Civil Appeal Authority 55481-09-24 Maersk A/S v. Gold Bond Group Ltd.

Civil Appeal Authority 55481-09-24

Instruction Section III(6) to the Hague Regulations on bills of lading, adopted in the addendum toTransportation of Goods by Sea Ordinance (Hereinafter respectively: The Hague Regulations andThe Command), states that a claim filed against a sea carrier for damage caused to the goods transported by it will become statute of limitations after one year from the date of delivery of the goods.  Does this provision apply to a claim filed against the sea carrier by a person who is not a party to the bill of lading? This is the question that is at the center of the discussion before us.

            We are concerned with an application for leave to appeal against the decision of the Beer Sheva District Court (Judge A.  Cohen) from June 14, 2024 in a civil case 52513-01-23, [Nevo] In Gedera, the Applicant's request to dismiss in limine a notice to a third party filed against it by Respondent 1 was rejected due to the statute of limitations.
Factual Background

1. Respondent No. 2, Orda Print Industries Ltd., which is engaged in commercial printing, inter alia, purchased from Respondent No.  3, Getter Group Ltd., a printing machine manufactured by Respondent No.  4, the Japanese Komori Corporation (hereinafter: Orda, Getter, Komori and the machine).  The Applicant is the Applicant, Marsek A/S (hereinafter: Maersek).  Getter hired the services of Respondent 1, the Gold Bond Group Ltd., which is engaged in transportation, storage and logistics (hereinafter: Gold Bond), to unload the containers in which the parts of the machine were stored upon arrival at the port in Haifa, and to transport them to the Orda site in Kiryat Gat.  In the bill of lading of the sea freight issued by Maersk, Komori appears as a shipper; Getter as a Consignee; and Maersk as a carrier.
   However, the machine's path to its destination was not smooth.  On January 22, 2023, Orda filed a lawsuit against Gold Bond, in which it claimed that due to its negligence in unloading the containers at the Haifa Port on January 12, 2021, one of the containers fell and as a result, "an essential component of the machine that was in the container that fell was completely damaged and had to be remanufactured." It was claimed that this led to a delay of about 10 months in the installation of the machine, which in turn caused heavy damages to Orda in the amount of approximately ILS 37 million - inter alia due to loss of profits and various operating costs - damages for which Gold Bond is allegedly responsible.
   Gold Bond denied the allegations against it in its statement of defense.  At first, she raised various preliminary arguments; Among other things, she claimed that the claim was statute of limitations in accordance with the provision of section III(6) of the Hague Regulations; and that there was no rivalry between her and Orda, which did not engage with her and did not order any service from her - but rather from Getter, which is the address for her claiMs. On the merits of the matter, it claimed that the alleged fall was not the responsibility of Gold Bond, but rather the responsibility of Komori, Getter or any of the transport parties.  Subsequently, Gold Bond filed a notice to a third party against Komori, Getter and Maersk, for indemnification, participation or compensation for any amount awarded against it.  In the framework of the notice against Maersk, which is relevant to our case, Gold Bond claimed, in essence, that Maersk bears responsibility for the alleged damage in light of its negligence in loading or transporting the printing press.
   In her statement of defense, Maersk argued, inter alia, that the notice filed against her was statute of limitations, and on January 30, 2024, she filed a motion to dismiss her in limine.  In its application, it argued that as the maritime carrier according to the bill of lading that it attached to its application, any claim against it in connection with the transportation of the machine became substantially statute of limitations one year after the date of its delivery, in accordance with section III(6) of the Hague Regulations; where the main claim was filed about two years after the date of unloading the machine, and the notice to a third party was filed about three years after that date.  On the basis of the aforesaid, Maersk argued that in the absence of its responsibility towards the main plaintiff, Orda - there is no basis for the indemnity and participation claim that was filed against her.
2. In its response to the request, Gold Bond argued, in summary, that its notice is not based on the bill of lading, but on a cause of action primarily - and therefore its right to sue cannot be limited by virtue of the bill. It further argues that since it is not a party to the bill of lading, the limitation provision set out in section III(6) of the Hague Regulations does not apply in the context of the relationship between it and Maersk.  Alternatively, it argued that even if the Hague Regulations apply in the circumstances of the case, the exception set out in section III(6a) of the Regulations exists in this case , according to which "a claim for indemnification against a third party may be filed even after the end of the year stated in paragraph 6, if it is filed within the period of time that it is permitted to be filed under the applicable law in the court hearing it [...]"The issue of limitation must therefore be examined in accordance with the provisions of the Statute of Limitations, 5718-1958 (hereinafter: the Statute of Limitations).

Maersk submitted a response to the response, in which it emphasized that the notice against it constitutes a claim for joint participation between wrongdoers, and as such it is based on a claim of its responsibility for the damage caused to Orda, and not to Gold Bond - by virtue of its being the maritime carrier according to the bill of lading.  In these circumstances, according to her, there is no significance to the fact that Gold Bond is not a party to the note.  It also argued, inter alia, that the exception in section III(6a) of the Hague Regulations does not apply, since the exception concerns indemnification claims filed by a sea carrier, while Gold Bond is not the maritime carrier.
In its decision of June 14, 2024 - which is the focus of the application before me - the District Court rejected Maersk's request to dismiss the notice to a third party that was filed against it in limine.  The District Court ruled that the case law applied the abbreviated statute of limitations provision in section III(6) of the Hague Regulations, only to claims filed against the maritime carrier by a direct party to the bill of lading or a person who stepped into its shoes; and since Gold Bond is not one of these, this provision does not apply in the context of its relationship with Maersk.  It was further held, beyond necessity, that even the exception set out in section III(6a) of the Hague Regulations does not apply in the circumstances of the case, since this exception relates to an indemnity claim filed against a "third party"; whereas Maersk is not a third party, but a direct party to the bill of lading.
Summary of the parties' arguments