In Buenos Aires, on the 23rd day of the month of August 2.001, the judges of Chamber I of this Court met in Agreement to issue a judgment in the proceedings mentioned in the epigraph, and in accordance with the order of the draw carried out, Judge Francisco de las Carreras said:
I. The judgment on pages 262/263 rejected the claim filed by PARSONS SA against PANALPINA TRANSPORTES MUNDIALES SA, with the costs of the trial in accordance with art. 68 of the CPCC.
II. In order to decide, the trial judge considered that it was necessary to resolve in advance the exceptions of lack of standing raised by PANALPINA TRANSPORTES MUNDIALES SA and, eventually, by MILLON AIR, cited as a third party at the request of the defendant.
That, based on the air waybill HKG 860280, the plaintiff sued PANALPINA TRANSPORTES MUNDIALES SA for the shortage produced in the transport instrumented in that document (page 10). Three parties are mentioned in it:
PANALPINA (Hong Kong- China) Ltd. As carrier.
PROFEEL ELECTRONICS Co. as a charger, and
PARSONS SA as consignee.
However, it considered that the plaintiff did not sue the person who should have done so, that is, the carrier PANALPINA (Hong Kong-China) Ltd., the issuer of the document.
PANALPINA TRANSPORTES MUNDIALES SA only acted in the proceedings as a deconsolidating agent, that is, it appears as a customs transport agent with its special characteristics, similar to a maritime transport agent, and it is clear that it is not responsible for the obligations of the former.
Regarding MILLON AIR, he considered that it is not responsible either, since it does not appear as the issuer of the master guide, nor as the actual carrier of the shipment.
III. The plaintiff appealed against said ruling on pages 269, expressing grievances on pages 286/287, which were not answered by the defendant.
IV. It is worth remembering that the sanction of desertion of the instance, due to its seriousness, must be applied with a favorable criterion to the appellant on condition that the aggrieved party individualizes, even to a minimal extent, the reasons for his disagreement (cfr. CNCiv, Sala E, 30/9/80, cited by Fenochietto-Arazzi, Código Procesal Civil y Comercial de la Nación Annotated, Ed. Astrea, 1993, Vol. 1, p. 945). This intelligence, and the broad criterion that this Chamber has in this regard, allow me to consider -with lenient judgment- that the memorial presented by the defendant minimally complies with the requirements demanded by art. 265 of the Procedural Code (cfr. this Chamber, case 4782/97, of 24/3/98).
V. Now, from the air waybill on page 10, as the judge clarified at the time, the parties involved in the air transport contract in question are clear. It is clear from its text, in fact, that PANALPINA TRANSPORTES MUNDIALES SA acts as a deconsolidating agent and PANALPINA HONG KONG-CHINA as the carrier. That being so, it would then be necessary to determine the scope of the action of PANALPINA TRANSPORTES MUNDIALES SA as a deconsolidating agent in the present proceedings, in order to decide the consequent liability that would arise from it.
That under such conditions, it is important to remember that this Court has already admitted that it is appropriate to equate the customs transport agent of art. 57 of law 22.415 with that of maritime customs agent, on the basis that the former filled a significant legal gap, insofar as such activity was only provided for agents of water transport means (cf. Case 648 of 23.2.90 and 4810/91 of 17.11.92, among others).
It should be added that the Jurisprudence has been clear in determining that the maritime agent, according to art. 194 of the navigation law, is the representative of the captain, owner or shipowner of the vessel, but as the agent that he is (executor of legal acts: voluntary and lawful), he is not responsible for the obligations of his representative, much less for the illegal acts committed by the former.
This does not mean that he is not obliged to represent him, in accordance with the provisions of art. 198 of the navigation law, but not to respond personally (conf. CNCiv, Sala B, case "Captain Cortés"
SA v. J. E Turner and Co. Maritime Agency» dated 31.10.80).
For the reasons set forth above, I consider that no exceptional reason has been established in the sub judice to justify the departure from the general principles mentioned, and therefore I conclude - in agreement with the judge a quo - that both the deconsolidating agent and the third party summoned to trial in this litigation remain outside the link and liability existing between the plaintiff and the carrier. And eventually, if there is any liability of the third party summoned in the occurrence of a damaging event, it must be clarified in another process, in which the losing party can assert its rights.
Accordingly, I vote to uphold the appealed judgment, without costs, since the defendant has not made any work in this instance (art. 68, second paragraph of the Procedural Code).
Dr. Martín D. Farrell supports the preceding vote.
Pursuant to the result set forth in the preceding Agreement, IT IS RESOLVED: to confirm the appealed judgment. Without costs due to the lack of work by the defendant in this instance (art. 68, second paragraph of the Procedural Code).
Let the cars go to regulate fees.
Only the undersigned intervene because the third position is vacant (art. 109 of the RJN).
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