Transport law specialist Specialist Partner Oscari Seppälä from LKOS Law Office prepared an expert opinion for an insurance company to be used in the Finnish Financial Ombudsman Bureau’s Insurance Complaints Board to support the decision of the insurance company in the matter.
The decision of the Finnish Financial Ombudsman Bureau’s Insurance Complaints Board (FINE-046296) states that the insurance company has requested an expert opinion on the matter from Specialist Partner Oscari Seppälä, who is specialised in transportation law and his expert opinion shares the views of the insurance company Y regarding the applicable legislation and precedence of the law.
As a final decision, the Finnish Financial Ombudsman Bureau’s Insurance Complaints Board states that the Insurance Complaints Board considers the insurance company’s decision in the matter to be correct and does not recommend it to be changed. Furthermore, the Insurance Complaints Board was unanimous regarding the decision. The decision absorbed by the Insurance Complaints Board is in line to the expert opinion given in the case by Specialist Partner Oscari Seppälä from LKOS Law Office.
The party A in the matter had ordered the lifting, transport and lowering service of the sailboat from H Oy. The sailboat had been agreed to be lowered in the boatyard in front of a hall. The transport was completed on 12 September 2019. H Oy had asked its subcontractor N Oy to lift the boat from H Oy’s transport truck. During the lifting, the ground under the crane’s support leg failed, the crane turned sideways and the sailboat’s keel hit the ground.
Insurance company Y, as H Oy’s transport insurer, has issued a compensation decision dated 21 December 2021 in the case. According to the decision the claim for payment of transport damage had expired on 13 September 2020, according to the paragraph 41 § of the Finnish Road Transport Contracts Act (“RTA”) (which corresponds to the CMR convention including some domestic exceptions), as the boat was delivered to the recipient on 12 September 2019. Therefore, compensation from the applicable insurance cannot therefore be paid. However, P claimed that the liability on the matter is based on the Finnish Consumer Protection Act (“CPA”) in addition to the RTA. Therefore, the limitation period according to the RTA will therefore not be applied when evaluating the liability in the matter based on the CPA.
Furthermore, the case was about whether the RTA or the CPA applies to the contract between A and H Oy. Further to this, it was also reviewed a question whether insurance company P’s recourse claim was expired.
The decision recommendation of the Finnish Financial Ombudsman Bureau’s Insurance Complaints Board states that:
“However, since the RTA applies as a special law to a transport contract between a trader and a consumer, the provisions of the CPA cede in such a situation. The content and expiration of H Oy’s liability is thus determined according to the RTA.”
The Finnish Financial Ombudsman Bureau’s Insurance Complaints Board decision corresponds to both the previous case law of the Finnish Court of Appeal and views presented in the Finnish legal literature. Naturally, the decision coincides with the expert opinion given by Specialist Partner Oscari Seppälä from LKOS Law Office.
The matter basically concerned the applicability of two mandatory legislations in the matter, i.e. the RTA (345/1979, as amended) and the CPA (38/1978, as amended). Only one of them could be applied in the matter. The decision also confirmed the general principle that special law has precedence over general law.
The Finnish Financial Ombudsman Bureau’s Insurance Complaints Board is an independent dispute resolution body in insurance, banking and investment matters. The Finnish Financial Ombudsman Bureau (“FINE”) is not an authority, but an independent organization whose operation is based on an agreement between the Financial Supervisory Authority, the Finnish Competition and Consumer Agency and Finance Finland ry. It is also an alternative dispute resolution body to the court.
FINE’s advisory and solution activities are objective and independent. FINE’s office and boards do not take instructions from the contracting parties or other parties. Those participating in the resolution activities must have the professional and legal expertise required for their tasks. The members of the boards are representatives of both service providers and business life, the judiciary, authorities, universities, the social and health sector, and consumer organizations.
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** The article is for information and not as a legal advice.