If the real damage for the loss of a thing is recovered, is it possible to achieve lost profits?

The Economic Court Supreme Court decided that the Kamchatka company can not recover from the RF Ministry of Defense 16 million rubles. of the under-received income from the sale of a floating ship sunk during the storm at the military unit through the fault of its officials. And all because of the fact that she has already received 720 000 rubles. real damage for the same violation, said the “three”.

The Economic Court of the Supreme Court explained why Kamchatka’s “Palana Industrial and Transport Company” raquo; (PPTC) can not claim 16 million rubles. loss of profits for the loss of a floating dock purchased by the Defense Ministry officials for scrapping.

It all started on October 8, 2009, when FSUE « State Enterprise for the Sale of Military Property » sold PPK for 720 092 rubles. at the open auction, an undivided scrap from the dock &TPD-43 &raquo ;. This boat was excluded from the fleet and was scrapped in 1992. PPTK decided to hand over the purchased dock to scrap metal and on May 15, 2011 agreed with LLC Akvaet + » that the latter will render it services for lifting from the bottom and towing the boat to the cutting point for 8 million rubles.

And on June 7 of the same year also concluded a supply contract with LLC “Omega”, in accordance with which she pledged to deliver the last scrap for 17.1 million rubles. The delivery time was determined from June 10 to June 22, 2011, and in case of its violation, PPTC was to pay a penalty fee at the rate of 0.1% of the total cost of the goods for each day of delay.

However, the company’s hopes did not materialize. It turned out that in the dock there is an experienced deep-sea vehicle “Search-6”, in relation to which the question of removing the seal of secrecy has not been resolved, and therefore, it is impossible to cut scrap metal before this time. And as a result, on June 23, 2011, the disputed property was towed by the company « Aquamet + » at the expense of PPTK means for parking to the pier near the military unit and was transferred to the responsible custody of the commander.

Quickly solve the issue with the stamp of secrecy did not work, and in February 2012 the dock did sink during the storm at the pier of the military unit. And, as experts have established, raising it from the bottom already has no meaning: the financial costs will be too large.

Then in October 2012, PPTK went to court to recover from the Ministry of Defense of the Russian Federation 28.8 million rubles. losses from loss of disputable property, referring to the fact that the officers of the military unit did not ensure its proper storage (No.=”_ blank”> A24-4294 / 2012 ). However, the courts reduced this amount to 720,092 rubles. – of the initial value of the disputed property under a contract with the state enterprise.

PPTK appealed to Arbitration Court of the Kamchatka Territory with another lawsuit against the ministry, within which demanded to pay her 39.1 million rubles. (№ А24-2619 / 2014 ). This amount included the cost of lifting and towing the dock to the military unit (7 million rubles.); lost profit in the form of lost revenue from the sale of the dock (16.4 million rubles. “The difference between the planned income from the sale of scrap metal under the supply agreement with Omega » in the amount of 17.1 million rubles and the cost of purchasing a boat from the state enterprise in the amount of 720,092 rubles.); as well as the costs of payment of penalties under the same supply contract for the period from June 23, 2011 to April 30, 2014 (15.6 million rubles.)

As a result, all three instances decided to recover from the Ministry of Defense in favor of PPTK only 23.4 million rubles. First of all, the company, in their opinion, deserves the whole amount of lost profit, since the flooding of the floating craft was due to the fault of the officers of the military unit, as well as 7 million rubles. Penalties.

But the rest of the penalty and 7 million rubles. The ministry should not pay the cost of raising a dock from the bottom, the courts decided. First amount – because the company, having learned of the flood, did not take sufficient measures to terminate the obligations under the supply contract with “Omega”. And the second – since these expenses do not concern the illegal actions of the Ministry of Defense.

« The long chain of relations courts began to explore from the end, without giving a comprehensive assessment of the initial stage – conclusion of an agreement on the sale of property at public auction, “comments partner law firm Infralex » Artem Kukin . In his opinion, it was necessary to evaluate the circumstances of the sale of property.  Property sold at public auction, assumes its legal « clearing » and the absence of any encumbrances , – says Kukin. –  The fact that the property including the secret facility was sold is a violation of the procedure for the sale of military property, therefore, the courts should consider the responsibility of the Ministry of Defense just for this violation. 

One violation – one loss

The economic board of the Supreme Court decided to take up the matter. There, the representative of the Ministry of Defense insisted that, in accordance with Part 2 of Art. 902 of the Civil Code of the Russian Federation, the custodian reimburses the loss of things in the amount of their value, and this ministry has already made A24-4294 / 2012 within the framework of the previous dispute, paying PPPK 720 092 rubles.

And from the obligation to compensate 16.4 million rubles. lost profits in the form of lost revenue from the implementation of the dock, the court must release the ministry, the ministry’s lawyer assured the economics board. He motivated it by the fact that at the time of the conclusion of the contract for the supply of PPTC with « Omega » the real cost of the floating craft could not be established: the contract was concluded on June 7, 2011, and the initial towing of the dock was a little later. 23 June. And anyway, he insisted, the guilt of the military unit in the ship’s flooding is gone, and the whole reason is – force majeure circumstances.

As a result, the troika of the Sun ( Olga Kozlova , Denis Kapkaev and Galina Kireykova ) decided all acts of subordinate instances in terms of recovery from the Ministry of Defense 23.4 million rubles. and cancel refusal in the requirements of PPTC ( more > > ). Her motives, she explained in a published last week definition .  Having filed a lawsuit (case No. A24-4294 / 2012) on recovery of damages, the size of which, like in the present case, is determined by the value of the lost object of purchase and sale, the company exercised its right to their compensation and received judicial protection of its violated right as a result of unlawful actions of officials of the Ministry of Property Transfer » , – the definition of the Sun says. This means that the right to recover damages arising in this case arising from the same violation (« illegal actions of officials of the Ministry for the transfer of property under the contract of sale from 2009 that did not ensure its proper storage) is missing, summed up « triple ».

Such a formulation creates a legal collision, commented Ekaterina Kuznetsova, a lawyer at the law firm « Intellectual capital » . According to the economic committee, in accordance with Art. 902 of the Civil Code of the Russian Federation on the responsibility of the custodian under the contract of free storage in case of loss of the thing, only losses are incurred in the form of the value of the thing, and the lost profit – no, she says. At the same time, point 3 of this article indicates the possibility of refusing a thing when it is damaged, as well as recovering its value and other damages. « Thus, from the logical and systemic interpretation of Art. 902 of the Civil Code of the Russian Federation, it follows that when a thing is lost, not only the value of the thing is liable to collection, but also “other damages”, which, in turn, include lost profits, – Kuznetsova argues. – The Economic College preferred a literal approach and in fact created a legal collision: if a thing is damaged from it, you can refuse and recover the cost and other damages, and if you lose – only cost ».

 Based on the text of the definition, we can conclude that the subject and the grounds for the original and new claims coincide, – notes managing partner of law firm « Prime ligue » Arik Shabanov . – However, PPTC stated a requirement that coincides on the grounds with the original, but with different subject matter [in the first case – this is real damage; in the second – lost profit]. 

As to the size of the claims, then, in Shabanov’s view, the courts had no reason to assume that the amount specified in the supply contract can not be considered a lost profit.  The court must proceed from this amount, because by virtue of Art. 10 Civil Code of the good faith of participants in the civil process is assumed , – he explains.

09.08.2015 Content from https://pravo.ru/review/view/121816/