Constanta Tribunal – Civil Decision no. 34/MF/06.04.2010 (unpublished).
In this decision, The Court has decided, within a tort liability action directed by the shipowner
against the ship’s agent requesting damages as a result of the abusive de facto arrest of
the ship due to the infringement by the agent of its obligations, that the requirements of tort
liability are not fulfilled, since the requirement of the existence of the unlawful deed is not
fulfilled in its turn. The court ruled in that, considering the defendant’s exercising of its
property right, within the normal exercising of right, this cannot be qualified as unlawful even
if in this way a certain prejudice was caused to the plaintiff.
Constanta Court of Appeal (Civil Decision no. 20/MF/22.11.2010 – unpublished), with a panel of
judges with divergent views, admitted the appeal brought by the shipowner, noting that the conditions
for devolving tort liability upon the ship’s agent are met, the actions attributable to the agent
exceeding the contractual relationship between the parties. The solution is criticized, given that
the Court of Appeal considered, within the contradictory motivation, that another legal entity was
responsible for submitting with the authorities the documents necessary for the ship’s departure,
and on the other hand by retaining the application of the provisions of article 998 of the Civil Code,
given that there is a contract between the parties which governs their commercial relationships.
In a separate opinion, Constanta Court of Appeal correctly found that the obligation to submit
the documents necessary for the ship’s departure was for another legal entity which was not party
to the case pending in court. The separate opinion also mentions the fact that the agent’s liability
could be founded on contractual liability and not the tort liability appealed to by the plaintiff.
The High Court of Cassation and Justice (Civil Decision no. 2270/09.06.2011- unpublished) admits the
appeal brought against the decision of Constanta Court of Appeal, retaining the same considerations
present in the separate opinion of the judge of Constanta Court of Appeal, within the motivation.