Genesis of the Problem
What document is to be arranged between a payer (P&I Club or Shipowner) and a payee (seafarer or his/her next of kin) in personal injury/death matters?
This question had been arisen in the middle of nineties in Ukrainian shipping industry. While the parties came to a settlement of disability or death compensation P&I Clubs and Shipowners wanted to protect their interests from further claims in the same matter.
That time we started using a Receipt & Release Statement (R&R) form, which had been adopted from legal practice of British lawyers. The intention was that R&R would be signed by seafarer or his next of kin with a purpose to release Shipowners, his insurers, agents and other persons from any liability in exchange of compensation payment.
However the Ukrainian civil laws do not recognize a rejection of person from right to court trial. So the corresponding provisions in a R&R can be acknowledged by Ukrainian courts as null. Some of local lawyers were trying to us that gap in the national legislation and we had cases when a seafarer after receiving of agreed in written, on the basis of R&R, compensation was trying to claim one more amount of compensation from the Shipowners.
Lack of Court Practice
To the day there was no any court practice explaining the legal status of a R&R… at all.
No single Ukrainian judge was trying to research meaning of R&R in light of Ukrainian laws in spite of numerous litigations where seafarers were trying to collect some more money in compensation from Shipowners and their P&I Clubs.
That problem had been keeping during last 20 years.
Finally…
Two days ago we have obtained a decision of Court of Appeals that can be considered as a milestone in the issue of legal status of R&R in Ukraine.
in the said litigation Lexcellence Law Office was engaged by english P&I Club with the purpose to protect interests of its Shipowner.
A new claim was submitted by next of kin who earlier received an agreed death compensation.
This time the next of kin rose her demands and was trying to get a new amount in addition to that received earlier.
Lexcellence’s associate, attorney Inga Drobinova proposed perfect explanation of a legal status of the R&R in the Statement of Defense and effectively protected the Shipowners’ and P&I Club’s interests before a District Court in Odessa. The Court of Appeals upheld the decision of the court of first instance and the decision came into force with immediate effect.
We are of opinion that the wording of the said decision will be very useful to our colleagues in Ukraine in similar court cases.
The detailed analysis of the decision will be arranged by Inga Drobinova and published soon on our website.
