This was a claim brought by Tander JSC (the claimant) against Novorossiyskaya Morskaya Konteynernaya Kompaniya LLC (the defendant) for compensation for damage to the cargo.

The claimant and defendant concluded a freight forwarding contract under which the defendant was obligated to organise transportation of a cargo of vegetables and fruit in reefer containers. The defendant issued a combined waybill under which the cargo was transported from Ashdod, Israel, to Novorossiysk, Russia.

On 6 May 2016, the containers were loaded onto the Asiatic Glory 301. A bill of lading was issued. There was no indication of the cargo condition either in the bill of lading or in the combined waybill. On 16 May 2016, the containers were delivered to Novorossiysk. On 18 May 2016, the cargo was loaded onto a vehicle to leave the port. On 19 May 2016, a surveyor, on behalf of the claimant, notified the defendant that the cargo was damaged during its storage in the port from 16-18 May 2016 due to a break in the temperature regime in the containers.

The Court of first instance found in favour of the claimant in full. The Court of Appeal upheld this judgment. The defendant submitted a cassation appeal.

The defendant argued that since the cargo condition was not indicated in the bill of lading or combined waybill, it was not proved that the cargo was in good condition when loaded onto the ship. The defendant was not liable for the damage to the cargo if it was transported in the properly sealed container. The protest that the cargo was damaged should have been sent by the claimant itself and not by its representative, according to art 19.1 of the Hamburg Rules.

Held: The cassation appeal is dismissed.

Under art 801 of the Civil Code of Russia (the CC RF), the freight forwarders' obligations are determined by the parties' agreement. If the freight forwarder undertakes to perform carriage, it is liable for this carriage as a contractual carrier under art 785 of the CC RF. Since it was indicated in the contract that the defendant was obligated to ensure the safe storage of the cargo in the port of Novorossiysk, the defendant is also responsible for this storage.

According to art 3.3.c of the Hague Rules, the carrier, on the request of the shipper, issues a bill of lading upon the acceptance of the cargo. Under art 16.2 of the Hamburg Rules (even though Russia is not a party to the Rules), if the carrier did not indicate the condition of the cargo in the bill of lading, it is presumed that the cargo was accepted in apparently good condition. Since there was no indication of the cargo condition in the combined waybill, it is presumed that the defendant accepted the cargo in apparently good condition.

Pursuant to art 401 of the CC RF and art 65 of the Commercial Procedure Code of Russia, the obligation to prove that the carrier is not liable for the damage to the cargo lies upon the carrier. Therefore, the defendant should have proved that it was not at fault. The defendant failed to do so. Even though the claimant did not notify the defendant of the alleged damage to the cargo and did not offer to conduct a joint survey, the survey report produced by the surveyor appointed by the defendant was sufficient evidence of the defendant's fault.

Finally, the Court found that it was clear that the surveyor sent the protest regarding the cargo damage on behalf of, and in the interest of, the defendant. It is indicated in the protest that the surveyor is the representative of the defendant. The violations found also clearly followed from the surveyor's report attached to the protest. The fact that the protest was sent not by the defendant itself but by its representative does not contradict art 19.1 of the Hamburg Rules.