The Court once again reminded the Ukrainian Sea Ports Authority, how the coefficient 0.7 should be applied for calculating the cost of special service for access to the berths.April 3, 2019 · News
We recall that in the Order of the Ministry of Infrastructure of Ukraine No. 541 of 18.12.2015, by which were approved the tariffs for special service for access to the berths of the Ukrainian Sea Ports Authority, was identified the reduction coefficient of 0.7 (in other words, 30% discount). Such coefficient applies whether the grain cargoes are transferred in bulk at specialized terminals with the help of loading machines with the performance capacity of over 500 tons / hour.
Immediately upon the adoption of the Order, the Ukrainian Sea Ports Authority “refined” the norms of the regulatory act, informing the stevedores that the discount will be applied only in case of the achievement of the actual performance capacity of the machines, calculated according to the formula proposed by the Administration, based on the Statement of Facts (SOF).
As early as in 2016, LEGRANT was the first former of the judicial precedent, proving the Client’s right to apply a discount. The Economic Court motivated its decision by a detailed explanation the norm of the regulatory act. The criteria for determining the performance capacity of the loading machines should be the constants, permanent characteristics of such machines, but not the situational actual performance capacity. Therefore, while determining the right of each individual port operator to use the Coefficient of 0.7, it should be guided the indicator of the performance capacity specified in the technical documentation by the machine manufacturer.
Based on this court decision, LEGRANT also charged the amount of the unlawfully unpaid discount on behalf of the Client.
However, in the beginning of 2018, the Ukrainian Sea Ports Authority renegotiated with port operators the agreements regarding access to berths. And although the agreement did not change in any way and could not change the order of discount’s granting, the Administration, referring to the emergence of "completely new legal relations", again refused to provide the discount based on the technical performance of the machines.
Whereas the Client of LEGRANT, paid for the cost of the special service taking into account the 30% discount pursuant to the valid court decision, the Ukrainian Sea Ports Authority filed the suit for the charging of “underpayment” sums.
Upon the decision of the Commercial Court of the Odessa region, the lawsuit of the Ukrainian Sea Ports Authority has been dismissed. Court motivated its decision and supported the position of LEGRANT. Court noted that the new agreement was identical to the previous one in terms of the procedure for calculating the cost of the special service. The non-application by the Ukrainian Sea Ports Authority of the court’s decisions leads to systematically repeated violations of the application the 0.7 Coefficient, which is directly set by the Tariffs, and in fact is a disregard of the principle of legal certainty by the Ukrainian Sea Ports Authority.
Lyudmila Sizonenko the Senior Lawyer of LEGRANT under the overall guidance of Tatyana Titarenko, the Managing Partner of LEGRANT, accompanied such case.