Publications
In Ukrainian realities, debtors, wishing to evade the fulfillment of obligations to creditors, resort to dissolution or renewal of marriage in order to grant the pledged property the status of a joint property and avoid levying execution on it.

Olena Sibirtseva, Senior Associate at AGA Partners
(exclusively for Yurydychna Praktyka)

This article is available in Ukrainian only.

Link to the source

17.12.21
In the article, AGA Partners lawyers will show their legal perspective on who is responsible for the loss of the cargo.

Dmytro Koval, Senior Associate at AGA Partners
Pavlo Lebediev, Associate at AGA Partners
(exclusively for APK-Inform)

The Greek Coast Guard has suddenly received a distress call: in the Sea of Crete, a huge vessel has collided with another ship and is steadily going under the water. The Chief of the Coast Guard immediately instructs two patrol boats and a military helicopter to rescue 16 crew members who have already sent numerous calls for help. Due to the prompt and desperate reaction of the coast guard, they have been rescued from the vessel and taken to the nearest city in Greece. But the vessel together with 7,000 tons of Ukrainian wheat was not that lucky – it has eventually gone to the bottom of the Cretan Sea.

Do you think this is a teaser for a new Hollywood movie? Not at all! Recently this event has actually shaken up the mass media becoming a subject matter of lively discussion. It has also raised several questions interesting from a legal point of view for those involved in international trade.

Will the seller receive the payment for the shipped and subsequently lost goods? Who is responsible for the loss of the cargo: the buyer or the seller of the goods? Or can the insurance company compensate for the incurred losses?

These questions are frequently posed to all those trading commodities – so, let's figure out who ultimately bears losses in this rather difficult situation!

ENGLISH WISDOM

At a first glance, a shipwreck may seem like an extraordinary event that rarely appears on the front pages of the newspapers. However, in fact, cargoes are lost during the sea voyages almost every day. According to Bloomberg, only in 2020, more than 3,000 containers of sea lines went under the water! As a result, lawyers specializing in international trade quite often encounter cases about the loss of the cargo during their carriage by sea.

Since the vast majority of international trade transactions is carried out under English law, its precedents set global trends in these matters. Ironically, the trends continue to be largely based on those rules devised by English courts over a hundred years ago.

MEETING ON THE ELBE
 

Inglis v Stock is a landmark dispute on the loss of cargo due to a shipwreck, which was examined by the House of Lords in far 1885.

In this case, parties concluded a contract for the sale of 200 tons of sugar, which were to be shipped at the port of Hamburg on FOB terms (a buyer charters a vessel ship and a seller loads the cargo into it). Upon loading of the goods in Hamburg, the vessel set off in the direction of Bristol. But during the voyage on the Elbe, she unexpectedly went underwater. Despite that, the seller tendered shipping documents for the goods and the buyer made payment against them.

Since the buyer did not receive the purchased goods, it applied to the insurance company with a demand to reimburse its losses caused by the loss of the cargo. The insurance company refused to pay compensation, which led to legal proceedings between them. As a result, the English courts had to figure out who was ultimately responsible for the loss of the goods.

After several rounds of legal battles, the House of Lords established the basic principles of transfer of risks under the FOB contracts:

(1) once the seller has loaded the goods on board the vessel, all risks pass to the buyer,

(2) accordingly, upon receipt of the shipping documents, the buyer must pay for the goods, even if they were lost during the sea voyage,

(3) the buyer is entitled to recover its losses under the insurance policy if it covers the risks in question.

As a result, the English court upheld the buyer’s claim in this dispute and ordered the insurance company to pay the buyer compensation for the lost cargo.

This precedent shows that in the case of loss of goods during their carriage by the sea – either by vessel or by containers – the following questions are crucial to establishing which party is liable for the losses.

WHAT IS THE BASIS FOR THE DELIVERY OF THE GOODS?
 

The answer to this question can be found in your contract – in most cases, the delivery will be executed on the terms of 'Cost, Insurance, Freight' (CIF) or 'Free on Board' (FOB).

For CIF deliveries (and their modifications – CFR, CIFFO), the seller charters the vessel and loads the cargo. FOB terms have a significant difference – the buyer organizes transportation by sea and the seller must load the goods into the vessel.

