Gill Nadel, Adv.
The decision of Magistrate's Court of Tel Aviv on the Menora v. Amit and Overseas case sharply presents the classic distinction (in tort damages actions) between the liability of the damager and the sum of the damages to which the injured is entitled and the difficulty entailed in the means of proving damage. As it was ruled in that case, the damager (Overseas) was found liable for the damages of the injured (the Menora insurance company, stepping into the shoes of the insured, the Teva company), but the injured did not prove its damages and therefore was not eligible for compensation (Civil Case 69187/03 Menora v. Port Authority et. al, decision given 13.11.08).
The case involved the subrogation suit of the Menora Company filed against the Ashdod port, the driver who signed the gate pass, Overseas Commerce, and Amit Customs Agency and Transportation, for compensation for insurance remuneration made to its client, the Teva Company, for theft of cargo. As the action against the port was dismissed and a decision was given against the driver in absence of defense, the court continued to discuss whether the gate pass was stolen from Overseas or whether it had been returned to Amit and stolen from it.
The court ruled that Overseas acted as a paid watchman regarding the cargo and that, as such, it had the duty to guard the gate pass well, in light of the importance of this document that enabled its bearer to take the cargo into his possession. The court ruled that "Overseas breached its duty of care and was negligent towards the gate pass and the cargo of the insured and for this negligence allowed the theft. Therefore Overseas is liable for damages that were caused to the plaintiff as a result of this negligence."
Despite this ruling, Menora did not receive a decision making it eligible for payment of compensation by the Overseas Company, since, in the words of the court, Menora "did not think to bring the proper witnesses to prove the damage and therefore failed in its proof".
What evidence did Menora present to the court for the purpose of receiving damages, and why was this evidence not accepted? Here is the full breakdown:
An appraiser's report- Menora presented the expert opinion of its appraiser that estimated the value of the cargo that was stolen, but it was argued that the documents on which the appraiser relied in his opinion were the result of hearsay testimony and that they were therefore inadmissible.
Purchase invoices from the supplier- These invoices listed the types of raw material which the insured had ordered, the number of sacks, their weight and cost, but the foreign supplier did not testify regarding these documents, and the court would not accept them as evidence.
Import Entry- In the import entry, information appeared regarding the value of the goods and the quantity of the merchandise. However, this information was based on documents presented by the importer or his agents, and therefore the entry editor (the customs agent) could not testify to the veracity of the information.
The bill of lading- The bill of lading serves as evidence (regarding all points it does not withdraw from) for the receipt of the goods listed in it by the shipper and its evidential force is valid, according to past decisions, even when the action using it is between the marine shipper and the sender's insurer. Our case, however, is not an action against a shipper, and therefore the bill of lading cannot serve as evidence, particularly because there is a mismatch between the container number appearing on the bill of lading and the number of the container that disappeared.
Stock report- The stock report was complied when the cargo was unloaded from the boat and it notes the amount and condition of the merchandise during unloading, but when doubt is cast upon the content of the container an the condition of the cargo throughout the entire shipping process, from the moment of packaging, the stock report cannot help us.
The gate pass and accompanying certificate- These documents noted the weight of the cargo, but this data was copied from the bill of lading and therefore these documents cannot constitute an independent source.
As mentioned, the court ruled that Menora "did not think to bring the proper witnesses to prove the damage and therefore failed in its proof". The court was aware of the fact that some of the above documents constitute institutional records, which serve as admissible evidence to prove the veracity of their content, without bringing those who compiled the documents, but the court noted that as the plaintiff did not prove the condition demanded in this paragraph, it should be assumed that the matter will be discussed in the appeal, in the event that one is filed.
Paragraph 36 to the Evidence Ordinance states that "an institutional record shall be admissible evidence proving the veracity of its contents in every legal proceeding, if the following conditions are met: 1. the institution habitually, in the course of its regular business, compiles a record of the event discussed in the record immediately following its happening; 2. the method of gathering the data presented in the record and the manner of compiling the record are sufficient to testify to the veracity of the record's content; 3. if the record is output- it was additionally proven that: a. the manner of producing the record testifies to its credibility; b. the institution takes, in an organized manner, reasonable means of precaution to prevent infiltration of computer material and bugs in computer work."
The question of the admissibility of evidentiary material as institutional records regarding the laws of shipping and forwarding was discussed in the past by the District Court of Tel Aviv, regarding the demand for payment for days of delay. In that case, the District Court ruled that: "We believe that the demand for payment does represent an institutional record, by which means it is possible to prove the debt of the respondent for the days of delay. It is possible even to rely on the bills f lading to learn what was the tariff agreed upon for every day of delay. This tariff was entered on the bill of lading, and there is nothing in the agreements reached orally regarding the number of "free days" to show that the other conditions listed in the bill of lading were also changed. However, in the event that we are dealing with an institutional record that is computer output, and when the appellant did not meet the burden of proving the existence of the conditions listed in paragraph 36 of the Evidentiary Code, this demand for payment should not be accepted as proof of the veracity of its content and there is no choice but to dismiss the case" (Civil Appeal 1671/04 (Central Tel Aviv) Atlantica v. Ashad, decision given 25.7.06).
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