Lloyd's Maritime and Commercial Law Quarterly
WAREHOUSEMAN NOT ENTITLED TO BENEFIT FROM WARSAW CONVENTION LIMITATION IN ISRAEL
P. G. Naschitz*
Israel is a country heavily dependent on sea and air links with the outside world. This may be one of the reasons why transport law in Israel has had a fairly rapid development, and more and more cases related to overseas commerce and transport are brought to judicial decision. Not surprisingly, litigation related to air transport occupies an important place in this sphere. A substantial portion of cargo to and from Israel is transported by air, and although cargo handling is effected at a comparatively high standard, it would be a pious and wholly Unrealistic expectation that such activity should be carried out without ever causing damage, and, consequently, without litigation.
Israel has one international airport where all cargo handling and storage is carried out by a monopolist, Maman Cargo Terminals Ltd. Maman has for a long time sought to benefit from the exemption clauses of the Warsaw Convention1. In a recent case decided by the Tel Aviv District Court2, the Deputy President, Judge E. Winograd, ruled against this attempt.
The facts of the case taken from the judgment were as follows:
On 6/6/79 the Plaintiff No. 2, Dumax Ltd., delivered to the Defendant four wooden cartons containing approximately 120 Kgs. gold bars for refining, of a value of $509,255 for export to Germany by Swissair Airline Company.
Before the cargo left the warehouses of the Defendant, it disappeared. The Plaintiff No. 1, one of Lloyd’s Underwriters, paid to the Plaintiff No. 2, Dumax, the damages as it was obligated under the policy. In this claim the insurer, and in the alternative, Dumax, claims against Maman for indemnification of damages paid.
A cargo which is brought to Maman is in Maman’s physical possession until the moment of loading on the aircraft and delivery to the representative of the airline company carrying the cargo.
Counsel for Maman does not dispute this. The airline company receives the air waybill while the cargo is still in the possession of Maman, and it determines on which flight the cargo will be loaded. A cargo which has passed all security and customs procedures is transferred in the general warehouse to the special section of the particular airline (each airline has a section where their cargo is concentrated in order to aid in finding the cargo specified for loading on an aircraft at the time of loading). At the time that the cargo is loaded, the cargo list is checked and thereon it is signified if the cargo has actually been loaded.
In this instance, the subject cargo was signified on such list, but was crossed out and beside it was written “OFF SEC” which means the cargo was not loaded on the aircraft because of security. In the cargo manifest which was prepared by Swissair for flight 333 on which the subject cargo was to have been carried, the cargo was crossed out, and Swissair, who confirmed receipt of all the cargo, did not confirm receipt of the particular cargo in question.
In the hearing, Defendant’s counsel claimed that the claim of the insurers should be dismissed because they were under no obligation to pay, and paid as volunteers. They also argued that Dumax’s claim should be dismissed because it transferred its rights to the insurers at the time they received the insurance proceeds from them.
* LLB., LLM., Advocate, Parbull, Naschitz Brandes & Co., Tel Aviv.
1 Israel has adopted the Warsaw Convention, which has been codified in the form of the Air Transport Law, 1980 which re-enacted and repealed the Air Transport Law, 1962.
2 Civil Action 288/81, Phillip Gavel Wright and Others v. Maman Cargo Terminals Ltd.
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