In Buenos Aires, on the 21st day of the month of March of two thousand and two, the Judges of the 2nd Chamber of the National Court of Appeals in Civil and Commercial Federal Matters, met in agreement to hear the appeal filed in the case: LA REPÚBLICA CíA.DE SEGUROS GENERALES SA V/ UNITED AIRLINES AND ANOTHER S/ BREACH OF CONTRACT, regarding the judgment on pages 886/899 back, the Court established the following issue to be resolved:
The appealed sentence is in accordance with the law
After the draw, it was determined that the voting should be carried out in the following order: Chamber Judges Dr. Marina Mariani de Vidal and Dr. Eduardo Vocos Conesa.
In response to the question raised, the Chamber Judge, Dr. MARINA MARIANI DE VIDAL, said:
I.- United Airlines, under air waybill nº 016-5245-7182, assumed the transport -from Buenos Aires to New York- of two packages containing gold contacts, loaded by Ceramicol SA and destined for American Chemical & Ref. Company Inc. (conf. fs.6).
On 21.12.93, at around 21 p.m., while the merchandise was being transported in a United Airlines van - within the scope of the Ezeiza International Airport - from the EDCADASSA warehouses to the plane in which it would be transported to New York, the vehicle was boarded by two armed men, who stole the cargo and fled.
The Republic General Insurance Company SA -the insurer of the item- paid Ceramicol SA the sum of US$ 119.013,40. And claiming that it had been subrogated to the rights of the insured, it brought this lawsuit against United Airlines and against the National State (Argentine Air Force), claiming payment of the aforementioned sum, plus interest and costs.
Once the claim was rejected by the defendants, the judgment on pages 886/899 back ordered United Airlines and the National State (Argentine Air Force) - concurrently - to pay La República Compañía de Seguros Generales SA the sum of US$ 119.013,40, with interest, to be calculated in accordance with the guidelines set forth in Consideration V; plus the costs of the trial, with each of the defendants having to face those generated by their own actions. As for the situation of the co-defendants among themselves, the ruling set the measure of the indemnification obligation of each one at 50% of the total that corresponds to the plaintiff (for capital and interest), establishing that whoever of them paid the plaintiff a percentage higher than that indicated, could repeat the excess of the other.
Both co-defendants appealed. United Airlines expressed grievances on pages 939/978 back and the National State (Argentine Air Force) did the same on pages 979/980. The plaintiff responded to the grievances of the National State on pages 982/987 back and on pages 988/1003 to those of the carrier. There are also appeals for the regulated fees, which will be dealt with by the Court as a whole at the end of the agreement.
II.- United Airlines maintains that La República Compañía de Seguros Generales SA lacked standing to sue it, since it did not prove the payment it claimed to have made to its insured -Ceramicol SA- and on the basis of which it claimed to be subrogated to the latter's rights.
Subrogation occurs through payment, independently of the insurance contract and without the need to implement an assignment of credits (arg. arts. 767 et seq., Civil Code; this Court, cases 5919 of 24.6.88/6496/11.4.89; 8116 of 5.4.91/5919/8116 and its citations; 7302 of 19.6.90/7614/28.9.90; etc.). In turn, payment, as a legal act of extinction, may be proven by any means of proof, including presumptions (conf. this Chamber, cases 28.8.97 and 2 cited; 1613 of 533; 4 of 730, among many others; Chamber III, case La Meridional Cía de Seg. C/ American Airlines of 6; etc.; LLAMBIAS, JJ, Treatise on Civil Law, Obligations, 1264nd ed., vol. II-B, no. 9 and jurisprudence cited in note no. 776; BORDA, G., Treatise on Civil Law, Obligations, 5919th ed., vol. I, no. 8116; SALVAT, R.-GALLI, E., Treatise on Argentine Civil Law, Obligations, XNUMXth ed., vol. II, no. XNUMX b); REZZíNICO, LM, Study of obligations, XNUMXth ed., vol. I, p. XNUMX; etc.). And the Court has decided that an effective means of proof of subrogatory payment is the express recognition given in court by the person who received it, without it being necessary for the receipt to be recognized by the employee or official of the company that signed it (conf. cases XNUMX and XNUMX cited).
