Is the Haifa port responsible for damage discovered on a cargo of sesame?

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by: gill@nadel-law.co.il
Word Count: 1058
Date: Wed, 7 Dec 2011 Time: 1:56 AM

Recently, the Magistrate court of Tel Aviv rejected an importer’s claim against the Port of Haifa for being liable for dampness, which caused damages to a sesame cargo which was stored in a container at the port. The court determined that the importer failed to prove that the damage was caused at the time the container was at the Haifa port.

The facts of the case:
During 2006, six containers of more than 100 ton of sesame were loaded on a ship abroad. The containers made their way from France to the Haifa port, and when they arrived, the importer noticed that there was a large hole in the upper part of one of the containers and that the sacks in the container were wet and damaged.
The importer estimated the damage at 85,000 NIS and filed a claim against the marine company and the Haifa port for compensation.
The claim against the marine company was erased due to limitation, and the court was left to discuss only the importer’s claim against the Haifa port.

The importer’s claims:
The importer claimed that the damage was done while the containers were at the port, because of the port's negligence or breach of its obligation to guard and keep safe (the goods) of the importer. The importer relied on bills of lading which show that, as he claimed, the containers and the cargo in them were intact when they were loaded on the ship. Therefore, claimed the importer, the burden of proof should pass to the port since it must be shown that the damage did not occur while the containers were in its care.

The port’s claims:
The port claimed that the damage was not caused while in its possession and that it did all it could to keep it safe.

It further claimed that the cargo was not properly marked and that it was not packed well enough or stored adequately while transported on land (after being released from the port). 
Furthermore, the port relied on the opinion of a marine assessor, according to which the container was damaged during one of the transportation stages, probably after placing a container facility on top of the container, but all this did not necessarily happen in the Haifa port. The expert further said that the container was in poor condition and its roof was in a rusty state, therefore the container should not have been used and the blame should be put on the owner of the container (the marine company) and not on the port. Finally, the port claimed the container was moved around at least three times on its way to Israel and the damage was not caused in Israel but in another port outside it.

The court’s decision:

The court determined that the importer did not prove that the damage was caused while the cargo was in the Haifa port. Therefore the court decided that the importer did not fulfill his duty in proving his claim, and denied his request to pass the burden of proof on to the Haifa port.

The court accepted the port’s claim that the damage was mainly caused because of the container’s poor condition and that this was the fault of the owner of the container.  
In addition, the court decided that the importer did not prove the rate of damage caused to him, and noted that he can not rely on the bill of lading as evidence that the cargo was intact, since the person who wrote it was not brought to testify.

In light of this, the court dismissed the claim against Haifa port and charged the importer with 12,000 NIS for expenses and attorney fees.

(C.F. (civil file) (magistrate Tel Aviv) 63355-07 Sahara food industry Ltd. Et Al. v. Marsk Israel Ltd. Et Al., Judge Michael Tamir, verdict from 2.5.11 The representatives of the parties: for the importer – Adv. Oslander , for the Haifa port – Adv. Grushkevich)

About the Author

Gill Nadel - Born in Israel in 1969, graduated from Bar Ilan University`s Faculty of Law (cum laude) and from the Department of Musicology. He also has a master`s degree in law from the same institution. Member of the Israel Bar since 1999. Speaks Hebrew, English and Polish. Fields of expertise: Commercial and Business Law, International Trade Law, Import and Export Law, Intellectual Property Law, Maritime and International Forwarding Law, Litigation and Court Representation. Adv. Nadel provides lectures on international trade law and import and export law to in courses organized by the Bar Ilan University Center for Commercial Law, Israel Bar, Israel Chambers of Commerce, Manufacturers Association of Israel, Israel Export Institute, Customs Brokers Association, International Forwarders, and more.

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