However, there are no additional findings on these samples, there are no laboratory reports that examined such samples, and it is not clear who sampled, where and what exactly was found. Expert Patel emphasizes that "I cannot comment on these observations of the load port samples by the surveyors and simply will have to take same at face value" (Section 4.11 of the review).
- Moreover, the claim that traces of particles were found prior to loading is contradicted by the other documents also noted by the expert Patel. This is how Caleb Barrett's lab explicitly states that the charge of oils has been found Bright and clear. The captain also notes in his affidavit, paragraph 14, that the samples were found Bright and clear. There is no other evidence to suggest that any particles were found in the oils prior to charging.
- Expert Patel tries to explain the differences by saying that these are particles that sink, so they may not have been found in samples taken before loading. This is only a hypothesis, which is ostensibly contradicted by the fact that at the time of discharge the particles were clearly observed.
- The aforesaid is sufficient to determine that the defendants did not succeed in contradicting the prima facie evidence learned from the issuance of the clean bills of lading, according to which The cargo of oil was delivered to the ship in good working order and without any particles.
- Furthermore, we have seen that prior to the loading, the cargo was tested by the Caleb Brett laboratory. The tests found the cargo to be clear and clean without any particles (see the laboratory documents on p. 331 - 332 to the appendices to the plaintiff's affidavit). Also in an email message sent by the laboratory on June 3, 2021 (Appendix XIV In the opinion of the expert), it is noted that all the samples taken from the cargo of oils before loading were found to be clean and clear. This announcement was also accompanied by photographs reinforcing the assertion that the oil was clean and clear and that no particles were observed, as observed at the time of unloading. This is also evident from the correspondence of the appraiser on behalf of the defendants from the firm of Gellerem Appraisers, which was attached to the opinion of the expert Patel (Appendix XV for his opinion).
- In other words, even if the laboratory tests carried out in Singapore found any signs of foreign particles in the oil prior to the loading, as the defendants claim, these are not particles that were observed by the Caleb Barrett laboratory prior to the loading, and in any case these are not the same particles as those found in the discharge, particles that were observed without any difficulty by the appraisers. And docu, the sample to which Patel is referring to which a particle is found, refers to a sample from the charge conduction tube. According to his opinion, this is a dark particle that was diagnosed only under a microscope (for example, paragraph 6.4.7 of the opinion). These are not the same particles as those observed without a microscope in discharge. In any case, Patel's estimates contradict Caleb Barrett's test results and are not sufficient to contradict the conclusion that the oils were loaded clean and clear. It should also be recalled that the expert Patel relied on tests in a laboratory in Singapore that were carried out two years after the incident.
- From all of the above, from the results of the laboratory test before loading, and the "clean" cargo regimes, the conclusion is required that the lubricants were loaded without contamination with any particles.
- At the time of unloading the cargo, foreign particles were found in them, and the question is whether it can be assumed that they originated in the ship's tanks. As we have seen, after filtering the oils, the filters and the material that accumulated in them were transferred to the Dixie Laboratory in the United States for testing. The transfer of the samples to the Dixie laboratory was done with the consent of the parties, although according to the defendants, there was no agreement that the test results would be binding on the parties.
- In the Dixie laboratory, substances were found to be a mixture of salt and rust. In addition, particles suitable for wax were also found, which in the plaintiff's opinion indicate that this is a remnant of the previous cargo that was transported on the ship.
- The expert on behalf of the defendants does not deny the findings of the tests at the Dixie laboratory, but believes that the findings do not indicate that the particles originated on the ship. On the contrary, he argues that the presence of the substances in the cargo strengthens his assumption that the source of the particles is from the storage tanks at the port of origin or from the oil transmission pipelines at the port of shipment (paragraphs 5.4). - 5.10 in his opinion).
- The defendants emphasize that the plaintiff was satisfied with submitting the laboratory documents together with Max Grossi's letter dated September 2, 2021 (p. 84 of the appendices to the affidavit of K. Zatlawi). In the absence of an expert's opinion, it is argued, it is not possible to determine that the source of the particles is on the ship.
- It seems to me that in this dispute between the parties, the plaintiff's position should be preferred. Since we found that the oil was loaded when it was clean and clear, but discharged when it was contaminated with particles, it is clear that the burden of contradicting the assumption that the source of the particles was on the ship rests with the defendants, in the sense that "the thing speaks for it" (see Article 41 To the Ordinance The Torts [New Version]; Civil Appeal 8151/98 Sternberg v. Chechik, IsrSC 56(1) 539 (2001); Civil Appeal 813/06 Jones v. Hula Valley Regional School District (7/2/2008)).
- Furthermore, the particles found in the post-screening test indicate that there is a reasonable possibility that the particles originated on the ship. Rust particles, salt particles and wax particles were found, which corresponded to the cargo previously transported on the ship (see paragraph 15 of the opinion of the appraiser M. Tal, Appendix 2 to the plaintiff's affidavits). In Max Grossi's letter (which was attached on page 84 to the plaintiff's affidavits) it was clarified that the source of the wax particles was apparently in a previous cargo that had been transported, a cargo of the type HCB (Hydrocracker Bottoms). The defendants are of the opinion that this letter is not sufficient evidence, since it is not an expert opinion. However, we should remember that the parties have waived the examinations of the witnesses, and therefore the letter should not be ignored. In any event, the defendants do not deny that the previous cargo transported on the ship was a wax cargo as claimed.
- The defendants rely on the opinion of expert Patel, who noted that the source of the wax particles found may be in the cargo of oils itself (paragraph 5.31 of his opinion). It was further argued that no comparison was made between the particles found and the previous charge in order to verify that they were particles originating from the same charge (Patel Opinion, paragraph 5.24).
- As noted above, it seems that the burden of contradicting the assumption that the source of the particles found in the discharge is on the ship, rests on the shoulders of the defendants. Therefore, it is not enough to raise claims regarding the source of the wax particles. The defendants had the best tools to make a comparison between the particles found and the cargo HCB The previous one was transported by ship, but they did not make the comparison.
- Moreover, there is no dispute that the source of rust particles and salts may have been on the ship. The expert on behalf of the defendants is of the opinion that this is not the case, since he was convinced that the ship's tanks were cleaned as required prior to loading and therefore it is not possible that the containers are the source of the polluting particles.
- The expert Patel relies on his assumption regarding the cleaning of the containers on documents presented to him, including documents of the Caleb Brett Lab. Since the question of preparing the containers for the transportation of the cargo is also relevant to the claim of exemption from liability in accordance with the section IV(1) To the Hague-Visby Rules, I will turn to examine the argument now.
- As mentioned, section IV(1) The above is stated:
Neither the Carrier nor the Vessel shall be liable for loss or damage caused by the fact that the Vessel was unfit to sail at sea, unless this was caused by the Carrier's failure to do all necessary [...] in accordance with the provisions of Article 1 of Article III. Wherever loss or damage is caused because the vessel was not fit to sail at sea, it shall be the duty of the carrier or of any other person claiming exemption under this section to produce evidence that they have used all sufficient agility.