This conclusion is supported by the definition of the Hague Regulations In Section 1 To the Ordinance, 20"The Hague Regulations Regarding bills of lading" (Highlights here, and below, Added); which are established in the International Covenant"Consolidation of Certain Regulations Regarding Bills of Lading" (Definition of the "1924 Convention") In Section 1 to the Ordinance); In the preamble section of the Ordinance it indicates that it was intended to "To determine the responsibilities and duties and rights and immunities of carriers According to bills of lading"; and in section 2, entitled "Applicability of the Regulations", which states that "Subject to other provisions of the Ordinance, The regulations will apply to each bill of lading Regarding the transportation of goods by sea" (See: Celia Wasserstein Fassberg A sentence between-National Private Vol. 2 1462 (2013)). An examination of the language of the Ordinance throughout its length, including the Addendum thereto, shows that the bill of lading is the bedrock on which the Ordinance is based, and that its purpose is to regulate the relationship between the parties and the bill of lading (see, for example, Section 8(a) to the Ordinance dealing with the identity of the parties to the bill of lading; Sections III(4-3), andVI(5)(A, and) to the regulations dealing with the details to be included in the bill of lading, and their significance with regard to the duties and rights of the parties; and Section II to the regulations that apply to the maritime carrier all the duties and rights in the Ordinance, in all matters relating to its handling of goods made "According to any contract for the transportation of goods by sea").
Moreover. The parties to the bill of lading, as opposed to a foreign third party, are given the option of stipulating in the bill of lading the provisions of the Ordinance, so that they will be subject to different duties and protections than those enumerated therein. Thus, subject to certain restrictions, the maritime carrier may "to waive his rights, in whole or in part, or to increase his liability in accordance with the provisions included in one of these sections, provided that the waiver or increase in the degree of liability shall be contingent on the bill of lading that can be sent." (Section V for the regulations; Yes, they saw, Section IV(5)(g) to the Hague Regulations). Where a third party, a stranger to the bill of lading, is not given a similar possibility of stipulating the provisions of the Ordinance - it is unfair to obligate him with provisions that limit his right to sue.
- The conclusion that the abbreviated statute of limitations does not apply to a foreign party to the bill of lading is also consistent with the rules customary in comparative law overseas. In this context, it has been held more than once that when the court comes to determine the proper interpretation of the Hague-Visby Rules - similar to other rules that originate in international treaties and documents whose purpose is to bring about the unification of the law between different countries - it must give weight to the manner in which they have been interpreted in foreign case law, while striving for harmony between the laws (Polska, at p. 227; FEYHA, at para. 12; Bellina, at p. 795).
- Indeed, a similar case was brought before the English Court of Appeal, in the case of the ship Captain Gregos (Cia Portorafti Commerciale SA v. Ultramar Panama Inc., [1990] 3 All ER 967 (hereinafter: the Captain Gregos case)) - to which both Maersk and Gold Bond referred in their pleadings. In that case, as in our case, a claim was filed against a sea carrier by a foreign party to the bill of lading, after the limitation period in section III(6) of the Hague-Visby Rules had passed, and the question arose as to whether the claim was time-barred in these circumstances. The English court held, after examining the language of the Hague-Visby Rules and the purposes underlying them, that they were intended to regulate the rights and obligations of the parties to the bill of lading and those who enter their shoes; Accordingly, that the shortened limitation period does not apply to a person who is not a party to the bill of lading (ibid., at pp. 976-977). A review of the current literature shows that this rule is also accepted by leading scholars in the field (see, for example, Scrutton, at p. 403; William Tetley, Marine Cargo Claims 1647 n.117 (4th ed. 2008) (hereinafter: Tetley); Richard Aikens et al., Bills of Lading 475-476 (3rd ed. 2021)).