On pages 161/162 there is a report issued by Ceramicol SA, which states that, due to the events in question, it received payment of US$ 119.013,40 from the plaintiff, recognizing the authenticity of the receipt for payment of the compensation (see pages 158). This report - which the Judge took into special account - was not questioned in the slightest by United Airlines.
Under such conditions, the grievances she raises regarding the plaintiff's legitimacy, which focus on the accounting appraisal carried out on the plaintiff's books, but which ignore that report, cannot be addressed.
III.- United Airlines is not satisfied with the responsibility assigned to it by the court a quo.
He is not unaware that, under the guide no. 016-5245-7182, he received for transport by air 2 boxes containing 72.991 gold contacts (see guide on fs.6), classified as valuable cargo (that is, that it was a valuable cargo, of value).
The circumstances and location of the theft of the consignment are also not unknown, as described in the ruling and arise from the separate criminal case: at Ezeiza Airport - on 21.12.93, at around 21 p.m. - two United Airlines employees removed the two boxes from the EDCADASSA warehouses and loaded them onto an airline vehicle in order to transport them to the aircraft, which they had to travel around 800 metres to reach. This route lacked any surveillance posts or security facilities of the National Aeronautical Police (hereinafter PAN). After travelling approximately 100 metres, in a place that could not be seen or, consequently, monitored from the warehouse or from the aircraft, they were stopped and boarded by two people (one of them armed and dressed in a uniform similar to that used by members of the National Aeronautical Police), who took control of the vehicle and drove it calmly - with the lights off and without beacons - to an area adjacent to the export warehouse and then along a dirt road, until they reached a wire mesh gate that connected the airport facilities with the outside and which was open, which they crossed, fleeing after having loaded the boxes into another vehicle with the help of a third subject (conf. statements of fs. 23 and back and 28 and back and 66/69, visual inspection of fs. 32, plan of fs. 33, sketch of fs. 59, photographs of fs. 60/63 back, reconstruction report of the event. fs.398/400 and photographs of fs.401/411 of the proceedings Proceedings brought for theft of gold in Ezeiza, which is filed separately and fs.649/656, 663, photographs of fs.660/677 and sketch of fs.678, of this file), without anyone noticing their presence or trying to stop them. One of the boxes and its contents were subsequently recovered.
In light of these facts, United Airlines claims that it took all necessary measures within its reach and that were reasonably required of it to avoid the damage, so that the Judge should have released it from all liability, in accordance with the provisions of art. 20, paragraph 1, of the Warsaw Convention of 1929.
First of all, I note that the fact that the airline was not obliged to transport the boxes from the EDCADASSA warehouse to the aircraft is not sufficient to exempt it from liability. The fact is that, precisely because of the nature of the cargo - which it had known about for a week (cf. witness statements on pages 64 and back and 68, criminal case) - it assigned two of its employees to carry out the transfer in their own vehicle, ignoring the handling service that the Intercargo company normally provides there and which had been paid for (cf. United Airlines' response, pages 58; absolution of positions of its legal representative, response to questions formulated in accordance with art. 415, Procedural Code: pages 297 and back). It is therefore unquestionable that it assumed custody of the cargo and, therefore, the obligation to adopt all necessary measures for its arrival in the aircraft's hold.
Going now to the heart of the matter, I will say to begin with that, although United Airlines asserts that the people who drove the boxes with the gold had received specific training, one of its employees declares - on pages 64 and back of the criminal case - that the company does not have permanently assigned personnel to act as drivers or companions in the vehicles in which the effects are transported to the aircraft, but rather it simply appoints any personnel who is free at the time, any employee who covers the shift at that time.
United Airlines must have known that the route to be taken by the vehicle carrying the gold to the aircraft was poorly lit (see inspection report on pages 653/655) and lacked surveillance posts or PAN security facilities and, obviously, that the route would have to be covered at night, so the transfer posed risks. This circumstance should have led it to increase its care and not to rely on the confident belief that the PAN would fully comply with its surveillance, control and security obligations when, to begin with, the route that its van had to travel lacked surveillance posts or security facilities of this institution.
