Rosmorport won a lawsuit against the Dutch Damen for sea tugs

Rosmorport won several ships from the Dutch Damen under contracts for the construction of seven tugs. In 2022, Damen refused to fulfill orders for RUSSIA, and in 2023 it itself sued the Dutch authorities

What was built for Rosmorport

In 2020–2021, FSUE Rosmorport ordered seven Arc4 ice class tugs from the Dutch shipbuilding company Damen Shipyards Gorinchem BV. The orders were due to be completed in 2022. But in March 2022, a week after the start of Russia’s special military operation in Ukraine , Damen announced the suspension of work on all existing contracts and the refusal of future contracts. This also affected orders from Rosmorport.

According to COURT documents, the state-owned enterprise sent Damen several advances, which totaled €22.52 million, or about 1.946 billion rubles. at the rates on the date of payment. The Dutch company did not fulfill the order and did not return the advance funds. Then Rosmorport turned to the guarantor bank, which was ING Bank, and in pre-trial order returned about 1.529 billion rubles.

However, due to significant exchange rate differences at the time of making advances and compensation payments, the lost amount amounted to almost 417 million rubles, Rosmorport claims. The state-owned enterprise applied to the Moscow Arbitration Court for reimbursement of these funds - first in September 2022 under contracts for the supply of two tugs, estimating its loss on them at 323.085 million rubles, then in March 2023 under contracts for another five tugs, for which the loss amounted to 93.378 million rubles.

At the end of 2023 and February 2024, the courts confirmed the legality of the claims against the Dutch company, it follows from the case materials.

What guided the court?

Despite Damen's attempt to explain its situation by EU sanctions , which, according to the company, do not allow it not only to supply tugs, but also to transfer money , the court saw in its actions a violation of its obligations to Rosmorport. In addition, Damen did not provide any evidence that banks were refusing to accept its payments, the materials said.

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In such a situation, the argument that exchange rate losses are a business risk is “irrelevant,” the court found. And Damen's claims that the imposition of economic sanctions is a force majeure event are "unfounded."

“In this case, the occurrence of losses, compensation for which the plaintiff demands, is a consequence of the defendant’s violation of the obligation; the existence of a causal connection between the violation and the losses proven by the plaintiff is justified. The risk of the plaintiff’s business activities does not imply taking into account the defendant’s unlawful actions,” the materials say.

Rosmorport did not respond to RBC’s request at the time of publication of the material; Damen declined to comment.

Can Damen pay?

It is unclear whether Damen transferred funds to Rosmorport. Anton Maltsev, partner, HEAD of the dispute resolution and arbitration practice of Melling, Voitishkin and Partners, notes that in general, cases when, after February 2022, foreign companies executed judicial acts of Russian courts are known. “In some cases, foreign companies had to obtain a license from a foreign sanctions regulator to do this. In other cases, collection occurred without the active participation of a foreign debtor - by levying execution under writs of execution on those of its assets that were found by the collector in Russia. In addition, there are examples of the execution of Russian court decisions after February 2022 abroad, for example in Turkey. True, in the cases known to me, the execution of the decision was not complicated by the sanctions element,” he adds.

Managing partner of the law firm Vetrov and Partners, Vitaly Vetrov, recalls that Damen stated that it was not possible to transfer funds to its Russian counterparty due to the sanctions regime. “However, this, in turn, may not prevent Rosmorport from trying to find the debtor’s assets in Russia, friendly jurisdictions and, with some skill, at their expense, executing the issued judicial act. We are faced with such requests. In principle, there is practice of similar things,” concludes Vetrov.

For what projects were Damen tugs built?

It is not known from the ship materials whether the tugs were ordered for any specific projects. However, they indicate that “the plaintiff assumed obligations to third parties (including within the framework of the assigned state tasks) to provide tugboat services, which the defendant had to deliver in a timely manner.”

The head of the Gekon consulting center, Mikhail Grigoriev, recalls that in 2021 Damen also signed a contract with Atomflot for the construction of tugs. They were intended for use at the offshore LNG transshipment complex in Ura-Guba on the Kola Peninsula. In addition, the company announced the construction of a port fleet for a similar complex in Bechevinskaya Bay in Kamchatka. Both projects fell under US sanctions in the fall of 2023 .

Since Damen has established itself well in Russia, it often received orders from Russian enterprises, the expert says. “But due to sanctions restrictions, deliveries of ships, even those already built, are not being made,” notes Grigoriev.

In the fall of 2023, it became known that Damen filed a lawsuit in the Rotterdam court against the Dutch government due to the damage caused by the sanctions imposed against Russia. It was noted that the lawsuit was filed in the Rotterdam court on May 10, but the case was expected to be heard only in 2024 . As a company representative noted then, before the sanctions, Damen signed contracts with Russian ship buyers, but after the outbreak of hostilities in Ukraine, “the Dutch government decided that such contracts may not be respected by the Dutch business community.” “The government has not offered Damen compensation for this damage,” the spokesman said.

RBC sent a request to the Rotterdam court.

BLOOMBERG noted that the profile of the vessels that Damen builds is wide - from warships, dredging vessels to yachts, which the company also sold to Russian businessmen. It also had an engineering branch in Russia.

As for alternative manufacturers of tugs, as Grigoriev notes, currently in Russia the construction of such vessels is carried out in small volumes. “This forces us to look for foreign suppliers, for example for the Elga coal port, in CHINA. According to companies providing towing services, for example, in the seaport of Murmansk, the main source of tugs is now the search on the secondary market,” the expert concludes.