Despite this fundamental difference, the FOB and CIF terms are equivalent in terms of the risk transfer – the risk shifts when the goods are loaded onto the vessel . In other words, as soon as the goods have crossed the ship's rail, the seller can relax since the buyer undertakes all the risks connected with the sea voyage.

IS IT NECESSARY TO PAY FOR THE LOST CARGO?
 

In international trade, a buyer naturally expects that it is purchasing certain goods when concluding a CIF or FOB contract. But surprisingly, from a legal point of view, it is not the goods that are purchased but the documents for them .

This rule is explained by the legal peculiarities: the buyer normally must pay for the goods after receiving the shipping documents specified in the contract. And it does not matter for the buyer’s payment obligations whether the ship eventually arrived with the cargo at the port of destination or not.

This legal feature leads to a very interesting consequence: once the goods are loaded and the documents are tendered, the buyer must pay for the cargo, although it may never receive the goods if they are lost during the sea voyage.

DIDN’T YOU FORGET ABOUT THE APPROPRIATION OF THE GOODS?
 

For CIF deliveries under the terms of the International Grain and Feed Trade Association (GAFTA), it is also important whether the seller has fulfilled his obligation to appropriate the goods.

Usually, buyers purchase not a specific product but goods of certain description (for example, Ukrainian wheat). Accordingly, after loading the cargo onboard the vessel, the seller needs to determine the specific goods that are supplied to the buyer under the contract. To this end, the seller must send the buyer a special notification (“appropriation”) with the name of the vessel, the loading port, at least the approximate amount of the loaded goods and the date of loading (which must fall within the period specified in the contract).

In any event, the appropriation notice must be submitted within the contractual period – even if the cargo is lost during the sea voyage. As a consequence, if the seller tenders shipping documents but fails to appropriate the lost goods within the specified time, the buyer will be entitled to refuse to pay.

WHO IS THE OWNER OF THE GOODS?
 

When determining who is responsible for the loss of the goods during the sea voyage, it does not matter who is the actual owner of the goods.

This is explained by the fact that the risk of loss/damage and title to the goods can transfer at different times. Quite often, the risks are transferred to the buyer at the loading of the goods but it becomes their owner only after the full payment.

Thus, the ownership and the transfer of risks exist independently of each other. For this reason, the identity of the owner is not critical in establishing who is responsible for the loss of cargo.

Notably, it was this argument that played a key role in Inglis v Stock mentioned above and led to the liability of the insurance company for the loss of the goods.

ARE THE GOODS INSURED?
 

For such a complex situation, still, there is an efficient means of protection – to obtain the insurance of the risks of loss of and damage to the cargo during the sea voyage.

If the buyer is forced to pay for the lost goods, it will get a chance to receive compensation for its losses from the insurance company. The terms of the insurance policy are of fundamental importance here as they will decide the fate of the compensation in such a dispute.

OUTCOME
 

In case of any accident during the sea voyage, every hour is worth its weight in gold. It is critical to take the right and timely measures so that your company does not become the one responsible for the unfortunate loss of the cargo or its deterioration. In this situation, these are experts in international trade law who can save your company from an unexpected storm in your business.

01.12.21
Article by AGA Partners partner Iryna Moroz for "Yurydychna Hazeta".

This article is available in Ukrainian only.

Link to the source

28.09.21
After getting education in England and being acquainted with the English legal system, Aminat Suleymanova realized that her way is to go into the field of international dispute resolution. She wanted to build a company whose specialization would allow her to do interesting and extraordinary things. Of course, there were many difficulties. AGA Partners has come a long way.
Managing Partner of AGA Partners Aminat Suleymanova in an exclusive interview for Yurydychna Gazeta.

This article is available in Ukrainian only.

Link to the source

25.08.21
Agreement on determining the child's place of residence and ways of participating in it's upbringing

Olena Sibirtseva, senior associate at "AGA Partners" (exclusively for Ukrainian Bar Association)

This article is available in Ukrainian only.

Link to the source

20.07.21
The new reality, in which we are now, has opened up a lot of new interesting opportunities in international arbitration.

