Adv. Gill Nadel, Adv. Dave Zeitoun,Adv. Orel Asulin Hike
An air conditioning company signed an agreement with an international forwarder on 25.9.08 for the forwarding of cooling equipment it owns from the Haifa Port to Russia, including a certain overland transport section. The shipment was intended for the company's client in Russia, to whom it committed to provide the equipment by 10.10.08, with the order emphasizing that meeting the agreed delivery deadline is crucial. The forwarding and release of the goods met various hurdles, and the parties filed mutual damage claims against each other.
Parties' Arguments:
The company argued that the forwarder violated the agreement by forwarding the goods to a different destination than the agreed upon destination at the time of signing. The company claimed that it incurred considerable losses, as it was forced to order alternative equipment for the client and temporarily install it until the shipment arrived from Israel.
On the other hand, the forwarder argued that it fulfilled its obligations under the agreement with the company. The forwarder added that during the shipping to Russia, the goods were barred from entry and release since they required approval for the release of the shipment and power of attorney documents, which the company failed to provide to the forwarder ahead of time.
Furthermore, the forwarder argued that the company did not provide instructions regarding how to handle the goods, and later requested their return to Israel, a request the forwarder agreed to on the condition of payment for his efforts. The forwarder was later informed that it must store the goods in Europe, but the company refused to cover the costs, forcing the forwarder to pay for storing the goods in Greece.
The forwarder claimed losses incurred during its work, loss of work days, storage costs in Greece and delays in Russia.
discussion:
The court examined the agreement between the parties, and heard testimonies from involved entities. Based on the information and testimonies presented to the court, it concluded that the failure in the forwarding of the goods was due to the lack of appropriate approvals for the forwarded goods, and not due to a failure related to the forwarder's vehicle transporting the goods.
The court therefore examined which entity was responsible for obtaining the appropriate approvals for the goods, a matter not addressed by the agreement. The court ruled that the forwarder should have informed the company at the time of signing that the goods require the said approvals, and that the company is expected to obtain them.
The court determined that the forwarder violated the agreement with the company by changing the shipping route, and that it was late in delivering the goods to Russia.
The court also determined that the company failed to minimize its losses, as it did not cooperate in real time with the forwarder who "got stuck" with the goods, and eventually requested that the goods be returned to Israel.
In light of the above, the court concluded that each party has a 50% contribution to the other party's losses, and therefore ruled that each party must compensate the other according to their respective losses.
[TA 166486/09,. Presiding judge:Ehud Shimshon Shwartz. Ruling given on 31.12.19]
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.comPhone: 03-6089979.
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