Since IEC did not bother to ascertain in advance what loads the winches could withstand, and what their proper condition was, there is no causal connection between one representation or another on the part of the defendant in this matter (if at all), and the occurrence of the event; There was no actual reliance on the part of IEC in this matter, and therefore there is no deception in this context; It appears that the plaintiffs' arguments in this regard were raised after the fact, in an attempt to raise a defense argument in relation to an issue that was not examined in real time by the party responsible for the loading process.
Note Before summarizing this part - the defendant's claim of a material statute of limitations
- According to the defendant, the Phoenix claim for Paz's indemnification for the costs of relocating the cargo from Ashdod to Ashkelon, is a claim for damage related to the 'cargo' for which a bill of lading was issued, and to which the 'Hague-Visby' rules apply, which establish a substantial statute of limitations of one year from the date of the damage event (section 6III of the Rules). Hence, according to the defendant, the Phoenix claim became time-barred.
- In view of the above-mentioned discussion of the matter of liability, and the resulting result of the rejection of the claim, I do not find it necessary to delve into the claim of substantial statute of limitations, and I will suffice with the fact that I do not believe that the Phoenix claim, which is not a claim for damage caused to the cargo, but rather a claim based on a claim of tort liability in the process of loading, which caused damage in the form of the need to relocate the place of loading, is not a claim for damage to 'cargo' to which the Hague-Visby rules apply. Therefore, there is no application in this case to a material statute of limitations as set forth in the general.
Summary of the Liability Issue
- In view of the above, I found that the decisive responsibility for the incident and the damage that is the subject of the claim lies with IEC, which was responsible for the improperly managed loading process, while at the same time no liability was proven as claimed by the defendant.
In any event, even if we assume that such liability can be attributed to the defendant, such liability is void in the case at hand as opposed to IEC's liability, which severs a causal link between liability on the part of the defendant and the damage, since IEC's liability is the "decisive cause" of the damage.