United Airlines had hired a private security service from the company Servicios Quality Control SA, which was responsible - among other things - for providing security in the runway area (see report on fs. 578). However, United Airlines did not request - although it could have done so - an additional guard to accompany its employees in the van that was transporting the gold. And although it is true that the personnel of Servicios Quality Control SA was not authorized to carry weapons -the carrying of weapons being a monopoly of the members of the PAN-, this additional guard could have played an important deterrent role -as the Judge points out- or even eventually dominated the thieves... United Airlines also did not request from the PAN -when it could have done so- support service for its operations or additional armed guard service for security reasons (conf. reports on pages 166 and 473 and statements on pages 525/527 back and 534/535), with which not only would the criminals have been discouraged, but would have even eventually been able to dominate them and prevent the robbery.
The above-mentioned points are convincing that the airline did not take the precautions that the specific circumstances of persons, things, time and place - of which it had perfect knowledge and which must be weighed, regardless of purely abstract models - made necessary for the hypothesis, that is, it did not behave with the foresight required of a diligent carrier, thereby incurring fault (arg. art. 512, Civil Code), so that it cannot rely on the exemption provided for in art. 20, paragraph 1, of the Warsaw Convention of 1929 (the carrier will not be liable if it proves that it and its representatives took all necessary measures to avoid the damage or that it was impossible for them to avoid them). And although taking those precautions would have meant an increase in costs, the nature of the cargo - whose value had been declared and for which an additional fee had been paid (I will discuss this later) - well deserved it (arg. art.902, Civil Code).
Nor can it, for the same reason, claim that a case of fortuitous event or force majeure be understood to be configured in the case (to this effect, I refer to the arguments and citations that I will make when considering the responsibility of the National State and which are, mutatis mutandi, applicable with respect to this co-defendant).
United Airlines also seeks to apologize for not having requested additional security measures that were within its reach based on what it calls the prevailing uses and customs at Ezeiza Airport, consisting of the fact that no airline requested them at the airport even when dealing with valuable cargo (conf. statements on pages 534/535 and 540 and back).
However, this argument cannot serve as an excuse for their negligent actions in the specific case, since the inappropriate behaviour of other companies - however repeated - did not relieve them of the duty to adopt the necessary measures to avoid the damage that the circumstances demanded. And the fact that the conduct of the airlines was inappropriate arises from the fact that, after the robbery in question here, they requested additional custody from the PAN in hypotheses similar to the present one (see declaration on pages 534/535). Furthermore: perhaps it was this careless use - together with the absence of security devices provided by the PAN - that encouraged the commission of the robbery by criminals who must have noticed it and taken it into account when planning it.
United Airlines claims that the Judge contradicted himself by holding the PAN responsible for a lack of service and, at the same time, declaring it responsible for the incident.
There is no such contradiction. The Magistrate understood that the robbery could have been perpetrated due to the concurrence of faults of both co-defendants, who, each in their own sphere, behaved negligently: the robbery might not have been perpetrated if the PAN had fulfilled its duties of surveillance and security control, both with respect to the places and the people and vehicles that moved through them; but despite these failures incurred by the PAN, the robbery might not have been committed if United Airlines had adopted the precautions that I previously discussed. With this said, the Judge's opinion was correct, in that he considered the damaging result resulting from the concurrence of faults of the co-defendants. In other words, it is not true that the a quo placed the duty of care of the cargo exclusively on the airline, but rather placed it on the two co-defendants, whose omissions both contributed to causing the damage.
To which it should be added that the belief that others will fully comply with their duties cannot serve as an excuse to justify inattentive or careless behavior in relation to the circumstances of the specific case and the legal requirements (conf. this Chamber, cases 5076/98 of 16.10.2001; 3610/98 of 5.3.2002).
In short, United Airlines - although it could have done so without difficulty (it did not allege otherwise), did not satisfy the burdens that it was required to comply with as a matter of its own interest. It cannot therefore complain about the consequences of its own discretionary conduct (cf. Supreme Court of Justice of the Nation, Rulings: 275:218; 280:395; 299:373; 302:478 and 1397, among others).
