When we are dealing with damage caused at the stage when a ship is already in its place, the aforementioned Ordinance does not apply, and the question of tort liability for the occurrence of such damage is dictated by the general law and the general tort law, including the Torts Ordinance [New Version].
- The stage in which a ship is confined to the port for loading and unloading is a unique stage in terms of liability, when it comes to managing the loading process.
The uniqueness stems from the fact that the knowledge and experience about the docking place, with its many special conditions, are in the hands of the entity responsible for operating the port.
The owner of the port and the person responsible for operating it, in addition to being the owner of control of the equipment located in the port and intended for the loading and unloading procedure, has the best knowledge and experience regarding the special conditions of the place, including the weather conditions that prevail at different times and in different seasons.
By virtue of his being the owner of control of the port and its equipment, and by virtue of his knowledge of the conditions unique to the place, it can be said that this factor is "the cheapest damage preventer", including in relations with ship owners and its operator, to whom sometimes the conditions of the place are completely alien.
- Thus, it cannot be said that the operator of a ship, including its captain, "disclaims" any liability with respect to the pilotage stage or the loading stage of the ship while it is still confined, and it is still possible to impose liability on it, depending on the circumstances of the case, including the factors that led to the damage.
- A special case of loading a ship while it is confined is its loading and unloading with fuel and oils. In such a case, the Ports Regulations (Loading and Unloading of Oils), 5736-1975 (hereinafter - the "Ports Regulations") apply, which determine the division of responsibilities and various roles between the person responsible for the operation of the port and the ship's crew, and we will expand on this later, in relation to the specific case before us.
- In the context of loading a ship while it is confined, including for the purpose of loading oils and fuels, the role of the "Loading Master", the person appointed by the port operator to manage the loading process, is of particular importance.
The person in charge of loading has extensive powers with respect to the loading process, including the provision of binding instructions to the captain of the ship, as appears from the Ports Regulations, and from the evidence material placed before me, including the testimony of Corporal Gidron and the procedures of the Corporal of the ship, which we will discuss below.