Adv. Gill Nadel, Moran Shmilovitz
Recently, a decision was given by the Magistrate's Court of Tel Aviv, in a case which raised the issue of proof of damage resting on an exporter, whose good were damaged due to a late arrival of the shipment.
This case involved an exporter who exported peppers to France and from there to a client in Holland. To do so, the exporter packed two containers of peppers, but the ship agent only loaded one container onto the ship. Soon after the unloading in France, it was noticed that one container was missing. The exporter was informed of this only once the container had already reached the client in Holland.
The missing container was sent to Holland a week later. The exporter filed an action against the ship agent and the international forwarder claiming that as a result of this delay, the quality of the peppers was diminished and were no longer suitable for sale
The court dismissed the exporter's suit.
The court ruled that on the exporter laid the burden of prove in regard to the cause of damage and his right to compensation, and that the importer failed to do both.
The court ruled that the exporter should have presented evidence that show what were the condition of the peppers at the time of their loading on the ship, and in this context, the exporter should have presented the court with proof concerning -the date the peppers were picked, the conditions of their storage, and how long before the peppers reached France could they be left on the shelf before expiring.
The court found that the testimony of the only witness on behalf of the importer was on the whole lacking in information regarding most of the facts, including- the condition of the peppers before they were stored, the refrigeration conditions of the peppers from the moment they were picked until the moment they were packed, and what became of them when they reached the client in Holland; and so the court found that there is great doubt on whether the merchandise was destroyed or sold in the end.
Regarding this matter, the court ruled that the exporter had the ability to call to testify not only the assessor who gave an opinion on his behalf, but could have also brought to court the client in Holland in order to give testimony.
The court noted that there is a possibility that the peppers that were packed and loaded on the ship were at the end of their shelf life.
The court accepted the claim of the ship agent that all in all the delay was only a matter of two days. The court found that since the exporter did not bring any opinion regarding the shelf life of the peppers, there was no reason to conclude that a shipment that took two days longer than expected, was enough to cause the peppers to rot.
The court accepted the claim of the forwarder that even after twenty one days of shipment, the peppers remain intact.
The court ruled that the certificate which the exporter presented as prove that harm was caused to the peppers- "phyto-sanitary certificate" does not prove that when the peppers were packed and loaded onto the ship, they were in high quality condition; it only proved that they did not have various types of diseases. The court ruled that the exporter should have presented a different document that testifies on the quality of the peppers, called a EuroGap certificate, and yet even though he did possess such a document he chose not to present it.
The court noted that the very fact that the exporter avoided bringing to court witnesses who could have contradicted the testimony of the witnesses of the opposing side, as well as his prevention in presenting the EuroGap certificate, undermined his own version.
Therefore, the court ruled that the action of the exporter should be dismissed for failing to meet the burden of proof.
CA 14840-06 Mortan Marketing and Trade v. AMA United Sea Agents Ltd. et al. Issued 5.5.10. Representation: For the exporter- Adv. Tali Anavi-Hakimi, for the marine shipper- Adv. Gabriel Disney, for the international forwarder- Adv. Einat Peletz-Polag.
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