As regards the arguments that Ceramicol SA did not request additional security measures for its valuable shipment - despite being aware of the way in which transfers were carried out within the airport (in its capacity as regular shipper) - nor did the insurer do so, which instead did demand armed guards for the land journey to the airport, I say that these arguments were not part of the litigation and cannot be considered, under penalty of violating the principle of consistency, which is linked to the constitutional guarantee of defense in court (arg. arts. 34, inc. 4º; and 163, inc. 6º, of the Procedural Code; conf. Supreme Court of Justice of the Nation, Fallos: 237:328; 239:441; 268:7; etc.; PALACIO, L., Civil Procedural Law, 2nd ed., vol. I, p. 258/259).
And the rule of congruence - enshrined in the rules of the procedural law that I have cited - imposes that the judicial decision strictly conform to the issues articulated in the plaintiff's claim and in the defendant's objection, finding limits in the matters debated by the parties, so that there is full conformity between what is claimed and resisted on the one hand and what is sentenced on the other (conf. PALACIO, L.-ALVARADO VELLOSO, A., Código procedural Civil y Comercial de la Nación, ed.1988, v.2, p.113/122 and extensive jurisprudence that they cite). As my distinguished and esteemed colleague from the Chamber recalled when voting in the plenary agreement of 12.5.78, in re Insignia Cía. Arg. de Seg. Generales SA c/ Martín, M. et al., is the so-called litiscontestación which constitutes the backbone of the process and the basis and cornerstone of the trial… This procedural relationship -said Dr. Vocos Conesa- is integrated with the fundamental acts of the claim and its response. And while the first of them determines the person called to the cause as defendant, the nature of the claim set in motion and the facts on which it is based (art. 330, Procedural Code), the second delimits the thema decidendum and specifies the facts on which the evidence should be based, thereby specifying the sphere in which the sentence must move (art. 34, inc. 41 and 163, inc. 61, of the same legal body). In summary, the central aspect of the response to the claim is that it specifies the disputed facts and the defenses that are invoked as obstacles to the progress of the opposing party's claim and, as a consequence, establishes the aspects that must be the subject of proof and the issues that the judge must consider in the ruling.
Without prejudice to which I point out that the duty to comply with the obligations arising from the contract falls on each contracting party, regardless of whether it is required by its contracting party or by a third party. And that United Airlines received the cargo and, therefore, assumed its custody, and it is then incumbent upon it to display the appropriate and careful conduct in order to ensure said custody, without the need for it to be specifically requested by the shipper.
IV.- The National State - Argentine Air Force complains that the Judge has held it responsible for the damage suffered by the plaintiff, for the amount in which said damage was valued and for the costs imposed on it.
With respect to these last two chapters, the appeal must be declared void (articles 265 and 266, procedural law). Indeed, it is obvious that the requirements of article 265 of the Procedural Code are not met, stating only and simply that my party is aggrieved… by the high amount to which it has been sentenced as well as the costs that have been imposed.
He is also wrong in his criticism of the issue of responsibility, but this requires further development.
The Judge decided that the route between the Edcadassa warehouse - from where the two boxes containing the gold contacts were taken - and the United Airlines aircraft in whose hold they were to be loaded, was not covered by any checkpoint or security system - even though it was easily accessible (unlit road, adjacent to the airport facilities, only separated from the outside by a wire mesh gate that was easily crossed by the criminals in their escape, because it was open) - so that in this aspect the surveillance was non-existent or seriously deficient. The Magistrate also concluded that there was a notable deficiency in the control of people and vehicles in the restricted operational area, since two strangers with weapons were able to enter - one wearing a suit similar to that of the members of the Force - and a cargo vehicle without lights or beacons could circulate at night, which after committing the robbery was able to escape without problems through the open gate to which I already referred.