- Similar rulings have been ruled in Australian law as well. In a case before the Supreme Court of Appeal of the State of New South Wales, the owner of a ship - who was not a party to the bill of lading (as opposed to the charterer of the ship) - sought protection under the shortened statute of limitations protection, after being sued more than a year after the date of delivery of the cargo. Similar to the English court, the Australian court also held that the rules are intended to apply only to parties to the bill of lading; therefore, a party that is foreign to the bill of lading is not entitled to benefit from the limitations of liability listed therein ( Gadsden Pty. Ltd. v Australian Coastal Shipping Commission [1977] 1 NSWLR 575). This rule has also been cited in the leading literature on the subject (see: Scrutton, at p. 417; Tetley, at p. 1647, note 117; Carver, p. 675). In fact, the Australian judgment and the English judgment in the Captain Gregos case, are "two sides of the same coin" - thus, whereas in the Australian judgment a foreign party to the bill of lading seeks to benefit from the shortened statute of limitations provision, so that it will apply to a claim filed against him; in the Captain Gregos case, similar to the one before us, it was asked to limit A foreign party to the bill of lading by virtue of this provision. Symmetrically, in both cases a similar conclusion was reached: the said statute of limitations applies only to the relations of direct parties to the bill of lading or the person who enters their shoes; and not on a foreign party to the bill (see the American judgment Stolt Tank Containers, Inc. v. Evergreen Marine Corp., 962 F.2d 276 (2d Cir. 1992), in which it was determined that a certain limitation of liability, equivalent to section IV(5) of the Hague Regulations, would also apply, in the specific circumstances set forth therein, to a foreign party to the bill of lading. For more on the judgment and the differences between it and the English judgment in the Captain Gregos case, see: Joseph De May Jr., Carriage of Goods by Sea Act - Application to Non-Parties, 24 J. Mar. L. & Com. 221 (1993)).
- It emerges from the compilation that the language of the Ordinance and the Regulations, the purpose of the Hague-Visby Rules, as well as the rulings established in case law in Israel and the Sea Countries, all support the conclusion that the abbreviated statute of limitations provision in section III(6) of the Regulations does not apply to a claim by a person who is not a party to the bill of lading or its substitute. It should be noted that this conclusion is also consistent with the court's tendency to interpret the statute of limitations in a narrow manner, in view of the high status of the right of access to the courts (see, for example: Civil Appeal 9413/03 Al-Naqwa v. The Local Planning and Building Committee, Jerusalem, IsrSC 62(4) 525, 546-547 (2008)). Indeed, I have not lost sight of Maersk's argument that this conclusion erodes the purpose of the shortened statute of limitations, to establish a clear period during which maritime carriers will be required to keep their evidence, after which they will be released from liability. This was also noted by the English Court in the Captain Gregos case (ibid., at p. 977). However, the balance between this harm to the carriers and the harm that will be caused by the application of the shortened statute of limitations to the claim of foreign parties to the bill of lading; For the reasons detailed above, in my opinion, we should prefer the conclusion that encloses the applicability of the provision in accordance with its purpose, and not the one that expands it.
Another and final argument by Maersk is that this conclusion will lead to the courts being flooded with lawsuits against sea carriers, and in doing so, will allow the parties to the bill of lading, whose claim against the maritime carrier has already become statute of limitations, to "circumvent" the statute of limitations by filing an "artificial" claim against an intermediate party who is not a party to the bill of lading, who will file a notice to a third party against the sea carrier. Maersk's argument does not change my conclusion. First, taking into account the small number of similar cases that have so far reached the courts in Israel and around the world, despite the precedents established in the Bellina case and in comparative law, it is doubtful whether there is any real concern that the courts will be "flooded" with such claiMs. Second, and most importantly, in our case, both Orda (the main plaintiff) and Gold Bond (the submitter of the notice) are not a party to the bill of lading; so that the notice to a third party in any case does not "bypass" the statute of limitations that applies to Orda. I will add, without further ado, when, as stated, this is not the case in our case - that in cases where the third party has a material defense against the main plaintiff in a manner that exempts him from liability (and in our case, as stated, this is a material and non-procedural statute of limitations), this may allow him to dismiss, for this reason, the claim for indemnity or participation that was filed against him (and compare: Civil Appeal 7115/14 Siruga-Bernir v. Cellcom Israel Ltd., paragraphs 21-27 [Nevo] (July 3, 2017); Civil Appeal 3765/95 Hussein v. Torem, IsrSC 50(5) 573, 580-581; Civil Appeal 303/75 State of Israel v. Rafael, IsrSC 29(2) 601, 605-606 (1975); and for the application of this rule by the Magistrate's Court in similar circumstances of a third-party notice against a sea carrier, see the Friedman case, at paragraph e(8)).
The Exception in Section III(6a) of the Regulations - A Claim for Indemnification Against a Third Party
- This is sufficient for us to reject the application for leave to appeal. However, since both parties argued on the matter, and in the examination of the matter beyond necessity, I saw fit to refer to the alternative argument of Gold Bond as well, regarding the applicability of the exception enshrined in section III(6a) of the Hague Regulations. This is the wording of the section:
"6A. A claim for indemnification against a third party may be filed even after the end of the year stated in section 6, if it was filed within the period of time that it is permitted to be filed under the applicable law in the court hearing it, provided that it is not less than three months from the date on which the plaintiff settled the claim or on which he was served with a summons to stand trial in a claim filed against him."