Title

    UNILATERAL DECISION OF THE TERMINAL TO TRANSFER THE GOODS TO ANOTHER TERMINAL - WHERE THE AVERAGES OCCURRED – SURVEYS PERFORMED AT TWO DIFFERENT AND DISTANT PLACES - PROBATORY VALUE OF THE SURVEY CERTIFICATE – OPPOSITE INTERESTS BETWEEN INSURANCE COMPANY  

Allianz Ras Argentina S.A. de Seguros Generales vs Terminales Rio de la Plata S.A. – File 204/00, Federal Court of Appeal in Civil and Commercial matters, III, 13th of october, 2005.- Buenos Aires, Argentina.

UNILATERAL DECISION OF THE TERMINAL TO TRANSFER THE GOODS TO ANOTHER TERMINAL - WHERE THE AVERAGES OCCURRED – SURVEYS PERFORMED AT  TWO DIFFERENT AND DISTANT PLACES - PROBATORY VALUE OF THE SURVEY CERTIFICATE – OPPOSITE INTERESTS BETWEEN INSURANCE COMPANY AND INSURED AT TIME OF SURVEY - NO INVITATION TO PARTICIPATE IN VERIFICATION - CRIMINAL ACT TO SIMULATE AVERAGES

Background

The ship “Paraguay Express” arrived to the terminal “Terminales Río de la Plata” (TRP, a company owned by Dubai Ports World), at the port of Buenos Aires, from Miami, USA, on 22 may 1998, transporting two flat rack containers with a liquid cooling equipment for the textile industry each one. At the moment of discharge, the terminal gave to both containers note of “good condition”. Later, the terminal decided unilaterally and without any consultation with the owner of the equipments, to send the containers to a different custom warehouse –TCO-, within the port area.

The distance between the terminal and the custom warehouse was less than 2 kilometers, and the transportation was made by a truck company –Loginter- contracted by TRP.

When TCO received the two containers from TCR, observations for each container were included in the Interchange Receipts, pointing out damages on one equipment switchboard, and damages on the rubber cover of the other equipment.

With the participation of a surveyor for the shipowners and other surveyor for the insurance company (Allianz Ras) both equipments were verified at TCO warehouse, before dispatch. Due to the difficulty for this survey, as the equipments were of an important big size and were still in their respective flat rack containers , both surveyors agreed to continue the verification in the final destination of the containers, which was more than 1,100 kilometers from the port of Buenos Aires, in the Province of La Rioja.

An act was redacted and signed by both surveyors. No representatives from TRP and TCO were present at the survey, nor in Buenos Aires either in La Rioja.

Important damages were verified in La Rioja.

Regarding the equipment with damages in the rubber cover, the surveyors found a total break of the motor compressor. They also found that a special gluey cement had been applied in order to simulate the damage in a kind of criminal action.

TRP, TCO and Loginter argued that the damages found in La Rioja were different from those which had been found in TCO by the surveyors and that these damages could have been produced during the trip Buenos Aires-La Rioja. Therefore, they stated that they were not liable as the containers were not under their custody during the transference to La Rioja.

TRP arrived to an agreement with Allianz Ras related to the container with the equipment with the switchboard damages.

Allianz as subrogated party promoted a claim for aprox. us$ 150,000 related to the equipment with the damaged motor compressor, which obliged to import new parts.

Judgment

After the Federal Judge of First Instance dismissed the plaintiff´s claim, the Federal Court of Appeal, Buenos Aires, Argentina -where this Court act as an Admiralty Court- revoked the previous decision and accepted the plaintiff claim.

These points were considered relevant:

1)       The Court of Appeal concluded that the damages found in La Rioja were not different from the damages which had been found in the port of Buenos Aires (TCO) and, in any case, the damages found in La Rioja and in the port of Buenos Aires were both produced in the same occasion.

2)       The facts described in the survey acts were considered true, notwithstanding that there were no representatives of TRP and TCO during the verifications. The Court understood that no persuasive element was brought by TRP and/or TCO which could conduce to doubt of this authenticity. The Court stated that the Insurance Company´s surveyors, at the time of the survey, had opposite interests to those of the insured consignee. These contrary interests give probatory value to the survey. This is an habitual Jurisprudence of the Federal Court.

3)       Related to the place were the average occurred, the Court considered that the containers arrived to the port of Buenos Aires with note of good condition, and these containers were retired from TCO with observations of bad condition. The Court concluded that the damages occurred some place between the Terminales Rio de la Plata warehouses, and the TCO warehouse, period within TRP had the legal custody of the containers. The sentence considered that the plaintiff´s claim was not directed against TCO and Loginter and only against TRP, as the two first parties entered in the file just because TRP asked for their compulsory participation as third parties. The Court accepted the claimant position as follows: the plaintiff had stated at the moment of his presentation that TRP, TCO and Loginter should have to resolve among them in what physical place the average was produced and that he –the claimant- was not obliged to determine such fact.  The plaintiff had added that considering his relation with TRP, this party was liable independently of the place where the damages were produced. The Court of Appeal accepted this position and added that eventually TRP might afterwards claimed against the specific party –TCO or Loginter -.

Our office –Dr. Ferder and Dra. Toporovsky- represented Allianz Ras in the suit.

The Supreme Court of Justice has recently dismissed an appeal from TRP and TCO against this decision.

 

 

 

 

 

 

 

 
Author
Eduardo L. Ferder
 
Pages: 1 
Total: 1


   
   
   

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