Gill Nadel, Adv.
As we know, a marine carrier has a shortened period of limitation of a year. The law establishes that a marine carrier is exempt from all responsibility regarding goods if a suit is not filed with the court within a year after the date of the transmission of the goods (Paragraph 6III to the Hague-Visby rules, adopted in the Code for Shipping Goods by Sea).
On the other hand, paragraph 6III(a) to the Hague-Visby rules includes an exception, and establishes that a suit for compensation of a third party can be filed even after a year, according to the laws of limitation of the state of Israel. However the local court in Tel Aviv (בשא 152317/07) recently ruled that an international forwarder cannot avail itself of this paragraph.
That case involves an international forwarder that issued its own bill of lading (FBL) to the exporter, and to whom a “master” bill of lading was issued by the marine carrier. The international forwarder was sued by the exporter’s insurance company for loss of the cargo, and it filed a third-party notice (after the year had ended) against the marine carrier. The international forwarder claimed that the suit is based on paragraph 6IIIa of the Hague-Visby rules, while the marine shipper argued for a period of limitation of a year, in accordance with paragraph 6III.
The court accepted the opinion of the marine carrier and ruled that paragraph 6III refers to the interactions of the carrier (against whom the suit is brought) and the sender or receiver (or their stand-ins). Conversely, paragraph 6IIIa refers to the date of filing a compensation suit against a third party. Thus, the court ruled that the third party referred to is not the sender or the receiver (or their equivalents)- which are one side- and also not the carrier- as the other side, and therefore a suit against the carrier cannot be included in paragraph 6IIIa.
In our opinion, the decision is not free of criticism. In light of the results of the ruling, the international forwarder is put in a completely vulnerable position to suits for damages to the cargo. True, the bill of lading of the international forwarder generally includes a shortened period of limitation of nine months, but this arrangement is not anchored in the law, unlike the period of limitation of the marine carrier, and its standing is weaker. This issue becomes even more critical in a case of an international forwarder who acts as a shipping middle-man and who doesn’t even produce a bill of lading. In that case, if it is sued together with the marine carrier, and the suit is filed against it after a year, who can it go after?
We also find another opinion on the subject: The case of an international forwarder that produces a bill of lading has already been addressed by the Court for Uniform Contracts in the case of Transclal (עש 7029/99), which ruled that the international forwarder may enjoy the exception of paragraph 6IIIa: “From what has been said it arises that, in fact, in a suit for compensation against the carrier for debts that the forwarder, its customer, incurred according to the bill of lading issued by the forwarder, the forwarder can, at least if it is considered a “carrier” according to the conventions, file suit after a year from the shipment of the cargo. As this is the case, there is no place to limit the period of limitation of the customer’s suit against the forwarder to a period shorter than the one established in the Hague statutes and in the Warsaw Convention.”
It seems, then, that the decision of the local court contradicts the decision of the Court for Uniform Contracts. We have no choice but to wait and see whether an appeal will be filed on the decision.
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