Under such conditions, taking into account the specific duties imposed on the armed forces with regard to security and surveillance in the airport area, which it judged to have been breached in this case, and given that such circumstances made the crime possible, the a quo judged that there had been a lack of service, generating the liability of the Argentine Air Force, autonomous and concurrent in all with that of the airline carrier vis-à-vis the plaintiff and limited to 50% of the damages in the internal relationship between both co-defendants.
The Judge's conclusions stand up unscathed to the weak criticism of the National State, as I will try to demonstrate below.
Article 2 of Law 21.521, which created the National Aeronautical Police (conf. its Article 1), dependent on the Air Force High Command (conf. its Article 3), establishes that the National Aeronautical Police is a militarized security force that exercises police power functions in aerospace and the security police service in the territorial jurisdiction mentioned in Article 4 (conf. its Article 2).
Article 4 provides that the National Aeronautical Police has jurisdiction 1st in aerospace; 2nd in aircraft, aerodromes and ground facilities located therein or which serve as support for aerospace operations, insofar as this does not affect military jurisdiction. Jurisdiction… shall be exercised exclusively in those territorial areas delimited by the National Executive Power at the proposal of the Air Force Commander-in-Chief; 3rd in cases of infringements of jurisdiction over the air environment or the safety of air navigation.
And art. 12 of law 21.521 determines the functions that are incumbent on the National Aeronautical Police, among others:… 2º Monitor compliance with the regulations on prohibited or restricted air activity zones;… 5º Monitor and maintain security and order, prevent, investigate and suppress the commission of crimes and misdemeanors, within the territorial areas referred to in paragraphs 1 and 2 of art. 4º. 6º Intervene in the prevention and suppression of the seizure of aircraft and unlawful interference with civil aviation;..8º Control or verify people, aircraft, crews and transported things as far as security is concerned…
Reading the transcribed provisions reveals that the National Aeronautical Police is responsible, in the field of airports, for the security and surveillance service, both with respect to the places over which it exercises its territorial jurisdiction and the people and vehicles that circulate through them.
Now, the Supreme Court of Justice of the Nation has ruled, in well-known precedents, that whoever undertakes the obligation to provide a service must do so under adequate conditions to fulfill the purpose for which it was established, being responsible for the damages caused by its non-compliance or its irregular execution. This is the objective idea of lack of service that finds its foundation in the application, by subsidiary means, of art. 1112 of the Civil Code, which equates with illegal acts the acts and omissions of public officials in the exercise of their functions, for not fulfilling except in an irregular manner the obligations imposed on them, which puts into play the responsibility of the State in the scope of public law (conf. Supreme Court of Justice of the Nation, Rulings: 182:5; cases Vadell, J. v. Province of Buenos Aires of 18.12.84; LBJ and another v. Argentine Federal Police of 25.9.97 and others).
From the perspective set out above, then, it is clear that in the case at hand the extra-contractual liability of the State is at stake, within the framework of its actions through its security bodies and in its specific capacity as such.
The commission of the unlawful act and the circumstances surrounding its commission - outlined in detail by the Judge and which this co-defendant is not at all unaware of - show that the National Aeronautical Police neglected its duties in order to fulfill its functions of control, surveillance and maintenance of security (articles 2 and 12, paragraphs 2, 5, 6 and 8, Law 21.521), which it must exercise within a perfectly delimited territorial area (article 4, paragraphs 1 and 2, Law 21.521), for which purpose it is provided with its own human and economic resources by the specific regulations that govern it (article 10, Law 21.521).
Under such conditions, your complaint cannot be addressed.
