Dubai Courts
Documentation System
By the Name of Allah, the Most Merciful the Most Gracious
By the Name of the Honorable Sheikh
Mohamed Ben Rashid Al Maktoum the Ruler of Dubai
Court of Appeal
At the session publicly held on Sunday corresponding to June11th of the year 2017 in the court house of appeal of Dubai
Under presidency of Sir.Judge Tarek YaakoubAlkhiat; (circuit president)
Membership of Sir. JudgeSamyAbdelgaleelTohami;
Sir.JudgeYousifKayedNayefTahat;
In presence of Mrs. Mariam Mohamed El Sabousy (Secretary)
In the appeal number 381/2017 commercial
The appellant: compass ocean shipping (L.L.C)
The appellees:
<!--Multi Trans Logistics (L.L.C)
<!--Harerod General Trade (L.L.C)
<!--Al Ghareer Food
<!--The New India Co. Limited
The appealed judgment: issued in the lawsuit number 818/2016 Commercial Comprehensive on 18-1-2017
The court issued the following judgement:
After pleading and reviewing documents and deliberating legally:
Whereas the facts of case and documents and pleadings of litigants have contained the appealed judgment, so this court refers to it considering its reasons as complementary to the reasons of this judgment.
The brief of the incidents are summarized in the following points; on 22/5/2016, the two companies, the appellee-first and second, they are :
<!--Harerord General Trade (L.L.C)
<!--Multi Trans Logistics (L.L.C)
They filed the case number 818 of 2016 Comprehensive Commercial against the appellant company : Compass Ocean Shipping (L.L.C) demanding: obligating the defendant company to pay the sum of 2932000 Durham to the appellants as value of the burned machinery in addition to a sum of 500,000 Durham as compensation for material and moral damages that occurred to the plaintiffs in a total sum of 3432,000 Durham in addition to the legal interests by 12%, that was depending on the saying that the plaintiff body have a forklift and number of 16 lamp posts, then the first plaintiff assigned second plaintiff the mission of storing these machinery, and the second plaintiff delivered the machinery to the defendant company as it is specialized in providing logistic services and storing in general whorehouse. The defendant company has stored those machineries in its whorehouse located at Gabal Ali area. On 2/3/2015 a huge fire stated in the warehouse and burned all things exist in the warehouse including the above mentioned machinery where it was totally suspended and became in valid for use.
It was proved through the fire report that was recorded by Dubai Police that storage conditions were not fit and what was found in the warehouse such as forage and grasses must not be existed in the warehouse dedicated for machinery and equipment which caused the fire and burned all things exist in the warehouse. The plaintiff body has filed the litigation no. 650 of the year 2015 appointing expertise commercial, demanding appointing an insurance expert, who carried out his mission and deposited his report that ended up in a result of : proving existence of the burned and suspended machinery whereas it were under trust of the defendant company which is responsible for it as long as these machinery were under its hand and trust. The value of these machinery is estimated by a sum of 2932,000 Durham, the defendant is obliged to settle it with its right to reserve the debris. Whereas the plaintiff body has suffered losses and damages as a result of what happened to it machinery, that damages are estimated by a sum of 500,000 Durham, accordingly, the plaintiff body the filed the present lawsuit for the above-mentioned demands.
Whereas the lawsuit was presented to the manager of lawsuits department and the parties were represented by attorney on behalf of everyone, the representative of the defendant protested for non-accepting the lawsuit because of being filed by one who has no legal capacity and against one who has no legal capacity regarding this matter, and on 8/8/2016 the manager of lawsuits department decided referring the case to the competent judicial circuit to consider.
Whereas the lawsuit was deliberated by sessions, before the court of first instance, as shown in detail in its minutes, and the parties had been represented by attorney for everyone, on the session of 15/8/2016 the representative of the defendant presented a motion to join new litigants in the lawsuit, they are: 1- Al Ghareer Food, 2- The new India assurance company limited, the defendant demanded in its conclusion a judgement holding:
Firstly:
1- originally: refusing the lawsuit.
2- precautionary: delegating an expert to review protests of defendant.
Secondly:
In the subsidiary lawsuit: obligating the two joined litigants as co-joining partners for what may be decided to the plaintiff as its demands. Saying by the plaintiff that the first-joined litigant company is responsible for occurring such fire and compensating damages arising out of it, and that the second-joined litigant company is the assurance company, the assuring company against all risks. And on the session of 14/11/2016 the court appointed the previously delegated expert in the litigation number 650/2015 (appointing expertise commercial) for carrying performing the mission shown in the sentence of it's judgement, and as enforcing to this judgment, the appointed expert executed his mission in front of the parties and submitted his report ending up to the result of: proving responsibility of the defendant company to compensate the plaintiff company for what happened to its machinery of damages that are estimated by the sum of 2932,000 Durham, and on the session of 18/1/2017 the appealed judgment had been issued in presence of a the parties and decided:
Firstly;accepting the motion of joining as per legal form and refusing it as per subject matter.
