Attorney Gil Nadel
In our times, a significant portion of international trade is carried out by means of transporting containers via sea transport. The document which accompanies the shipment during the transport, is known as the marine bill of lading. This bill of lading is usually written out by the shipment company or another party on its behalf, and therefore naturally protects the interests of the shipment company.
The importer/exporter is usually not a direct party to the bill of lading and does not sign it, yet this document is handed over to the importer, for instance, for the sake of releasing the cargo.
Does this bill of lading and all its conditions obligate the importer in all cases, or are there certain situations where the importer can evade some of the conditions?
Recently, an importer tried to claim that a one year statute of limitations did not apply to him, but the Haifa Magistrates Court deferred this claim.
There is one instance that had been ruled more than 10 years ago, where it had was determined that a condition of arbitration did not obligate the exporter.
The statute of limitations does obligate the importer:
A shipment of cargo that had been imported by Abu-Zina through the Zim shipment company had been damaged by water that had filtered into the container. The company submitted a lawsuit against Zim for damage to the cargo.
Zim requested the lawsuit against them to be canceled in limine since it had been submitted after more than a year since the damage had occurred, and in light of the fundamental statute of limitations which applies to lawsuits against marine carriers.
Zim referred to the Sea Transport Ordinance, which in turn refers to the ordinances of The Hague on matters of bills of lading. These ordinances determine, among other things, an abbreviated statute of limitations of one year in lawsuits that deal with damage caused during sea transport.
The importer attempted to push aside this statute of limitations and claimed that he is not a party to the bill of lading, and, alternatively, that he was not aware of the statute of limitations and in any case this is a discriminating condition in a standard contract. In addition, the importer claimed that he has additional cause for prosecution aside from the prosecution according to the Sea Transport Ordinance, and these causes have not reached their statute of limitations in any case.
The court examined the importer's claims and deferred them one after the other. The court determined that the bill of lading acts as a contract between the importer and Zim, and that in this particular case, the bill of lading was endorsed by the bank in favor of the importer for the sake of receiving credit.
Furthermore, the court noted that the importer's right to receiving the shipment is derived from the bill of lading's authoritative power.
In addition, the court noted that the original lawsuit had been submitted to the court in Jerusalem (not in Haifa), and after Zim requested the hearing to be transferred to Haifa, the court then determined that the stipulation of jurisdiction in the bill of lading which gives Haifa the authority for jurisdiction- obligates the importer. The court viewed this as reinforcement of the importer's obligation to the bill of lading and all that it states.
The court noted that it is impossible to overlook that statute of limitations and it is not possible to bypass this rationale by submitting a lawsuit for other causes.
Therefore, the court canceled the lawsuit in limine due to the statute of limitations and even charged the importer with paying legal fees of NIS 5,000 to Zim.
[Civil suit (Haifa Magistrates Court) 21096-10-10 Abu Zina for Foodstuffs Ltd. vs. Zim Integrated Shipping Services Ltd., decision of November 4, 2012, Judge Tamar Naot-Perry. Party representatives were not noted].
The stipulation of arbitration does not obligate the exporter:
An Israeli company (Yovel Computerization) collaborated with an international forwarder (Usen Air and Sea) for the purpose of shipping equipment to one of their clients in Singapore. Yovel Computerization submitted a lawsuit to the Tel Aviv District Court against the forwarder, claiming that the forwarder transferred the shipment to the client in Singapore without confirming whether the payment had been transferred to Yovel Computerization.
The forwarder requested of the court to order this proceeding into arbitration, according to the arbitration clause included in the bill of lading. In opposition to this, Yovel replied that they had not signed the bill of lading, and was not aware of the arbitration clause, and thus, this clause is not valid.
The Tel Aviv District Court deferred the request for this proceeding to go into arbitration. Thecourt determined that Yovel Computerization had not expressed any sort of agreement to the arbitration clause in the bill of lading. The court discovered that Yovel had not signed the bill of lading, and that the conditions of the bill of lading had not been brought to their attention. The court also found that the conditions of the bill of lading where not brought to Yovel's attention through its Customs agent either, through which they had ordered the shipment.
The Supreme Court approved the District Court's verdict.
[Permission for civil appeal 1157/02 Usen Air and Sea vs. Yovel Direct Computerization Ltd. et al- given March 25, 2002].
Notes:
When there is no clear indication that the party who has ordered the shipment (the importer/exporter) had agreed to the conditions as detailed in the bill of lading, it can be claimed that certain clauses of the bill of lading are not obligatory towards the party who has ordered the shipment, among them the stipulation of arbitration. There is no clear ruling on this matter, and the courts will consider each case as it arises. And yet, there are certain conditions (i.e.: limited warranty clauses, statute of limitations) that are applicable in all instances, since they are firmly rooted in Israeli law (Sea Transport Ordinance, the Air Transport Law), according to the law's instructions.
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