I only think it necessary to add, in order to respond to other arguments put forward in the grievance report: a) that the Court has long accepted that armed robbery perpetrated by third parties may constitute force majeure (cf. case 4255 of 20.7.76). But it has also noted that the burden of proof of the case rests on the person alleging it and that, as an exception to the general principles, said proof must be full and conclusive and the facts must be assessed with rigorous criteria; In addition to the fact that fortuitous events and force majeure require, among other constituent elements, that the event be unforeseeable, or insurmountable, or inevitable, that is to say that the situation is not ultimately attributable to the person invoking it as guilt (cf. cases 5167 of 21.4.77; 704 of 4.12.81; 3915/91 of 11.11.94 and their doctrinal citations; 21.419/96 of 20.5.97; 3921/97 of 16.9.99; 7075/98 of 26.6. 2001 and others). With what has been said, and carrying out the examination in light of the foregoing, the robbery did not constitute in this case a case of fortuitous events or force majeure capable of releasing the National State; (b) that even if the Judge were not allowed to interfere in the tasks of operational organization of the force, he is undoubtedly authorized to determine whether or not that operational organization, in the particular case submitted to his decision, has been effective in avoiding the damage and whether this is causally related to the omission of the former, and (c) that the contested judgment does not incur any contradiction, since it has concluded that the robbery resulted from the concurrence of faults of both co-defendants and distributed the responsibility equally between them in their internal relations.
V.- Finally, it remains to consider United Airlines' grievances relating to the extent of its obligation to provide compensation.
The plaintiff stated in the opening statement that the air waybill contained a declaration of the value of the cargo such that, in accordance with the provisions of art. 22, paragraph 2, of the Warsaw Convention of 1929, in the event of non-compliance the carrier was obliged to pay up to the declared amount.
And in response to this claim, United Airlines only maintained that this was the case as long as it was declared liable, making various considerations in this regard about the difference between insurance on a guide and a declaration of value, and explaining that only if a guide insurance has been contracted is the carrier liable independently of its liability, which does not happen in the case of a declaration of value. It also referred to the bonus received by those who export goods such as those in question here.
In this case, and if the conclusion I have reached in Recital III of this vote is shared, it is appropriate to rule on the liability of United Airlines.
Consequently, it must reimburse La República Compañía de Seguros Generales SA the same amount that it paid to its insured, an amount that is less than the value declared in the air waybill on fs.6 (arg. art.22, inc.2º, Warsaw Convention of 1929).
United Airlines states in its memorial - as it had already done when pleading - that it was not proven in the proceedings that the additional fee that art. 22, paragraph 2, of the Warsaw Convention of 1929 establishes as a requirement of the obligation enshrined in the last paragraph of that rule had been paid (in such case - special declaration of interest in delivery plus payment of an eventual additional fee - the carrier will be obliged to pay up to the declared amount, unless it proves that such amount is greater than the sender's real interest in delivery).
However, as is clear from the preceding paragraphs, this issue was not raised in the response. Therefore, the statements made on the subject here (and also those made in the argument) constitute a late reflection that does not deserve to be considered, because it is opposed by the principle of consistency, which is linked to the constitutional guarantee of defence in court, as already developed in Recital III.
VI.- Therefore, and after having punctually considered -as appropriate (conf. Supreme Court of Justice of the Nation, Rulings: 258:304; 262:222; 278:271; 291:390; 308:584; among others)- the arguments and evidence conducive to the elucidation of the dispute (although, of course, I have studied absolutely each and every one of the records in the file and its additions), I propose to confirm the appealed judgment, in what was the subject of grievances.
Each of the appellants shall bear the costs of their own appeal.
It's my vote.
The Chamber Judge, Dr. Eduardo Vocos Conesa, for reasons similar to those given by the Chamber Judge, Dr. Marina Mariani de Vidal, agrees with the conclusions of his vote. With this the act ended.
Buenos Aires, March 2002.-
AND CONSIDERING: as a result of the foregoing agreement, the appealed judgment is confirmed insofar as it was the subject matter of grievances. Each of the appellants shall bear the costs incurred by their appeal (art. 68, first paragraph, of the Procedural Code).
Taking into account the currency of the award and the difficulties that currently exist in calculating the interest accrued on it in our domestic market, the Court deems it prudent to postpone consideration of the appeals on fees and the establishment of the appellate regulations - since the tariff base takes into account the capital of the award and said accessories (plenary La Territorial de Seguros SA v. STAF, dated 11.9.97) - until such time as the approved and firm liquidation is available.
It is noted that the third position of the Chamber is vacant (art. 109 of the Regulations for the National Justice).
Register, notify and return.
SIGNED: MARINA MARIANI DE VIDAL – EDUARDO VOCOS CONESA