Secondly: for subject matter of the principal lawsuit; obliging the defendant company to pay to the first-plaintiff a sum of 2982,000 Durham and legal interests by 9% annually commencing from becoming this judgment as final until full settling. Whereas the prevailed company didn't accept that ruling, then it challenged the said judgement on14/2/2017 by the present appeal demanding; accepting it as per legal form, and as per subject matter;
1- principally; repealing the appealed judgment and newly judging by refusing the lawsuit.
2- as precautionary; responding demands of the appellant stated in joining motion that was presented at the session of 8/8/2016 before court of first instance.
That is due to a set of reasons, theiressence is; arguing on the appealed judgment with misapplication and interpretation of law, lack of reasoning, defective evidencing in addition to contravening the proved in the documents and prejudice to defense right. The appellee stated clearing that in its explaining memorandum that the appealed judgment misapplied Law and the preliminary judgment is marred by lack of reasoning, because of not stating possibility of repairing those machinery and it omitted showing its trade value before and after that fire, in addition, the appealed judgment accredited the result of appointed expert in the lawsuit, in spite of being unspecialized in searching all points assigned to him by the preliminary judgment, so the result came as conclusion and contravening to reasonable judgment and the normal way things are going to be considered.
Other than the appealed judgment misapplied Law when it judged refusing to obligate the appellee-third and fourth to perform what may be awarded to the appellant-first and second, in spite of proving responsibility of the appellee-third and fourth for the fire that occurred.
The appellant demanded in the conclusion of its explanatory memorandum passing judgement;
Firstly; accepting the appeal as per legal form.
Secondly; as per subject matter; principally; canceling the appealed judgment and newly judging by refusing the lawsuit. - and as precautionary; deliberating triple committee consisted of (appraiser expert - technician expert - assurance expert for reevaluating and examining protests of the appellant and responding to them. The appellant presented a portfolio of documents contained a copy of a document not written in Arabic language.
Whereas the appeal was deliberated by sessions as shown in detail in its minutes, the parties were represented by attorney for everyone and the representative of the defendant protested two portfolios of documents contained: A copy of certificate of works safety issued from the authority of ports & customs and free zone in addition to the translation, and copy of working efficiency certificate issued from the authority of ports & customs and free zone in addition to the translation, and copy of two certificates issued from Brigade Center for training on safety and fire-fighting (L.L.C) in addition to the translation, a set of photographs, a copy of a certificate- to whom it may concern- issued from police station of Gabal Ali, a copy of insurance policy, and presented a memorandum of its defense, the appellant insisted on its above said demands. And also the representative of the appellee-first and second presented a memorandum they demanded in itsconclusion passing judgement on: refusing the appeal and confirming the appealed judgment.
Also the representative of the appellee-fourth three memorandums containing its defense where it demanded in its conclusion giving a judgement on: refusing the appeal as per the subject matter.
Whereas the court decided issuing the judgement on this day. Whereas the appeal was filled in the legal date and satisfied it's stipulated legal form, so it is accepted as per the legal form.
Whereas for the subject matter, as applying to the transferring effect of the appeal in the limits it stated, it was stipulated that the appeal judgement shall be deemed satisfactory reasoned in case that it adopted reasons of the appealed judgment that it confirmed, especially if appealed judgment reasons were enough to constitute it, and no admonition to the court of appeal if it didn't state those reasons, but merely referred to them, because referring to those reasons stands in for stating them. And no admonition to the court of appeal if it didn't state reasons to adopt the grounds of the primary judgement or adding to them. For the forgoing said and where the appellant presented in its grounds for appeal, shall not, in its essence, exceed what was presented to the court of first instance, and had been included in its grounds, and the appealed judgment undertaken replying truly and dully to these reasons in the limits that prevents the court of appeal from stating new grounds for its judgement. Because the court of first instance addressed the legal and real items of the case and included in its merits responding to the appellee-firstly for some of its demands and refusing the subsidiary lawsuit of warranty filed by the appellant. Whereas those reasons are reasonable to justify its judging leading to the same result which it reached and these reasons has its origins proved in the documents and comply with the law. Thus this court shall accredit the same reasons to constitute it's judging, that means refusing the appeal as per subject matter and confirming the appealed judgment. So this court doesn't see any necessities for deliberating triple committee of experts, and it found in the documents all what it needed to settle the present dispute.
Whereas the appellant has been prevailed in its appeal, so it shall be obliged to settle all the expenses and attorney's fees as applying to the text of the two articles number 133, 168 of civil procedures law, in addition to expropriation of the assurance payment.
Based on the forgoing reasons;
The court decreed: accepting the appeal as per legal form and refusing it as per subject matter and confirming the appealed judgment, and obligating the appellant with paying the expenses and a sum of one thousand Durham as attorney's fees in addition to expropriation to the assurance payment.
Head of the court: (signature).
Hearing secretary (signature).
