The conclusion from the foregoing is that the defendants cannot enjoy an exemption from liability.
The Damage
- The plaintiff claims that due to the contamination of the oils, she was forced to sell the cargo at a price lower than the market price, and even at a price lower than the purchase price. According to the plaintiff, the average price of a liter of oil, before the incident, was about ILS 2.9 (Appendix 12 to the plaintiff's affidavit). Due to the presence of particles in the oil, it was forced to sell the cargo of contaminated oil that was dismantled before filtration, 120,000 liters, at a price of ILS 0.085 per liter. It sold the cargo of filtered oil for a total of ILS 2,435 per liter, for a total of ILS 14,882,608. Since it purchased the oils at a price of ILS 16,164,625, together with import expenses in the sum of ILS 909,540, the total cost of the lubricants cargo was ILS 17,074,165.
Accordingly, the plaintiff claims that as a result of the oil pollution, she suffered a loss of ILS 2,191,357 (purchase cost of ILS 17,074,165 less for a sale in the sum of ILS 14,882,608).
- The declarant, K. Zatlawi, stated that although the oil had been filtered, the plaintiff's customers, who wished to purchase premium quality oil, were concerned that there might be remnants of particles left in the oil, and therefore the plaintiff was forced to sell the oil at a low price (paragraphs 27 and 28 of the witness's affidavit).
- The defendants, for their part, claim that the alleged damages have not been proven. It was argued that the plaintiff did not prove the sale value of the oils and did not prove that the sale price was affected in any way by the presence of particles in the oil. The defendants emphasize that after the oil was filtered, there was no impediment to selling it at the regular market price. In any event, it is claimed, it has not been proven that the oils are intended to be sold as "premium" oils for the pharmaceutical industry or a similar industry.
- As I will detail, the plaintiff has not been able to prove all the damages caused to her. As is well known, the plaintiff who petitions to charge a defendant to compensate him has the burden of proving the damage caused to him as a result of the tortfeasor's wrongful acts, the extent of it and the amount of compensation to which he is entitled (see and compare Civil Appeal 355/80 Anisimov in Tax Appeal v. Batsheva Tirat Hotel Ltd., IsrSC 35(2) 800 (1981); Civil Appeal 2080/09 Sharbat Brothers Building Company in Tax Appeal v. State of Israel - Ministry of Construction and Housing and Israel Lands Administration (23/6/2013); Civil Appeal 646/85 Barnea Works in Tax Appeal v. Danya Development Company Ltd., P.D. 42(2) 793 (1988); Civil Appeal 7905/98 Aerocon C.C. v. Hawke Aviation Ltd., IsrSC 55(4) 387 (2001)).
- The plaintiff claims that due to the contamination discovered in the oil, she was forced to sell it at a reduced price, but did not bring sufficient evidence regarding the sale of the filtered oil cargo. The plaintiff referred to the invoices attesting to the sale prices of premium quality base oils in transactions executed by it in parallel periods (Appendix 1.12 to the affidavit of K. Zatlawi). The price offered, it was claimed, was ILS 2.9 per liter, although it can be seen that this is an average price after discounts. It can also be seen that in the invoices regarding the comparison transactions, i.e. the sale of another oil, there is no mention of the "premium" quality as claimed, and on some of the invoices there are additional comments except for the statement that it is a base oil. Some of the oils in the comparison transactions will be imported in containers and not in ship containers like the oils that are the subject of the lawsuit.
- In the invoices for the sale of the filtered oil, there is no mention that the oil is of poor quality, or that it is a defective oil (Appendix 1.11 to Zatlawi's affidavit). Some of the invoices have a base oil and some of them have a "Jerusalem base oil". I have no explanation of what the difference is.
- No evidence was presented that the price of the oil sold was affected by the discovery of the particles. No letter from any of the customers was presented, no agreements were presented with the customers indicating that the price was affected, no price quotes were presented, etc. Specifically, the plaintiff must also prove that there is a causal connection between the sale price and the presence of the particles in the oil.
It should be remembered that according to the opinion, the oil sold after filtration was clear and free of particles. Apparently, there was no reason why it should not be sold at a price suitable for this type of oil. The claim that customers feared that there were remnants of particles left is not a trace of evidence, and no affidavit of the customer or even any letter attesting to this was attached.
- Changes in oil prices can be due to various reasons that are unrelated to the fact that it is an oil that has been contaminated with particles in the past and has been filtered. Oil prices are the result of negotiations, they are influenced by the price of oils at competitors, delivery dates, etc. The plaintiff refrained from presenting evidence on all of this.
- The opinion of the appraiser M. Tal, on which the plaintiff relies is of no use, since the appraiser suffices with making a calculation of the losses, according to the plaintiff's claiMs. The appraiser does not make a comparison with market prices, does not address the question of the causal relationship between the pollution and the price, and it is not possible to conclude from it that the price was affected by the pollution.
- It should also be noted that the claim that the plaintiff sought to purchase only premium quality oil is also not supported by the evidence. The invoice from the supplier from Canada does not make any comment regarding the premium quality of the oil, but only states that it is a base oil, of two types (P250 andSCP40). It cannot be inferred from this that the oil sold after filtration was of different quality.
- The conclusion is that it has not been proven that the cargo of filtered oil was sold at a price lower than its value due to the contamination discovered at the time of unloading. This is different when it comes to the contaminated oil cargo that is discharged into the shore tanker before filtering. This oil was sold at a particularly low price, ILS 0.085 per liter, and on the invoice it was explicitly stated that it was a defective oil (Appendix 1.8 to the affidavit of K. Zatlawi).
- Therefore, it appears that only the plaintiff's claims for a loss in the sale of the contaminated oil cargo should be accepted. The plaintiff sold the contaminated oil, 120,000 liters, at a total price of ILS 10,200 instead of ILS 325,200 (2.71 x 120,000), i.e., she suffered a loss of ILS 315,000 (it should be noted that although the plaintiff claimed that the price of the oil was supposed to be ILS 2.9 per liter, she made her calculations according to a price of ILS 2.71, which reflects the purchase price, paragraph 44 of the summaries).
Note
- As detailed above, it turns out that the plaintiff received insurance benefits in the amount of $115,000 from the cargo insurer (notice dated 2/9/2024). According to what was stated in the notice, the insurance benefits were paid as part of a settlement arrangement. The notice does not indicate which part of the cargo was paid insurance benefits, whether and what rights of claim for compensation were transferred to the insurer. Therefore, I do not find room to deduct the amount of insurance benefits from the compensation to which the defendant is obligated due to the damage to the contaminated cargo.
Conclusion
- In light of all of the above, I order the defendants to pay the plaintiff the sum of ILS 315,000. The amount will be paid within 30 days from today and will bear linkage and interest differentials as required by law from the date of filing the original claim (June 7, 2021) until the actual full payment.
Since the claim was accepted only in part, there is no order for costs.