Gil Nadel, Adv.
Two decisions handed down on the same day (15.10.07) by a judge of the Magistrate's Court of Haifa can give us an idea of the responsibility of the port for damages caused to containers that were loaded/unloaded there.
One case involved an action of sea carrier (Borchard Lines) and its agent against the port for damages caused to five containers (on five separate occasions). The second case involved an action of the sea carrier Andrew Weir Shipping Ltd against the port for damage to a container.
Generally, the court ruled that the status of the port is like a hired guard, since it is clear that the port receives payment for the container storage services on its property.
However, it is not enough to establish that the port is a hired guard, since there are two kinds of responsibility for hired guards.
When the guarding of the property is the main goal for which the property was given to the guard, the guard will be liable for all damage to the property, unless the damage was caused by circumstances that the guard should not have expected ahead of time and the results of which the guard could not have prevented. On the other hand, when the goal of guarding the property is secondary to the main purpose of holding the property, the guard bears lessened liability, and is exempt if the damage to the property was caused not via the negligence of the guard.
In light of the fact that the port is the party responsible for receiving the containers from the sea carriers and transferring them to their owners via bills of lading, the court found that the liability of the port is that of a “secondary” hired guard, since its main goal is not to guard the containers but to transport them from the ports of Israel to foreign ports and vice versa, their storage being an integral part of this transportation.
Accordingly, the carriers in our cases must prove the damage caused to them and its extent, and then the burden of proof switches to the port to prove that it was not negligent in its guarding.
In some of the cases, the carrier fulfilled its job, with the aid of some “flexibility” from the court (which can be critiqued). Thus, for example, in one case the carrier brought no witnesses to testify to the condition of the container at any one of the stations (port, terminal, train, etc), but on the other hand the port agreed, even before legal proceedings to pay, as a compromise, a certain sum. The court ruled that if the port suggested a certain sum as a compromise, apparently the port reached the conclusion that part of the damage was caused while the container was in the port and therefore awarded this sum to the carrier.
In one case, the carrier's representative saw the damage being caused to the container in the port, and the court accepted his testimony. Regarding the extent of the damage, as well, the court accepted the carrier's stance, since the port did not differ on it.
In another case, the carrier's representative testified that he saw the container upside down in the port area. In this case, the court ruled that the very fact that the container was seen upside down in the port clearly demonstrates that a certain event occurred that caused the container to overturn, and that this event was caused by the negligence of the port.
In other cases, the court rejected the carrier's suit, since the carrier did not bring witnesses to testify where the damaging even occurred and did not succeed in contradicting the port's claim that the damage was caused to the containers at a time when they were not stored in the port.
7543/00 Borcard Lines v. Port Authority,
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