Attorney Gil Nadel, Gilad Paz
The Magistrates Court of Haifa has recently deferred a lawsuit of a company for shipping containers against Haifa Port, for damage caused to a container that was located at the port (damage caused to the container itself, not to the items within it).
The reason for this deferral was that the prosecutor, the owner of the containers, had not presented to the court ample evidence by which the value of the container prior to the damage could be proven.
There was a similar case a few years ago, where a lawsuit was deferred for the same reason.
By analyzing these two cases we can conclude that the court will not accept the testimony of a party of interest regarding the market value of a container, and will demand a professional opinion on the matter or any other support that is sufficiently convincing.
A. The case of Carmel vs. Haifa Port- November 2012:
The Carmel Shipping company deals with the shipping, handling and supply of containers for its clients in ports throughout Israel, including Haifa.
One of the containers owned by Carmel was unloaded in Haifa Port during 2002 and remained there for five years, until 2007.
Carmel claims the container was not released in light of the fact that it had suffered such severe damage that there was no point in repairing it.
The lawsuit against the port was submitted in 2008, for a sum of NIS 23,000, out of which NIS 11,000 were for repair expenses and another NIS 12,000 for 4 years of storage fees.
During the lawsuit Carmel claimed that the damage to the container was caused due to factors that were under the port's jurisdiction since the container had arrived at the port in good condition and had been damaged while it was being unloaded or transported.
In fact, this claim is based on clause 41 of the Damage Directive, otherwise known as the legal principle of "the matter speaks for itself". According to this principle, when damage is caused to a certain asset, which had been under the control of the defendant at the time the damage had occurred, and the prosecutor lacks precise information /regarding the manner in which the damage had occurred, it is up to the defendant to prove that the damage had not been caused as a result of negligence.
The court decided to defer this lawsuit on both accounts.
Regarding the damage to the container, the court noted that it had not been presented with proof of the container's value. The prosecutor claimed that the container that had been damage had been worth $2600, but they had failed to present any proof of such except for the testimony of one of its managers, and the court found this unsatisfactory.
The court further noted that the original lawsuit requested compensation for the expenses of repairing the container but it was not proven that such a repair had indeed been carried out or was meant to be carried out.
As for storage costs, the court determined that Carmel had no justification in leaving the container at the port over the course of four years and they should have released it beforehand and they are therefore not entitled to compensation of storage costs.
At the bottom line, the lawsuit was deferred on both counts, and Carmel was required to pay legal fees of NIS 4,000 to Haifa port.
[Summary procedure (Haifa Magistrates Court) 2436-08 Carmel International Shipping Services Ltd., Judge Tamar Naot-Perry, verdict of November, 15, 2012. Party representatives were not noted].
The case of Mudfry Lines vs. Halpern- 2004:
The marine carrier Mudfry Lines, whose acting Israeli agent was the Alaluf company, submitted a lawsuit for NIS 8,277 against an importer for failure to return a container. The importer denied having failed to return the container and the marine carrier based his case primarily on the delivery order that had been given to the importer and on the fact that many years had since passed.
The court determined that the marine carrier had failed to prove that the importer had not returned the container, but even if we supposed that this point could be overlooked, the court determined that the carrier had failed to prove the value of the container, determining thus:
"The container that had been lost, is not a "rare commodity", unique of its kind. This is a container which it can be assumed that there are many others just like it. The prosecutor could have produced a professional assessment of its value, based upon the container's size, its "age", its structure, the materials used to manufacture it and so forth. Any professional in this field could have given an evaluation of its worth".
Since no direct testimony was given on this matter aside from a few statements given by the marine carrier's Israeli representative, the court deferred the lawsuit.
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