Adv. Gill Nadel, Moran Shmilovitz
As we know, the laws of aerial shipping grant various benefits to an air carrier, including limited liability and shortened limitation period.
An important question on this subject is whether or not an international forwarder may also enjoy these benefits; in other words- can an international forwarder enjoy the status of an air carrier?
The Warsaw Convention and the Aviation TransportLaw do not directly define who is an air carrier. As a result there is a wider range of possibilities, in legal terms, to protect international forwarders with the Warsaw Convention, and this has been done in the past.
Recently, the matter was discussed by the Magistrate's Court in Ashdod.
The case involved a clothing importer who imported merchandise from Italy during May 2007. The merchandise was stored in theterminal containerwarehouses. A physical inspection by the customs inspector revealed a discrepancy between the items that were counted and the items that were declared on the import documents. After two years from the date that the merchandise reached the importer's warehouses, the importer filed an action against the international forwarder for the allegedly missing cargo that came with the shipment.
The international forwarder requested a clear dismissal based on the limitation period. According to his claim, the limitation period of the Warsaw Convention bars this action, as more than two years had gone by between the date the aerial shipment took off and the date in which the action was filed by the importer.
The court accepted the stance of the forwarder.
As we know, the Warsaw Convention sets a limitation period of two years to file an action against an air carrier for damage caused during carriage, and in the words of the convention: "The right to damages shall be extinguished if an action is not filed within two years, from the date of the air carrier’s arrival to its destination, or from the date onwhich the aircraft ought to have arrived, or from the date onwhich the carriage stopped."
The court ruled that the destination of the merchandise was the container terminal warehouse and not the importer's warehouses, and therefore the date for filing the action was two years from the day on which the merchandise reached the container terminal. The court noted that the importer could have left the goods in the container terminal for a long time, and therefore it was incorrect to determine the period of limitation from the time the merchandise reached the importer's warehouses. With regard to this the court ruled that the action of the importer had missed the limitation period.
The court noted that even if it would have accepted the stance of the importer and relied on his documentation to determine the date of the arrival of the merchandise to its warehouses, even then the conclusion would have been that the limitation period had passed, due to the fact that the importer filed the action after this time.
(CA 09-1003 Ziva v. Ma'agan Insurance Agency (1997) Ltd. et al. Decision issued 2.5.10)
Recognition of an international forwarder as an air carrier was also accepted by the Magistrate's Court of Tel Aviv (CA 161220-09 Amit Customs Representation and Transportation Ltd. v. Barzilai Designers Ltd.) This particular case involved a counter-suit filed against an international forwarder for not bringing the shipment to its destination on time. The forwarder filed a petition to the court asking it for a clear dismissal based on the limitation period. The forwarder claimed that the limitation period of the Warsaw Convention barred the action, since over two years had passed from the date of the air carriage until the date of the filing of the counter-suit against him.
The court accepted the stance of the forwarder. The court ruled that the forwarder served as a commercial body that accepts payment for the transportation of goods by aircraft, and performs air carriage in the same way that it is defined in the Aviation Transport Law and the Warsaw Convention. The court relied on the previous decisions of the Magistrate's Court (CA 7744/05 Shefi Optical Industries Ltd. v. DHL for Israel Ltd.) which stated that according to the tools of purposive interpretation, a forwarder who provides a bill of lading and operates as a shipper, does in fact engage in aerial transport and therefore under the Aviation Transport Law, the Warsaw Convention applies to him.
It should be noted that in another case discussed by the Magistrate's Court of Jerusalem, an international forwarder's petition to rely on the instructions of the Warsaw Convention was rejected. However, the reason for the dismissal was not based on principle but on the circumstances of the case, since the court had its doubts on the whether or not the damage related to the case was covered by the Warsaw Convention. (The plaintiff in the case claimed that the damage occurred after the air leg had been completed). (MCA 3431/09 Amex v. Jack Susanna et al.)
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