Adv. Gill Nadel, Ohad Krief
In the following article we will review the case of a bicycle and electric vehicles importer ("the importer"), who hired the services of a forwarding and customs broker ("the forwarder"). The importer sued the forwarder for a delay in the release of goods from customs.
The importer required the forwarding of two crates from China to the port of Haifa. The crates arrived during the Jewish high-holidays (September-October), and were released close to a month later.
The importer claimed the forwarder failed to notify him in time of the arrival of the crates, which led to the delayed release of the cargo from customs. In addition, the importer claimed he preordered customs broker services from the forwarder, which were not performed in time.
The court accepted, in principal, the importer's claim that the forwarder should have notified him of the arrival of the cargo, and failed to do so. Even so, the court rejected the importer's claim since he failed to prove the relation between the lack of notification and the losses he claimed to have suffered.
Case Facts and Detailed Arguments:
The crates reached Israel during the Jewish high-holidays (September-October). Two weeks later, the forwarder notified the importer of the crates arrival, and was then required to take care of clearing and releasing the cargo from customs. The cargo was released two weeks later after the importer obtained a license he was missing.
The importer claimed the forwarder neglected its duties by failing to notify him of the arrival of the cargo, causing the importer 30,000 ILS worth of damages.
The importer added that due to his relationship with the forwarder, it was clear to him he would be provided with customs clearance services.
Conversely, the forwarder claimed the original contract with the importer included forwarding services only, as is common in the industry, and these services were provided without fault. The forwarder claimed the customs broker services were not preordered; rather, they were requested only after the arrival of the cargo.
Alternately, the forwarder claimed that if indeed there was an irregularity in notifying the importer of the arrival of the cargo, it was inconsequential. This is due to the importer possessing prior knowledge of the estimated arrival date, and the expected delay of imports during the Jewish high-holidays season.
In addition, the forwarder claimed that subsequent to the placement of the order for customs broker services, the fact that the importer lacks the proper trading license for the content of one of the crates was discovered, which led to additional delays.
The Court's Ruling:
The court first determined that it was proven the importer originally hired the forwarder to provide forwarding services, and only requested customs briker services at a later date, after the cargo reached Israel.
The court accepted the importer's claim that one of the obligations of the forwarder was to update him as to the state of his cargo's forwarding, as well as notifying him of its arrival. The court rejected the forwarder's argument that it received no request for information from the importer. The court ruled the importer is not required to "follow-up" on the forwarder; the forwarder is obligated to update the importer on the state of his cargo's forwarding.
In light of the above, the court determined the forwarder was negligent in notifying the importer of the arrival of his cargo only two weeks after its arrival. Even so, the court asserted the importer has not proven the relation between the forwarder's actions and his losses. This was due to the importer's prior knowledge of the estimated arrival date during the Jewish high-holidays, and if he truly wished to avoid procrastination, he should have planned the forwarding process appropriately.
Moreover, it was proven the importer delayed in obtaining the trading license necessary to release the spare parts from customs. Therefore, the blame for the resulting delay in release from customs lays with the importer.
In view of the above, the court ruled that even if the forwarder would have notified the importer of the arrival of the cargo immediately upon its arrival, it would have been of no consequence. The importer could not have released the goods from customs before the Jewish high-holidays due to the holiday work schedule and his lack of a proper trading license.
On account of all of the above, the court rejected the importer's claim, asserting his losses were due to his failure to properly plan the forwarding timetable. Therefore, the court imposed a 3,000 ILS trial cost to be paid by the importer.
[T.A. 39943-06-13, presented before senior notary Edi Lechner, ruling given on 29.10.15]
The above review is a summary. The information presented is for informative purposes only, and does not constitute legal advice.
For more information, please contact Adv. Gill Nadel, Chair of the Import, Export and Trade Law Practice
Email: Gill.Nadel@goldfarb.com Phone: 03-6089979.