Attorney Gil Nadel, Gilad Paz
The District Court of Tel Aviv recently accepted an appeal submitted by a couple who imported the content of their home from the US to Israel, against the international forwarder.
The couple claimed that the international importer forced them to sign a waiver of all claims against him in order to release their possessions, but charged them at a higher rate than had been agreed upon.
The Magistrates Court dismissed the couple's appeal in limine due to the waiver, and the District Court reversed this decision, and determined that testimony must be heard regarding the circumstances under which the waiver was signed, in order to determined whether the waiver is legally valid.
The case and claims made by the parties:
A couple who immigrated from the US to Israel hired the services of an international forwarder, Global Ocean Freight, Inc., in order to transfer the content of their home to Israel. The shipment include many articles of sentimental value, including personal articles of their deceased daughter, who had been killed in the Arad disaster.
The coupled claimed to have paid the forwarding company a sum of $5,700 in advance, which included all the expenses of the cargo's shipment, including expenses for releasing the cargo in Israel.
When the couple's cargo arrived in Israel, its release was delayed for over three months, due to an accident that involved the ship on its way to Israel, and due, as claimed by the couple, to the procrastination of the forwarder's representative in Israel in the cargo's release.
Eventually the couple paid an additional sum to the forwarder's representative in Israel in order to release their shipment and they even claim to have been coerced into signing a lawsuit waiver so that their shipment would be released. The couple claim that the forwarder threatened to send the shipment back to the US if they would not sign the waiver and pay the additional sum.
After the cargo was released, the couple filed a lawsuit to the Magistrates Court in Tel Aviv against Global, against the forwarder's representative in Israel and against the shipping company.
The Magistrate's Court decided to cancel the lawsuit in limine on account of the signed waiver and without hearing any evidence.
In response the couple submitted an appeal on the Magistrates Court's decision to the District Court.
The District Court's decision on the appeal:
The District Court accepted the appeal and determined that the couple's claims to have signed the waiver under conditions of coercion and exploitation on the part of the forwarder's representative in Israel, place doubt upon the waiver's validity and testimony must be heard regarding the circumstances under which the waiver was signed.
Therefore, the appeal was accepted and the sitting was transferred back to the Magistrates Court for testimonies. The forwarder's representative was charged NIS 15,000 in expenses paid to the couple, in light of the appeal being accepted.
[Civil appeal (Tel Aviv District Court) 21998-03-11 Itzhak vs. Dover, Judge Ruth Levhar Sharon, verdict of October 16, 2012. On behalf of the importer- Attorney Haim Cohen. On behalf of the forwarder- Attorney Ilan Orly].
Notes:
Canceling a lawsuit in limine without hearing testimony is considered extreme and draconian and courts tend to grant this aid only in exceptional cases. The significance of canceling a lawsuit in limine is that the prosecutor is denied his day in court and that the court's gates are locked to him, in practice. Since the right for access to court is considered to be a constitutional right in Israel, the courts cancel lawsuits in limine only for lack of any other option and only when it is entirely evident to them that the prosecutor doesn't have the slightest chance to succeed in his lawsuit. In this case, the District Court chose to allow the couple to have their day in court by determining that the Magistrates Court must hear testimony regarding the circumstances under which the waiver was signed.
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