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Siri Hashem - Senior Associate
As a reminder, in this case the court decided that both the insurers of the steel plates cargo (‘Insurers’) and the carrier were jointly liable to indemnify the receivers of steel plates cargo (‘Receiver’) based on a distinct legal basis. The Insurers were required to pay damages to the Receiver and, consequently, they filed a recourse case against the carrier, as identified by the court, after obtaining a subrogation of rights from the Receiver. The recourse case was based on both the judgement and the right of subrogation at the same time.
In Part I of this article, we stopped at the point where the Insurers filed a court case against the ship-owners in order to claim the amount they paid to the Receiver, pursuant to the previous proceedings (in which judgement was issued in favour of the Receiver against both the Insurers and the ship-owners) and to the execution claim filed by the Receiver against the Insurers.
To recap, the Insurers argued in the Court of First Instance in Dubai (‘Court of First Instance’) that the ship-owners are ultimately liable to pay to the Insurers the amount awarded to the Receiver, but the ship-owners had asked the court to stay the proceedings until the Cassation Court of Dubai (‘Cassation Court’) issued its final decision in the appeal filed in the previous proceedings. The ship-owners also argued that they were not the carrier under the bill of lading and should not be held responsible.
In the reinstated Court of First Instance proceedings, the Insurers argued the following:
The Court of First Instance rejected the Insurer’s case on the following basis:
The insurers filed an appeal before the Appeal Court against the ship-owners on the following basis:
The ship-owners argued that:
The Appeal Court found the following:
In our view, the above reasoning of the Appeal Court was intended to explain why the case could be filed pursuant to the subrogation letter; and to explain why the case is not time barred.
The ship-owners filed an appeal before the Cassation Court based on the following arguments:
The Cassation Court refused all arguments raised by the ship-owners in this appeal and confirmed the Appeal Court judgment on the following basis:
The Court of Cassation, in this instance, was flexible in its consideration of the application of the ‘time bar’ and in its analysis of legal principals and article of laws, as well as in applying the rules of justice. However, this is not always the case. In many insistences, the Cassation Court tends to strictly apply the rules of law as its role is mainly focused on ensuring and observing that the law is applied correctly by the lower level courts.
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