The fowarder must reimburse the exporter for goods failing to reach their destination promptly
Gil Nadel, Adv.
The courts are not ready to automatically accept the forwarders' claim that when they act as shipping coordinators on behalf of the exporter towards the relevant parties (marine shippers, continental shippers, etc), then they are not responsible for damages and delays in arrival of the cargo, and that all complaints should be referred to whomever actually performed the shipping.
The recent decision of the Magistrate's Court of Tel Aviv reaffirmed this stance, and ruled that if coordination and organization of transportation are the task that the forwarder accepted, the minimum expected of it is to check the facts and to keep the owner of the cargo informed of its alternatives, including the various dangers. (תא 25812/04, decision given 9.8.07; for the exporter- Adv. Shilah, for the forwarder- Adv. Asher)
Our case involves an exporter who was going to participate in an international building exhibition taking place in Munich. The exporter contracted the international forwarder to handle shipping the equipment, décor, and the display items to the site of the exhibition, as well as collecting them at the conclusion of the exhibition and returning them to Israel. But the cargo did not reach its final destination at the set date, or even later, and the exporter was forced at the last minute to cancel its participation in the exhibition.
The exporter attributed negligence to the forwarder in organizing the transportation of the cargo and overseeing the route of its progress and location, and ascribed the fact that its participation in the exhibition was foiled by failure of the cargo to arrive promptly to the negligent handling of the forwarder.
The forwarder, on its part, claimed that it was not responsible for what happened, since the timetable was written by the exporter, who chose a marine shipper that made direct trips and afterwards also delayed handing over the shipment for a week, in addition to the time crisis created being exacerbated by an uncontrollable factor- severe weather conditions due to which Trieste Port was closed.
The court rejected the forwarder's stance according to which it did not intend to accept general responsibility for arrival of the goods at the destination, and did not commit to meet specific deadlines. The court ruled that this stance is contradicted by the very way in which the forwarder presented itself as one whose main business is international forwarding that deals with coordinating logistical services for foreign exhibitions.
The court explained that beyond preparation of documents connected to forwarding, the forwarder should have organized the marine and continental shipping from the port of origin to the destination, coordinated between the involved parties, and made sure that the shipping timetable for the cargo would be planned such that the cargo would reach the exhibition site in time. In this framework, the shipper should have “had its finger on the pulse” in a manner that would enable it to react in real time to logistical problems happening on the field, or when there was a chance that they would happen.
In our case, the court found that the forwarder did not check the route of the marine shipping, and despite the fact that it knew that the timetable of the specific marine shipper was not stable, it did not bring this fact to the attention of the exporter. The court also ruled that the forwarder approved the exporter's request to delay handing over the cargo without informing it of the danger involved in shortening the necessary safety period, nor did it check whether there were more safe alternatives in the new circumstances which were created. The court inferred that the forwarder was not aware that the shipping plan that was designed was not realistic from the very fact that the day of the beginning of the continental transportation was on a holiday, as well as the frequency of trains from Trieste to Munich being very low- only one a week.
The court explained that if coordination and organization of the transportation is the task that the forwarder accepted upon itself, the minimum expected of it is to check the facts and inform the exporter of the alternatives before it, included the various dangers.
The court summarized things like this:
"Who better than the defendant (=the forwarder) knew that this was a shipment of equipment for display in an exhibition, and that the exhibition was taking places on set dates, and for a period of only a few days? If the defendant thought that it was not obligated to meet a specific deadline as it claims know- it should have informed the plaintiff (=the exporter) of such explicitly. It can be assumed that in a case like this the plaintiff would have foregone its services.”
Accordingly, the court ruled that the international forwarder was responsible for the exporter's damages. At the same time, the court awarded the exporter only around a quarter of the damages that it requested (around 250,000 NIS out of a million), because the rest of the damage was not sufficiently proven
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