Gill Nadel, Adv.
The local court in Jerusalem recently rejected an importer’s action against Ashdod Port for compensation for a shipping container that “disappeared”.
According to the importer, a shipping container that contained cigarettes reached Ashdod Port and was unloaded from the ship, but while sitting in the port area, it disappeared, and was apparently stolen or stealthily removed from the port or else the contents were stolen. Accordingly, the importer filed suit against Ashdod Port for compensation for its damages. According to what arises from the decision, the port defended itself with two principle defense claims: First, that the importer did not succeed in proving that the shipment was in fact stolen/broken into in the port; secondly, that the importer did not succeed in proving damages.
These defense claims were accepted by the court and from now on, we will discuss the first defense claim.
The importer relied in its suit, among others, on the following documents: Notice of the goods’ arrival, bill of lading, gate pass, and certificate accompanying the container. Regarding these documents, the court ruled that they are not sufficient to prove that the container was in fact transferred to the port. We will note on this issue the court’s opinion on the gate pass, where it ruled that “the pass is issued independently of the physical transfer of the container from the ship to the port, such that it is not sufficient to attest that the container was in fact unloaded from the ship and transferred to the responsibility of the respondent.” Similarly, regarding the certificate accompanying the container, the court ruled that the part of the certificate certifying receipt of the shipment was not signed, such that the certificate does not attest to the fact that the container was received.
The court also dealt with the fact that the importer was unable to bring, without any suitable explanation, testimony or documentation from the stock company, whose job it is to count the containers unloaded from the ship and list their particulars, and similarly did not call anyone with any position on the ship to testify, who could have testified to the handling of the shipment, or any of the port’s employees who were involved with unloading the ship and placing the shipment in the place designated for such in the port.
It is important to note that on the back of the gate pass appear the words “Checking by security on…”, but the importer did not call the signatory to testify, and did not shed light on the circumstances of the inspection, in a way, according to the court’s ruling, that made it impossible to infer anything to the benefit of the importer from the mere fact that there was an inspection.
The rules of evidence in courts are inflexible and demanding, and demand that he on whom the burden of proof rests must meet these rules in order to win his case. The is not the first time that a shipment owner’s suit has been rejected for failing to bring suitable proof.
את 011893/99, Local Court of Jerusalem, decision given 26.4.2007
עדכוני מכס ורגולציה
