Recently, Sammarco Law Office has obtained an important decision in a claim commenced by the subrogated insurance company, aiming at recovering from the maritime carrier an indemnity paid to their insured in connection with cargo damage.
The insurance company was successful in their claim however they were not successful in enforcing their favourable decision. Then, the insurance company tried the enforcement against the maritime agent, however this request was promptly denied. Afterwards, the insurance company required the enforcement of the decision against the local Correspondent of the Club P&I of the vessel/owner and the Judge ordered their notification.
To accomplish the judicial order, the local Correspondent presented a petition in Court in which the total legal impossibility of the insurance company intention has been demonstrated. In this line, first of all, it was clarified that the Correspondent of the P&I Club is not an insurance company neither an Association or a P&I Club, or even a legal representative. Besides, it was also clarified that the P&I Clubs are associations of owners and carriers which seek mutual economical-financial help, to provide protection and indemnity relative to their activities what does not imply in guarantee to third parties.
Finally, it was pointed out that the P&I Club is not party of the original claim, so that they cannot be reached by the effects of the decision favourable to the insurance company. Therefore, the enforcement of the decision could not reach a party that did not participate of any stage of the dispute.
Based on the arguments defended, the Judge refuted the insurance company intention which still filed an appeal to the Court of Appeals of São Paulo. In a recent judgment, the Court of Appeals of São Paulo confirmed the first instance decision, understanding that the acts practiced by the Correspondent do not imply in a condition of legal representative, so that there is no judicial bond authorising the enforcement of the decision directly against the Correspondent of the P&I Club.
The decision also confirmed that the P&I Club is a reunion of owners and carriers, as well as a non-profit association with their own rules. The associative bond, however, has a statutory nature, different of a contractual nature existing among the insurance contractors.
Legal action 2254137-84.2018.8.26.0000 Court of Appeals of São Paulo State
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