Other Municipality Requests 296/71 The ship "Mitra Asimina" and its owner vs. "Halfour" in a tax appeal and 4 others, IsrSC 25(2) 632 (1971) The Supreme Court rejected the argument that the section does not apply to indirect damage and ruled that the damage to the cargo does not have to be physical or direct. By virtue of this determination, he confirmed that a claim for the return of salvage fees that the cargo owner and his insurers were required to pay, is covered under the substantive jurisdiction of the Maritime Court (see also: R' Gottschalk above).
- This determination therefore emphasizes the "damage" caused to the cargo. It seems that the expression "indirect damage" can also carry a payment for participation in general damage to which all the owners of the cargo on board the ship were charged (even if this payment has not yet been actually paid) (cf. my decision inM.A. (Haifa) 49296-10-23 Packer Steels & Galvanizing in Tax Appeal v. The Ship V. BRAVO (October 29, 2023)). Hence, this court has jurisdiction to hear the present claim by virtue of section 6 of the 1861 law.
- It should be recalled that similar claims for indemnification for participation payments for general damage have also been discussed in the past in the Maritime Court (see Civil Appeal 551/73 Marioca Shipping And Investment Company S.A v. Sela Insurance Company in a Tax Appeal , IsrSC 28(2) 136 (1974), although there was transferred to the civil court at the end of the hearing).
- At this stage, there is no need to discuss the issue of transferring the hearing, but it should be noted that in accordance with the law as ruled Other Municipality Requests 551/73 The court can transfer the hearing from Hefza's claim to Gavra's claim against the ship's owners (see also B. Bracha "Notes to His Internal International Authority of the Haifa Maritime Court in maritime claims In Rem" Law Studies D. (3), 707, 714 (1975)).
Delay of Proceedings Due to the Jurisdiction Clause
- The shipowner argues that the proceedings in this court should be stayed in light of a unique jurisdiction clause included in the underwriting letters signed by the plaintiffs, according to which all disputes arising from the agreement will be transferred to the English court for hearing.
- As is well known, a foreign jurisdiction clause in agreements between a vessel owner and cargo owners is intended to benefit the shipowner and to concentrate all litigation arising from the ship's voyage into a single court, which is convenient for him (Civil Appeal 791/77 Aharon Rosenfeld & Sons in Tax Appeal v. Freedom Fund Insurance Company BTax Appeal IsrSC 32(3) 729 (1978); Civil Appeal Authority 851/99 T. Van Doosselaere , 77"IV" N' Depypere, IsrSC 57(1) 800 (2003); Civil Appeal 8205/16 Contrastock OY v. The Ship, Thor Horizen and the ship's owner (25/1/2018)).
- In order to give effect to a foreign jurisdiction clause, which was established in the engagement between a ship owner and the cargo carriers, and to order a stay of the proceedings, a number of questions must be clarified; Whether the stipulation applies to the dispute that is the subject of the proceeding, whether the stipulation establishes a unique or parallel place of jurisdiction, and whether there are circumstances that justify the court ignoring the stipulation (See Civil Appeal 8205/16 above). And dove. The rule is that even if the jurisdiction clause between the parties applies to the dispute, and even if it correctly means granting unique jurisdiction to the foreign court, the court will always have discretion as to whether to enforce the stipulation, or not (See Civil Appeal Authority 851/99 The above; Civil Appeal 601/82 Bank Leumi Le-Israel in Tax Appeal v.' Continent Israel Schiffahrts g.m.b.h- .c.i.sIsrSC 40(2) 673 (1986)).
- The jurisdiction stipulation that is the subject of the request for a stay of proceedings in the letter of guarantee signed by the plaintiffs (Appendix 4 to the request for the detention of the ship) provides as follows:
That this agreement shall be governed by English law, High Court of Justice of England and Wales shall have exclusive jurisdiction over any dispute arising out of this agreement, and each party shall irrevocably submit to the jurisdiction of that court.