ISRAEL Law and Practice Contributed by: Joseph Sprinzak and Rahel Rimon, J.SPRINZAK
right to sue for cargo damage to the holder of the bill of lading who has a proprietary interest in the goods, the Court found no reason to adopt this principle in Israeli law. In this case, the plaintiff’s contractual right to receive the cargo, coupled with their distinct eco - nomic interest in it, was deemed sufficient to confer standing to sue for damages caused to the cargo. In a tort action for negligence, the Court emphasised that the right to sue is not limited to the owner of the damaged property. A holder or any person with a proprietary interest in the property may also sue. The tort of negligence is not confined to individuals entitled to immediate possession of the property, and any party with a legitimate right of recourse may avail themselves of this remedy. The Court dismissed con - cerns that broadening this right would overwhelm the judicial system. An individual creates a cause of action that is not tortious and therefore not subject to the limitation in Section 22 of the Torts Ordinance; therefore, there is no impediment to the assignment of the right to sue. The Court explained that a significant reason for pro - hibiting the assignment of the right in torts is that it is sometimes a personal right, which cannot be reduced to a purely monetary right. However, no “personal” element exists in a claim for compensation for dam - age caused to machinery. Certain statutory provisions in Israeli law also specifi - cally allow for the assignment of claims, such as sub - rogation under Section 62 of the Insurance Contract Law, 1981. This provision enables an insurer to step into the shoes of the insured to recover damages from a third party. It should be noted that in Bellina Maritime SA Mon- rovia v Menora Insurance Company Ltd (2002), which interpreted Section III(6a) of the Hague-Visby Rules providing for a one-year time limit for claims by cargo owners against the carrier, the Supreme Court deter - mined that the carrier, as a direct party to the bill of lading, is not a “third party” in relation to the cargo owner. When the insurer steps into the shoes of the cargo owner through subrogation, the carrier remains a direct counterparty, not a third party. In addition, the insurer is bound by the same one-year time limitation
under Section III(6) that applies to the cargo owner. The Supreme Court held that the District Court had erroneously treated the insurer’s subrogation claim as falling under Section III(6a)’s exception for third-party indemnity claims. The Supreme Court overturned this, emphasising that subrogation does not alter the direct relationship between the insured and the carrier. It should be noted that, according to Article 8 of the Ordinance (and without derogating from Article I(b) and Article III Part 4 of the Hague-Visby Rules and any other provisions of law), the party to whom the cargo was consigned (the consignee) and the party to whom the bill of lading was duly endorsed (the endorsee) are considered, as applicable, as a party to the bill of lading, and as such are entitled to all the rights arising from the transaction pursuant to which the bill was made, and subject to the obligations referring to that transaction in exercising their aforementioned rights. Finally, the Israeli Supreme Court has also recently recognised the right of foreign insurers to institute subrogation proceedings in Israel. See also 10. Addi- tional Maritime or Shipping Issues . 4.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages The limitation of liability regime available to carriers is as set out in the Hague-Visby Rules, as amended by the 1979 Protocol and, where appropriate, the pro - visions of the Israeli Shipping (Limitation on a Ship- owner’s Liability) Law – 1965, as amended in 1987. See also 3.3 Convention on Limitation of Liability for Maritime Claims and 10.1 Other Jurisdiction-Specif- In accordance with the Hague-Visby Rules, Article III(5), the shipper is deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by them, and the shipper is required to indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to this indemnity in no way limits the latter’s responsibility and liability under the contract of carriage to any person other than the shipper. ic Shipping and Maritime Issues . 4.4 Misdeclaration of Cargo
287 CHAMBERS.COM
Powered by FlippingBook