The plaintiff, under the provisions of article 998-999 of the Civil Code, has applied for the obligation of the defendant to pay damages for the illegal detention of the ship by way of presidential ordinance, given the dismissal of the application for an arrest filed by the defendant.
In that case, the defendant requested the detention of the ship until the settlement of the application for an arrest, application upheld by Constanta Tribunal. Subsequently, the application for an arrest was dismissed by Constanta Tribunal (Minutes no. 82/MF/21.12.2006 – unpublished), the defendant formulating an appeal and application for the recess of the execution of the minutes of the first court. Although the application for the recess of the execution of the minutes of the first court was upheld by Constanta Court of Appeal, the appeal formulated against the same decision was dismissed.
Constanta Tribunal (Civil Decision no. 28/MF/28.04.2009 – unpublished) dismissed the plaintiff’s application for the obligation of the defendant to pay damages claimed for the abusive detention of the ship in question, forcing the defendant only to the payment of the legal costs incurred by the plaintiff in the cases for the detention and arrest of the ship.
The court held that the defendant justified a legitimate right in promoting the judicial actions by which it only sought to preserve its claim rights against the shipowner, being unable to claim that the defendant’s requests were intended to tease and harm the plaintiff, the exercise of a right being unable to represent an illegal deed for the simple reason that what is lawful cannot oppose the law.
The respective solution was maintained by Constanta Court of Appeal (Civil Decision no. 13/MF /26.10.2009 – unpublished), the motivation in its essence being that the exercise of a right cannot represent an illegal deed.
The High Court of Cassation and Justice (Decision no. 2284/16.06.2010 – unpublished) dismissed the appeal filed against the decision of Constanta Court of Appeal, basically with the same motivation as Constanta Court of Appeal, bringing excerpts from the specialized legal literature unanimously dismissing the grounding of a tort action in similar cases, the justification being grounded on the possibility of exercising a legitimate right in court.