Суд г. Рио-де-Жанейро, Бразилия, не нашел в договоре морского агентирования признаков коммерческого представительства. Апелляционная инстанция поддержала эту позицию. Повторная апелляция находится в процессе рассмотрения.
February 08 2012
A Santa Catarina maritime agent filed an action for damages against a shipping company with which it had a maritime agency contract when the contract was terminated without reason.
The claimant argued that the defendant should indemnify it for a sum corresponding to one-twelfth of all commissions received over the course of the contract, to be ascertained in liquidation, adjusted for inflation and together with interest. According to the claimant, these commissions referred to the commercial representation that it had performed for the defendant over almost 30 years of the contract (ie, the period during which it had collected cargo for the defendant).
The lawsuit was originally filed at a Santa Catarina court, but jurisdiction was declined. The case was transferred to the Rio de Janeiro courts, due to contractual provisions. Following discovery, the Rio de Janeiro court judged the lawsuit groundless, as it understood that the maritime agency contract entered by the parties was not in the nature of a commercial representation. The claimant appealled to the Rio de Janeiro Court of Appeals.(1)
The appeal was heard by the Second Civil Chamber, which unanimously rejected it. The reporting appellate judge pointed out that as a maritime agent, the claimant had acted as the shipping company’s representative, performing duties in the capacity of:
- a protecting agent when it aided the shipping company in activities relating to management of the ship; and
- a commercial agent when, under the guidance of the shipping company, it signed bills of lading and contracted with cargo interests.
It was therefore not possible to classify this relationship as commercial representation.
The judge compared a commercial representation contract (defined in Law 4886/65), as performed by a commercial agent, with an agency contract (defined in Article 653 of the Civil Code), as performed by a agent or representative. According to the law, an ‘autonomous commercial agent’ is:
“[the] legal entity or individual with no employment relationship that performs mediation on a non-occasional basis for one or more people, for carrying out mercantile business, acting on behalf of someone with respect to proposals or orders and transmitting them to the principal, practicing or not acts related to the execution of the business.”
On the other hand, a ‘representative’ is someone “who receive powers from someone else to act on their behalf or administer interests”.
The judge also pointed out that:
- the claimant’s articles of incorporation did not establish commercial agency as an activity of the company; and
- the claimant was not registered with the Commercial Agency Class Council.
The decision was appealed by the claimant, and judgment is still pending.
Автор:
- Mr Godofredo Mendes Vianna, Partner
- Law Offices Carl Kincaid – Rio de Janeiro, Brazil
- godofredo@kincaid.com.br