Gill Nadel, Adv.
The decision of the Magistrate's Court of Tel Aviv, that was given on 12.8.07 in תא 16115/05 (Neolog v. Shachaf Materials Upgrade, for Neolog- Advocate Stemeri, for Shachaf- Advocate Sodkovitz), provides a clear and panoramic perspective on the way in which the court sees the commercial relations between the internal forwarder/customs agent and the importer.
The case involves a financial action filed by an international forwarder/customs agent against an importer to receive moneys owed by the importer. According to the forwarder, the importer's debts relate to four issues:
The first- a debt for interest on credits that the forwarder supplied to the importer. The second- charges for delays on a shipping container that the forwarder paid to a marine carrier on the importer's shipments. The third- shipping charges that were not paid in a specific transaction involving the import of a shredder. And the fourth- miscellaneous debts.
The court accepted the forwarder's suit regarding the delay of the container, while rejecting the suit on all the other points.
Delay of Container:
On this issue, the court accepted, on one hand, the claim of the importer that before the forwarder paid the delays to the marine shipper, it had a duty to inform the importer of the required payments and receive agreement ahead of time to carry out each payment. Since the forwarder did not act in this manner, and infringed upon the importer's right to negotiate with the ship company, it should be seen as acting purely voluntarily.
At the same time, the court ruled that the importer must pay these payments by virtue of the law against unjust enrichment or by virtue of the rules of good faith.
The court noted that the importer did not deny that the ship company had the right to request money for holding the container, both fundamentally and in the present case. While the importer argued as though the forwarder had infringed about its right to negotiate with the ship company and request a discount on the requested sums, the court ruled on this issue that the importer did not prove that the payment that the forwarder made was unnecessary, nor did it prove that it turned to the ship company with a request for a refund and was turned down, nor did it prove that it received credits from other company in similar situations. In short, the payment for delay, at the bottom line, served the importer and the importer did not prove that it could have avoided its execution or minimized it.
Interest Charges:
On the point, the court accepted the stance of the importer that it should not be liable for interest payments on the credits that it received. On the evidential plane, the court ruled that contradictory versions existed regarding the question of whether it was agreed that the importer would pay interest on the credit or not, and the burden of proof on this point rests on the plaintiff- the forwarder, and this burden was not met. The court found that there was no written agreement between the forwarder and the importer regarding interest payments, and also found that the account-closing letter that the international forwarder issued did not mention the subject of interest.
It was also clear to the court that the importer had never paid, prior to the events discussed in this decision, invoices for interest, although the forwarder sent such invoices. The court inferred from this that if the forwarder was already aware from previous transactions that the importer did not pay the requested interest charges, and nonetheless chose to work with them, this behavior can be seen as relinquishing these charges.
The forwarder attempted to overcome the above obstacles by claiming that there exists an accepted practice regarding payment for credits given by customs representation companies, that can be seen as formulating an agreement on this point. However, the court ruled that such a practice was not proven before it, and that one cannot simply create a parallel between a forwarder/customs agent and a bank, as a bank is a financial organization dealt with in special legislation, while the forwarder/customs agent is like any supplier who provides its clients with a credit, when it buys on credit or by current plus payment conditions.
Shipping Charges on a Specific Transaction:
On this point, the court rejected the forwarder's claim that 1000 dollars should be added to the agreed shipping sum. The court ruled that the forwarder should have referred the request for additional payment to the importer instead of payment it himself and then demanding it from the importer. The court noted that the time gap between the transaction's execution and the the request for additional payment (around 10 months) necessitated transfer of the request for direct handling by the importer, and the forwarder did not need to volunteer to make payments at the expense of the importer.
Other Debts:
On this point, the forwarder claimed that there were additional open invoices that were not paid. The court rejected the forwarder's claim, noting that it was impossible to tell from the importer's documents which were the claimed open invoices, what was the sum of the debt as of the date of the conclusion of contractual relations, what it was composed of, etc. The court noted that the witness for the forwarder, under examination, had a hard time supplying explanation of what the debt was composed of and sufficed himself with estimates during his testimony. Under the circumstances, when the burden of proof rests on the forwarder, including that of the sum of the damage, and this burden was not met- the court rejected the forwarder's stance.
Closing Notes:
Many words have been said and written regarding the burden of proof in courts and the need for written documentation. This decision- regarding interest, shipping charges, and open invoices- illustrates the importance of these things and provides a sketch of the court.
Unlike this is the court's attitude towards the delay charges, as the court attempted to reach a just result, even at the expense of formal certainty. However, on the formal plane, there was no clear arrangement regarding payment of delay charges and the forwarder paid the delay charges automatically, while the delay charges served the importer, so that the importer could not shake off its obligation to pay for these delays.
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