We will discuss this at length below, when we discuss the plaintiffs' claim of failure or defect in these mechanisms.
The Issue of Liability
- When we have discussed the sequence of events that day, and the immediate causes thereof, the question of legal liability for this chain of events arises.
Overview
- Before we get into the depth of the specific case at issue in this proceeding, there is room to discuss the general principles of the division of responsibility between the ship's crew and the port staff in which it is docked.
- When a ship arrives at the port and wishes to enter the port for the purpose of docking for the purpose of loading fuel, a distinction must be made between two different stages - the routing stage until the ship docks, and the loading stage after the ship has been docked.
The main judgment that discussed the difference between these stages was heard in the framework of civil appeal 804/80 Sidaar Tanker Corporation et al. v. Eilat Ashkelon Pipeline Company Ltd. et al. [Nevo] (hereinafter: the "Sidaar case").
- The pilotage stage (or navigation) relates to the ship's entry into the port, and its maneuvering to the place of its anchorage and confinement.
In principle, liability at this stage is set out in the Torts Ordinance Caused by Ships in Navigation, which states in its section 2 that "notwithstanding all the provisions of any Ottoman law or any other law or ordinance, the owner or captain of any ship in navigation, whether the navigation is coercive or otherwise, shall be liable for any loss or damage caused by the ship or by a mistake in the navigation of the ship." This liability was interpreted in case law as absolute liability (Civil Appeal 542/73 "El Yam" Cargo Ships v. Ports Authority [Nevo]).
It should be noted that to the question of whether the aforementioned Ordinance negates defense claims against another party that caused the damage, the Supreme Court answered in the negative in the Sidaar case, in a majority opinion given by Justice Barak.
- However, the said Ordinance applies only to the navigation stage of the ship, and does not extend to subsequent stages, such as loading cargo while the ship is docked.
In the Sidaar case, it was held, according to Justice Netanyahu, with whom all the justices agreed on this point, that "it is inconsistent with a situation of navigation or routing, when a ship has already reached its final destination, is in a stationary position and is anchored or anchored in the port, does not sail and is not planned to lift anchor or detach in preparation for sailing or traffic."