(a) the principal marks necessary for the identification of the goods as provided in writing by the consignor of the goods prior to the commencement of the loading of such goods, provided that such marks are stamped or clearly marked on the goods themselves, when they are not covered, or on the boxes or covers in which the goods are placed, so that they can be sufficiently distinguished by the marks by the end of the journey;
(b) the number of packages or units or the quantity or weight, as applicable, as provided in writing by the sender;
(c) The order and condition of the goods;
Provided that no carrier, captain or agent of a carrier shall be obliged to provide or specify on the bill of lading any mark, number, quantity or weight, when he has sufficient grounds to suspect that he does not indicate exactly the goods actually received, or when he does not have sufficient means to verify their accuracy.
A bill of lading issued by a sea carrier serves as prima facie proof that the carrier received the goods as specified in the bill (section III (4) to the Hague-Visby Rules).
- The Sea Carrier A person may have reservations in the bill of lading about details that he does not know (Civil Appeal 603/83 above, pp. 373-374). This reservation can be made in various ways, such as refraining from mentioning details that are not known to the carrier, or by stating in the bill of lading itself, or in a separate document, an explicit reservation regarding any detail. However, the maritime carrier cannot rely on a general and sweeping reservation that exempts it from any liability (ibid., at paragraph 15, and Civil Appeal Authority 7779/09 HDI Hannover International v. Oil Refineries in a Tax Appeal (3/6/2010)).
The express reservation of the maritime carrier will allow him to "[...] To be released from the binding evidentiary power of the bill of lading, insofar as the aforementioned descriptive details are concerned" (Civil Appeal 630/83 Ibid., p. 376.
- There is no dispute that there are many situations in which the sea carrier does not and cannot have sufficient information about all the details of the cargo. For example, when the cargo is packed in sealed packages, or when it comes to cargo that requires special tests, such as laboratory tests, special weighing, a special counting operation or one that requires an unreasonable amount of time, and more. In such situations, the maritime carrier must refrain from issuing a clean bill of lading and specify its reservation (see Civil Appeal 603/83 The above; Civil Case (Haifa) 14294/03 Judgment 1991 in Tax Appeal v. Zim Israeli Shipping Company in Tax Appeal (27/7/2005); Civil Case 17805/98 Efficiency Products Market in Tax Appeal v. T. NIYAZ BARTIK (6/6/2004)).
- In the present case, the bills of lading did not include any reservations. The only reservation appears in the letter of reservation dated April 24, 2021, but this reservation relates only to Lack of a certificate Regarding the quality of the cargo. There is no reservation about the external condition of the cargo.
- The damage caused to the cargo is the presence of particles in the oil. These particles were observed when the cargo was unloaded, without the need for laboratory tests. This is not a defect in the "quality" of the oil, but rather the presence of a foreign factor that is visible inside the oil. Therefore, the captain's reservation regarding the "quality" of the oils is irrelevant and does not constitute a reservation about the claim that the cargo was delivered properly when the oils are clear and clean.
- also the expression in the bill of lading according to which The charge was observed only ostensibly normal, which does not constitute a sufficient reservation, since if particles were observed in the payload, the carrier should have stated this explicitly.
In the absence of an explicit reservation, it can be determined that the bills of lading prima facie testify that the cargo of oil was delivered to the ship in good working order and without any particles.
- This is not enough, since the clean bill of lading is only prima facie evidence of the condition of the cargo, and the transporter is entitled to bring evidence to the contrary. The defendant seeks to contradict the evidence regarding the integrity of the lubricant shipment Through the opinion of the expert in the field of chemistry Vajin Patel.
Expert Patel, who is based in Singapore, notes in his opinion of November 24, 2023, that he did not examine the samples himself, and that the opinion relies only on the documents and test results that were submitted to him for review (section 4.11). Expert Patel notes in his opinion that laboratory tests prior to loading confirmed that the cargo was visually clean (paragraph 4.9 - 4.10). He also noted that the documents brought to his attention indicate that the ship's crew took samples from the transport pipelines used to load the cargo from the shore. These tests, which were not brought to the expert's review, were given to the appraisers on behalf of the defendants, who noted that the ship's crew found particles similar to those found in the unloading (paragraph 4.8, and paragraph 8 of the opinion of H. Seidenberg of Nestor).