomous Republic of Crimea compensation of moral damage caused by loss of life due to aircraft accident. Decision dated April 12, 2011. (Information on case number is absent) available from ˂www.court.gov.ua˃

The claims are substantiated by the reason that during bringing of the shift team of SJSC "Chornomornaftogaz" to the installation "Tavrida" the helicopter, which belongs to the defendant, touched by the tail the pillar of boring rig, then took descending turn, turned around 180 degrees, collided with fence and rack, turned over on the right side, broke and burned. It resulted in the death of the shift team, including family members of the plaintiffs.

            According to the decision delivered by the court of first instance, the claims were satisfied and moral damage in the amount of USD 12,500.00 was collected in favor of each plaintiff.

            The court of appeal cancelled decision of the court of first instance, refused the claim for compensation for moral damages, because taking into account that the persons died while performing job duties, such compensation had to be made by the employer, not the carrier.

3.         Individual v. Joint Stock Company "Czech Airlines" [2011] on compensation for material and moral damages. Shevchenkivskyi District Court of Kyiv. Decision dated November 23, 2011. Case No. 2-3336/11 available from ˂www.court.gov.ua˃

In June 2010, the plaintiff acting in her interests and interests of her minor son filed to the court the application, in which she requested to collect moral and material damages from the defendant in her favor. The claims were substantiated by the reason that her minor was an active sportsman in the dance center. In December 2009, the World Championship in sport ballroom dancing was held, and the plaintiff’s son was nominated as a competitor. In the airport of Prague loss of baggage with costumes of the plaintiff’s son, which were intended for participation in the competition, was found. It endangered her son's performance it the competition and, as a result, in the plaintiff’s opinion, her son suffered material and moral damages.

Referring to Article 22(2) of the Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Carriage by Air dated October 12, 1929) the court refused to satisfy the claims for compensation for moral damage. The claims for property damage were rejected as groundless.

4.         Individual v. Karta Mira LLC, Aerosvit Airlines CJSC [2011] on compensation for material and moral damages. Kyiv Oblast Court of Appeal. Decision dated September 07, 2011. Case No. 22-ц-2110/11, available from ˂www.court.gov.ua˃

The plaintiff filed to the court the claim on compensation for material and moral damages. He substantiated his claims by the reason that he purchased from the defendant two air tickets en route "Kyiv-Warsaw"  and return ticket "Warsaw-Kyiv" for February 19, 2010. At 9:00 p.m. on February 19, 2009 on the day of departure of return flight "Warsaw-Kyiv", after arriving in advance to Warsaw airport, he learned from the employees of information desk that four weeks ago the defendant  Aerosvit Airlines CJSC changed the departure time of the flight from Warsaw airport from 9:00 p.m. to 9:00 a.m. on the same day. As a result, he had to go to Kiev by himself by train, spending extra money and time. In view of the foregoing, he requested to collect material damage in his favor from the defendants jointly.

According to the decision delivered by the court of first instance, the claim was satisfied in full, moral and material damages were collected in favor of the plaintiff.

According to the decision of Kyiv Oblast Court of Appeal, decision of the court of first instance was canceled and a new decision was delivered, which granted the claims in terms of recovery of material damage from the defendant. As regards compensation for moral damage the lawsuit was rejected.

Refusing to satisfy the claims on compensation for moral damage the court of appeal referred to Article 22(2) of the Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Carriage by Air dated October 12, 1929), which in the opinion of the court, does not provide for compensation for moral damage.

 Prepared

A.Herasymiv, attorney at law at Ilyashev and Partners

R.Marchenko, Senior Partner  at Ilyashev and Partners

A.Litvyn, attorney at law at Ilyashev and Partners

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[1] In the Unified State Register of Court Decisions name and surname of an individual is not specified. Instead it is noted: Person 1, Person 2, etc.

[2] As regards this air accident courts considered twelve cases of victims on compensation of moral damage, in which the courts reached similar conclusions.