Gill Nadel, Adv.
In a recently issued decision the Magistrate's Court of Tel Aviv ruled that a land shipper will be obligated to compensate a customs agent for payments made by the customs agent to the importer's insurer. (תא 034967/01, decision given 30.7.07, representatives of the sides not noted.)
The case involves a shipment of medical equipment that included 19 cartons, holding among other things catheters. The cargo was imported from Holland, reached Israel, was received at the cargo terminal and released the next day. The land shipper that received the cargo verified that it received it complete. The cargo was placed in a third party's taxi, which traveled with the cargo to the importer's property, where the cargo was unloaded and given to the importer's warehouse employee The warehouse employee noticed that some of the cartons were wet and noted this on the land bill of lading.
The insurance company, that paid insurance compensation to the importer, sued, inter alia, the customs agents, and reached a compromise with it, finally, for the payment of a certain sum. The customs agent, for his part, filed a third party notice against the land shipper that acted as a secondary contractor of the customs agent and sued it for compensation for the sum that it paid the insurance company.
Regarding facts, the court found that the land shipper received the cargo whole and functional, without any dampness. But when the land shipper transferred the cargo to the importer, the cargo's packaging was partially damp. Similarly, the court found that on that day, heavy rains fell in the area of Ben Gurion airport as well as other locations between the airport and the industrial area of Herzelliah. But these findings are not enough to solve the mystery, since the court noted that nobody knows how to explain how some of the cartons (and the cargo within) became damp during the journey from the airport to the insured's property, and under the circumstances it is the job of the court to decide on whom the responsibility for the damages rests.
To make this decision, the court made use of the instructions of paragraph 41 of the Tort Code that rules that when there exist three conditions, the burden of proof is transferred from the plaintiff to the defendant: The first condition- lack of knowledge (or ability to know) on the part of the plaintiff regarding the circumstances that caused the injurious incident; the second condition- that the damage was caused by an object over which the defendant had complete control; the third condition- that there is a probabilistic preference that there was negligence by the defendant. Under the circumstances of the our case, the court ruled that the three conditions are met, since the customs agent did not know how the cartons became damp, and the control over the cargo was in the hands of the land shipper throughout the land shipping, and that in these circumstances, the chances that the cartons became wet because the negligence of the land shipper is greater than the chances that the dampness was caused by a factor that does not involve negligence on its part.
Thus the court ruled that the customs agent proved the fulfillment of the conditions of paragraph 41 and the burden of proof moved to the land shipper regarding lack of negligence on its part on everything related to the dampening of the cartons. The court ruled that this burden was not met by the land shipper, which did not prove a reasonable explanation that would show that the dampness did not occur while the cargo was in its possession or that no negligence can be attached to it regarding the dampening of the cartons.
The court ruled that the land shipper carries responsibility also by virtue of the contract that exists between it and the customs agent, as the customs agent ordered the land shipper's services to perform the shipping. By law, this is a contractor agreement, under which the liability of the contractor (the land shipper in our case) is full and complete liability for any loss or damage to the object, unless these were caused “due to circumstances that it should not have foreseen and the results of which it could not prevent.” In the facts of the case, the court found that the land shipper did not meet the burden of proof placed upon it and did not show that the circumstances of a higher power were fulfilled as is required for it to be freed of responsibility for damages caused to the cargo.
Accordingly, the land shipper was obligated to reimburse the customs agent for the moneys paid by the customs agent to the importer's insurer.
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