Adv. Gill Nadel, Adv. Dave Zeitoun, Adv. Shirly Strezhevsky, Goldfarb Seligman, Israel
In the following article we will review the ruling of the Haifa Magistrate Court regarding F.A.Y. Com Ltd.’s request to delay the release of marine cargo which reached the Haifa port, and order the seizure of the cargo. In addition, F.A.Y. requested the cargo not be released until the matter was decided.
Case Facts & Arguments:
F.A.Y. claimed that it purchased and paid for the cargo from the supplier, and Bills of Lading were issued in its name. Following the arrival of the cargo in Haifa port, it was discovered that the bills name a different importer (S.M. Charcoal Hagalil Ltd. and Tala Company Ltd.).
S.M. and Tala argued that the cargo is theirs, as they purchased it from the supplier in various transactions which led to the issue of the Bill of Lading related to the cargo in question.
The shipping agent claims that the copy of the Bill of Lading submitted to the court by F.A.Y. was not issued by the agent, is not the original and appears to be a forgery. In addition, F.A.Y. does not appear in the original Bill of Lading as the recipient.
The shipping agent added that release of the cargo without presenting the original Bill of Lading may implicate the agent as a violator of a contractual agreement towards the wielder of the original Bill of Lading, acting contrary to the accepted commercial norms.
The Court’s Ruling:
Examining the alleged existence of the cause of action, the court ruled that in light of the contradictory factual versions presented in the request and the legal framework, it can be determined that F.A.Y. did not prove the existence of a cause of action.
The court mentioned the rulings from the Transclal and the Polska cases, in which a primary principle was set, ruling that release of a cargo transferred by sea to the designated port will occur only upon the presentation of the original Bill of Lading issued by the international forwarder, followed by the international forwarder handing the delivery order to the customs agent acting on behalf of the importer.
The court approved deviating from this rule in certain exceptional cases, but in this case the court ruled that there is no justification for such a deviation, as the risk that a third party will approach and demand to receive the cargo to which F.A.Y. claims the right to is not theoretical, but a viable possibility.
The court examined the balance of convenience between the parties, determining that release of the cargo to F.A.Y. without presenting an original Bill of Lading may expose the shipping agent to damage claims by third parties.
In light of the above, the court rejected the request. In this case, F.A.Y. failed to prove the existence of a cause of action against the shipping agent, S.M. and Tala. In addition, it failed to prove the damages it would incur will be greater than those of the other parties if its request is rejected. The court ruled that there should be no deviation in this case from the principle set in the Transclal and the Polska cases.
[TA 67434-06-18, F.A.Y. Com Ltd. V. ZIM Integrated Shipping Services Ltd. & Others, ruling given on 9.7.18. Presiding judge: Uri Goldkorn]