Legal results of the year: which legal cases had the greatest impact on the industryJanuary 12, 2021 · Publications
Change is always painful. Especially when you have to break the old bureaucratic system and build the rules of the game that meet international standards. Each victory is difficult, but it also improves the business environment. We have collected the most significant case studies from Legrant's practice that influenced the maritime industry in the past year. And let's start, of course, with the litigation.
Anchorage at the roadstead for the price of a full-fledged call
Is it possible to stand in the roadstead while waiting for loading, then leave due to changed circumstances to another port, but at the same time pay the same fees as during cargo operations? It turns out you can. According to the agreement with the Seaport Authority (USPA), the sea agent transfers funds long before the ship call on a full prepayment basis. At the same time, the final bill of the USPA should reflect the cost of the services actually provided to the ship at the end of the call. Also, in accordance with the order of the Ministry of Infrastructure No. 316, a ship that anchored, does not load or unload and then proceeds to another port is exempt from paying administrative, ship and sanitary dues.
However, in a recent Legrant case, the USPA refused to return the money, citing the fact that the original purpose of the call was cargo operations. Therefore, the subsequent changes in the target after the ship's entry into the port no longer matter, as well as the very fact of carrying out cargo operations. Quite an interesting argument, which in a mirror situation would have caused a completely different reaction from the USPA. For example, to declare the purpose of the call to sludge or repair the ship, while carrying out the RRP and thus save thousands of dollars on the call.
There were other attempts to defend their position, for example, the assertion that the sea agent is an inappropriate plaintiff, since we are talking about the money of the ship owner. But at the same time, the USPA is modestly silent about the fact that it has entered into an agreement with the agent, which means that the agent should be responsible for failure to fulfill its obligations under the Agreement.
At the same time, the court assessed the factual circumstances of the case and, based on the provisions of the Agreement and the Order, rejected the arguments of the USPA.
Vessels that call at the port of Mariupol in winter face a rather unusual situation. The only icebreaker in Ukraine "Kapitan Belousov" is based in the Sea of Azov, which is financed by the port's clients. However, to the payments that are really necessary for the maintenance of the vessel and ensuring its operation during the freezing of the water area, new ones began to be added, the purpose of which is not entirely clear.
There is a statutory service with a rather vague wording - "ensuring the conduct of icebreaking operations." A fee is charged for it - $ 0.29 per cubic meter of the conditional volume of the vessel at each entry and exit from the water area. This rate applies if the weather is favorable until January 31st. Then you need to pay $ 0.29 within 30 days, starting from February 1.
If an ice campaign is announced in Mariupol, then during the period of its holding it is necessary to pay $ 0.5. And after its completion, no payment is provided by law. Nevertheless, the USPA demanded money from five naval agents after the end of the ice campaign. The result is quite natural - a trial and a decision in favor of the business.
Calls to several Ukrainian ports during one voyage
One of the ways to attract cargo flows to ports is incentive measures, for example, discounts. Thus, the order of the Ministry of Infrastructure No. 316 dated May 27, 2013 offers ships of overseas navigation a discount when paying administrative and ship dues for successive calls at two or more Ukrainian ports. The administrative fee is charged only in the first port, and the shipboard is charged at a rate of 50% in each port.
But it is not enough to be eligible for a discount. You also need to be able to use it. The USPA found many grounds for refusal. The ships, you see, were moving along the waterway, which, according to the Law on Seaports, is not part of the water area, and thus did not enter the water area of the port.
And what about cargo operations? Yes, they were generally carried out outside the water area. One of the points of loading and unloading was the terminal of the Black Sea Shipbuilding Plant (ChSZ), and the second was the roadstead port point (RPP) No. 2. And although both sites are included in the relevant registers and the set of mandatory regulations for the port, this did not make an impression on the USPA. As well as the fact that if the vessel did not enter the port, the administration would have no reason to charge port dues at all - with or without a discount.
But the court took into account these arguments and was guided by the norms of the law. The USPA tried, however, to refer to the lack of cargo operations, but our clients had supporting documents, and therefore the arguments of the state monopoly were also rejected.
As a result of this complex work, shipowners received an effective mechanism for protecting the right to a discount.
Access to the pier
The Nikolaev port operators, who operated berths on the basis of easement agreements, faced this problem. The USPA unilaterally stopped accepting the fees stipulated in these agreements and persuaded private businesses to sign contracts for using the operator's specialized berth access service (the cost of which is three times higher than the easement). Since there were few willing to agree to much less favorable terms, the state monopoly did not think of anything better than ... to try to terminate the easement agreements through the courts.
After lengthy proceedings, the Supreme Court put an end to the dispute, which in September confirmed that all easement agreements were legal and there were no grounds for their termination. The Antimonopoly Committee of Ukraine also confirmed the correctness of business, which recommended that the USPA stop imposing a special service that is disadvantageous to operators, taking advantage of its position.
We have already mentioned the Antimonopoly Committee in the previous case. His work can be a very effective defense against abuse by monopolists. This is confirmed by the recent case on the registration of arrival and departure at the port, which is included in the port dues. The USPA tried to introduce the practice of double tariffication and formalize it as a separate service at free rates. However, the Antimonopoly Committee, as a result of its own research, revealed that this was a direct violation of the law, and fined the state-owned enterprise.
Attempts by the USPA to challenge it in court ended with the decision of the Northern Economic Court of Appeal of November 3, 2020, according to which the USPA complaint was dismissed. And we believe that the service for double recovery of losses will be very relevant for business in the near future.
A similar problem arose during the transshipment of goods from one vessel to another by the side-to-side option. In such cases, almost all the work is done by a private business. However, the USPA decided to charge a fee for “organizing the service”, to which it has practically no relation, since everything that ships do is already paid as part of port dues. And it all ended with the decision of the Antimonopoly Committee to terminate the tariffication of a non-existent service and, of course, a fine. The story was continued in court, which quite naturally upheld the decision of the antimonopoly regulator and ordered the USPA to comply with it.
Free market for pilotage services
Another illustrative example is the problem of opening the market for pilotage services. Earlier, the department issued its recommendations, since the service can theoretically be provided by a private pilot company, however, all regulations in one way or another "adjust" it to the state structure - a branch of the USPA "Delta Pilot". But the ministry's failure to comply with the AMCU recommendations deprives business of the opportunity to gain access to the market, and therefore we do not exclude that the story will continue.
We see a large number of cases that have set precedents in the industry and provided businesses with an opportunity to defend their rights. However, the root of the problem lies in the legislation, which provides opportunities for its free interpretation and the adoption of conflicting decisions. We hope that in the new year, the authorities, in particular, the Ministry of Infrastructure, will take into account the results of high-profile litigation and antitrust proceedings in their regulatory policy. And in parallel, the USPA will scale conclusions on these cases on relations with all contractors, without waiting for new claims and complaints to the Antimonopoly Committee.