5780447533

46 Tomas: Pajor

inicrprclations and docs not provx!c for fuli prcdictability in court ruliagjl Howcvcr, in light of thc discusscd cucumstanccs of this casc. thc rcsults an oppositc direction of intcrprctation would bc unacccptablc. The ap. plication of rulcs on civil liability musi not lcad to burdcning a pcrpetrau* who oommiu ind den tal ncghgencc with various perturbations in tbe ecooo-l raić life of thc wbolc region. And after all - why just thc region? In ai other situation it could bc thc whole country thcrc are virtually do cJoj limitations and this at kast provcs thc indispensability of introduda| reasonablc limitations in thc scopc of liability providcd for in thc genend elause of Art. 415 Civ.C. One of thc Instruments serving that aim is thc notion of normality of conscquenoes under Art. 361 Civ.C.

C»se 4

A collision prcvenied a passtnger liner from sailing for a month. The Shipwrtm Company. which had leased ihe ship. was foreed lo cancel rwo cruises in ihe Caribbean. Shipwreck sued those responsible for the collision. claiming com-ptnsation for its expenses uselessly incurred prior lo ihe collision. and for iu loss of eamings due to cancellalion of thc iwo cruises.

I.    Probably the Shipwreck Company would obtain, from tbe pcrsoi liablc for collision of the liner, compensation for bencfits lost as a coo-sequcnoe of canccllauon of thc iwo cniiscs. Noncthclas. thc liability of sucb person docs not covcr thc prcviously incurred espenses which turned out to bc usclcss foliowing thc collision of thc liner.

II.    Liability for damages rcsulting from the collision of ships is regulatcd by thc provisions of Art 257 et scq. of the Mariumc Codc of 18* Scptcmber 2001 (OJ. No. 138, item 1545). It is bascd on a conccpt of fault of the ship (Art. 258 M.C.). The loss of bencfits from cruises planncd in thc ncir futurc constitutcs thc lucrum ccssans and is - in principlc - cligible for rccovcry, sincc thc probability of gaining bencfits was vcry likcly becaute the cruises werc bookcd

It is morę problcmatic though, whether the Icssce of the daraaged lino can claim the recovcry of damages or whether it should rather bc the owner? The lattcr is obviously directly injurcd by thc considcrcd cvcnt, whcrcas thc rights of thc Icssce in rclation to the objcct of lease are mainly cflectivc against the other party to thc contract, i.e. thc lessor (bcing normally the owner). One can draw thc condusion that thc Icssce should claim his/her damage from thc lessor (owner). and the owner in turn freon thc person liable for collision of thc liner. This hnc of rcasoning howev%t raiscs two csscntial obstades. Firstly - thc Icsscc raay not bc compcnsatcd

by thc lessor, wherc thc lattcr exoncratcs himself/hcrsclf by proving that he/shc is not liablc for ihe collision versus thc Icssce. neithcr contructually nor on any other grounds. Sccondly thc lessor (owner) can bc confrontcd with an objcction. raiscd in thc lawsuit against the person liablc for collision of thc liner. tbat thc compensation sought conccms damage not incurred by him/her, ńncc it was thc Icssce who organiscd cruises and not thc lessor.

The perpetrator of damage would thus avoid liability when the rights to daim damages and tbe damage incurred are split bctwcen different person*.

In these circumstanccs one should assume that thc liability for collision of tbe liner also covcrs damages incurred by its lessees. In fact the faulty action of the perpetrator, bcing dircctcd agauist a ccrtain thing (a liner) not only infringes on thc absolutc rights to such thing. likc ownership rights. but also relative rights, which person* entillcd to usc thc thing under a contract are equippcd with. It also infringes thc dependent po-Mession of the liner excrcised by thc Icssce.¹⁵ Thus, thc Icssce of thc liner can be considercd dircctly injurcd and claim damages incurred thereby as a rcsult of thc collision, if only thc premises of liability, dcfincd by law, are met. In any case such liability cannot bc eacludcd by thc simple objcction that the plaintiff is not an owner of thc liner wherc he/shc capłoits it under a contract with thc permission of the owner. and claims rtcovery of damage that could also bc incurred by the owner.

The assessment of claims of Shipwreck Company is different as regards thc compensation of prcviously incurred espenses that provcd usclcss fol lowing the collision. Contrary to the first impression, this is not a ąucstion of lack of a causal link with thc collision Art. 361 § 1 Civ.C. States that (noiroal) cfTccts of thc act or omission front which the damage rcsultcd are subjcct to recovcry, and expcnses incurred prcviously, prior to such act, do not sccm lo fit such a definition. Noncthelcss thc causal link can bc undersiood broader if thc law so providcs. It is suHlcicnt that thc cvcnt resulting in liability alters the assessment of cconomic utility of the espense prcYiousły incurred. In such circumstanccs one may assume that thc espense turncd into a damage as a resull of the cvcnt. I he Gvil Codc introduccs liability for this kind of damage in a number of occasions (e.g. in Art. 103 § 3 Ctv.C., 387 § 2 Civ.C„ 390 § I Gv.G, second senlcncc of 566 § 1 Gv.C.). Il is referred to as liability ariring from protcction of thc reliancc interest or (foltowing thc German paltem) within the ncgalive contractual interest.

Damages of such kind are eligiblc for rccosery wherc thc specific provision so prowdes. It is for this rcason that an injurcd person, claiming

^u AłUiough under Poiuh Uw, the pooeuuon n net consaJcnad a iubjcctive nght. yet mody ui ictua] cootrol o%<r a thing. noortbcIcM uch actual coolrol n under an erga onuwi protrcwio of Uw. in ccrtain orcumwanoes in%okable by ihe poMCswc. alw> aguwi ihe owner ot the thing (tce: Art. 344 Ciy.C.).