Aminat Suleymanova, Managing Partner at AGA Partners (exclusively for "Yurydychna Praktyka")

This article is available in Ukrainian only.

Link to the source

02.06.21
What is the procedure for concluding an agreement on the termination of the payment of alimony? Does such a contract exempt from paying additional costs for the child? Let's consider the basic rules and necessary documents for concluding such a transaction.

Olena Sibirtseva, senior associate at AGA Partners
Zoltan Rusanyuk
(exclusively for "Yurydychna Hazeta")

This article is available in Ukrainian only.

15.03.21
Senior associate at AGA Partners, attorney-at-law and member of Ukrainian Bar Association Elena Sibirtseva about the marriage contract in Ukraine.

The whole truth about the marriage contract in Ukraine. What are the consequences of not concluding a marriage contract and how will the division of spouses property under such circumstances? This question is answered by senior associate at AGA Partners, attorney-at-law and member of Ukrainian Bar Association Elena Sibirtseva.

Link to the source

11.02.21
Sports law is gradually coming to its senses after the stunning events of 2020. The coronavirus pandemic has led to rapid significant changes in this area, which is traditionally considered quite conservative. As sport became one of the first "victims" of the pandemic, many updates were made to the rules of organization and holding to resume competitions. As a result, 2020 opened a new, qualitatively different stage in the development of sports law.

Dmytro Koval, senior associate at AGA Partners
Pavlo Lebediev, associate at AGA Partners
(exclusively for "Yurydychna Hazeta")

This article is available in Ukrainian only.

20.01.21
How has 2020 affected customer service? Will the lawyers return to the offices from 9:00 am till 6:00 pm? What does business expect from arbitration? What problems did the agricultural market face this year and how to solve these problems?

Ivan Kasynyuk, partner at AGA Partners (exclusively for "Yurydychna Hazeta")

This article is available in Ukrainian only.

Link to the source

19.01.21
Our managing partner Aminat Suleymanova summed up the results of 2020, commenting on the impact of the pandemic on the legal market, innovations in practice, and also gave some useful advice on how to get through this difficult time.

Aminat Suleymanova, managing partner at AGA Partners
(exclusively for UBA)

This article is available in Ukrainian only.

15.01.21
Aminat Suleymanova shared her rules of life, some secrets and features of her success.

Aminat Suleymanova, Managing Partner at AGA Partners (exclusively for "Ukrainian lawyer")

This article is available in Ukrainian only.

Link to the source

29.12.20
Pavel Lebediev shared his view on restrictions applied by Ukraine on exports of certain wood products to the EU.

Pavel Lebediev, associate at AGA Partners
(exclusively for "UNIAN")
Recently the arbitration panel constituted under the EU-Ukraine Association Agreement has rendered a landmark decision regarding restrictions applied by Ukraine on exports of certain wood products to the EU. What happened and why this decision is important not only for Ukraine and the EU, but also for the development of international trade law as a whole was analyzed and commented by our associate Pavel Lebediev.
 
This article is available in Russian only.
 
22.12.20
In the article, AGA Partners lawyers will show their legal perspective on the impact of global changes in 2020 on the corn market.

Ivan Kasynyuk, Partner at AGA Partners
Dmytro Koval, Senior Associate at AGA Partners
(exclusively for APK-Inform)

This article is available in Russian only.

18.11.20
The great changes in the global economy caused by the COVID-19 pandemic have significantly affected the established relationships between business partners. More frequent cases of failure to fulfill contracts for reasons beyond the control of the parties. Ivan Kasynyuk, Partner at AGA Partners, spoke about how this situation affected the state of the international arbitration market.

Ivan Kasynyuk, Partner at AGA Partners (exclusively for "Yurydychna Praktyka")

This article is available in Russian only.

Link to the source

05.11.20
In this article, AGA Partners lawyers will tell you in detail about the rules of financial fair play based on the decision of Manchester City FC against UEFA. As well as the procedure for resolving disputes between football clubs and UEFA in international sports arbitration.

Dmytro Koval, senior associate at AGA Partners
Yurii Bedenko, associate at AGA Partners
(exclusively for "Ukrainian Bar Association")

This article is available in Ukrainian only.

21.10.20