Gill Nadel, Adv.
In a seemingly surprising way, the Magistrate's Court of Haifa (Hon. Nitza Sharon) issued two opposite decisions on two requests on similar issues. Involved are requests for stay of proceedings before the court in Israel in light of the existence of a judgment clause in the marine bill of lading instructing that a foreign court has exclusive jurisdiction to rule on actions filed on the basis of the bill of lading.
One case involves an importer of frozen fish that filed action for damages to a cargo against, inter alia, the marine shipper (Yang Ming), the ship's agent (Conmart), the insurer (Migdal), and the Haifa Port Company, The marine shipper and its agent filed a request to summarily dismiss the suit and/or delay the proceedings, because of the existence of a judgment clause in the bill of lading that establishes that the court in London has exclusive jurisdiction in suits filed by virtue of the bill of lading (which constitutes the contract of shipping or serves as a proof thereof).
The court accepted the request of the marine shipper and its agent and ruled that the action filed against them, insofar as it relies of the bill of lading (as opposed to claims based on facts and events that are not covered by the bill of lading), should be delayed since the court in London has exclusive jurisdiction to rule on the matter. At the same time, the court clarified that the suit against the insurer, the port, and another side will not be stayed, since it is not at all based on the marine bill of lading and the judgment clause is irrelevant (תא 185278/06, the sides were represented by Advs. Friedman and Partners, Harris, Orli and Partners, Bloch, Groshkovitz)
The second case involves suits for damage to cargo filed by two importers against the marine shipper (Lloyd Triastino), the ship's agent (Rosenfeld Ships) and the insurer (Israel Land Development Company Ltd). Here, too, the marine shipper and its agent request a stay of proceeding, because of the existence of a judgment clause in the bill of lading that establishes that the court in Trieste, Italy has exclusive jurisdiction in suits filed by virtue of the bill of lading. In this case, the court rejected the request of the marine shipper and its agent and ruled that the action against all sides will be clarified in Israel, since, in the words of the court, the importer has good and special reasons not to honor the clause for foreign judgment. (תא 1290/07, 2277/07, sides represented by Advs. Friedman and Partners, Menachem, Orli and Partners).
How is Trieste different from London? What are the good and special reasons?
The first reason noted by the court, and apparently, the central one, is that delay of proceedings in Israel would lead to serious damage to the importer. Transferring the venue of discussion and re-opening proceedings in Trieste, Italy, would cause it that according to the conditions of the bill of lading, to which the Hague-Visby protocols apply, the actions of the importer would be past their date of limitations, since according to the Hague-Visby rules it is a substantive limitation that voids the right itself. The court noted that unlike another case judged in the past, the marine shipper and its agent did not say that they did not intend to argue the limitations claim should the case be brought to Italy.
The court also added that under the present circumstances it was clear that the primary defendant was the insurer, while the marine shipper and his agent were secondary, and therefore it was incorrect to split up the discussions so that parts would be heard in Trieste and the action would be simultaneously heard in Israel.
The court emphasized that no injustice or difficulty would be caused to the marine shipper and its agent in discussing the action in Israel, since the marine shipper anyway has representation in Israel.
Accordingly to the above comparison of the two decisions, it seems that the first reason (the serious damage to the importer because of the claim of limitation) is the one that created the difference between the two cases, since the two remaining arguments don't stand on their own. Splitting up the discussion in and of itself did not constitute a problem in delaying the proceedings in the first case, and the marine shipper in the first case also had representation in Israel.
On this subject of limitation that prevents honoring a clause of foreign judgment, we will note that in another case that was recently discussed by the Magistrate's Court of Tel Aviv (תא 54491/05 Grimaldi v. Harel Insurance Co.) and which was not mentioned in the Haifa decisions discussed above, the court delayed the proceedings because of a clause of foreign judgment and transferred them out of the country (Naples), in light of the marine shipper's declaration that it agrees not to raise the argument of limitation as long as the plaintiff files suit in the authorized court within six months. The court even emphasized in that case that if the court in Naples refuses to discuss the issue because of limitation (if it raises the claim on its own initiative), the plaintiff has the right to request that the stay of proceedings be voided and they be renewed in the court in Tel Aviv.
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