1. A certificate of force majeure issued by a foreign chamber of commerce is not a self-evident proof of the occurrence of a force majeure event. Where appropriate, the findings of law enforcement agencies and evidence of the causes of the explosion are in order.

2. Physical harm to property by itself does not give rise to pure loss, including interest payments, trade finance charges, and loss of profit, even if it results in the imposition of delictual liability to recover the cost of the harmed property.  

The Supreme court’s position

In accordance with Arts 8 and 234 CC, obligations shall arise from a contract, from the infliction of a harm and from other grounds specified in CC. The parties’ obligations under the disputed legal relationship arose out of the infliction of the harm.

[The Collegium has cited Arts 985 I, IV, 709 II CC, and Nr 148 Railway Statute, adopted with RCM dd 23 October 2008 No 232.]

[The Collegium has cited Art 46 II Agreement on International Railway Freight Communications (SMGS).] Considering the requirement of this article, in the disputed legal relationship, the claimant is entitled to make a claim specifically against the co-respondent, as it is the carrier issuing the goods to the consignee, i.e. the claimant.

Additionally in Art 36 SMGS it stated that a carrier who, in the cases provided for in this Agreement, has paid compensation to a consignor or a consignee in accordance with these Agreement, shall have a right of recourse against other carriers involved in the carriage.

Considering that the materials of the case established the infliction of the harm in the amount of the cost of the equipment 50,000 USD, as well as in the amount of the cost of the container 1,000 USD, the courts came to a correct conclusion to satisfy these claims in the soums equivalent of USD.

The co-respondent’s arguments that the explosion in a military unit located near the railway station Arys, Turkestan Region of Kazakhstan, and the hit of a shell into a wagon with a container, as a result of which the goods became unsuitable, is a force majeure event and serves as a basis for exemption from liability are not accepted by the courts due to the fact that it has not proved the occurrence of force majeure.

The Collegium considers these conclusions of the courts to be justified, since the certificate and conclusions of Chamber of International Commerce of Kazakhstan dated 9 July 2020 on the occurrence of technogenic emergency (force majeure) is not sufficient evidence of force majeure circumstances, as the court is not presented with the results of the study (enquiry, investigative actions) by the law enforcement agencies of Kazakhstan, the cause of the explosion (negligence of officials, violations of storage conditions of explosive substances, intentional or negligent actions of persons, occurrence of an event due to force majeure etc.). In this case, the burden of proof of the occurrence of force majeure event lies on the co-respondent and the LLP [which is a third party that does not make independent claims on the subject matter of the dispute], as otherwise the liability to compensate for damage to the claimant arises against the co-respondent and further in recourse against the LLP to the co-respondent by virtue of the requirements of Art 36 SMGS.

The claimant’s claims to recover damages from the respondents in connection with the payment of loan interest to the bank and commission on the letter of credit, loss of profit and costs incurred to restore the violated rights were reasonably rejected by the court of first instance due to the failure to prove these claims and the lack of a causal link between them and the occurrence of the event.