Who is the Carrier’s agent?
In a judgement handed down on 28th June 2010 by the Magistrates Court of Tel Aviv, C.F 19308-01 Taga Electronic Components Ltd. vs. Worldwide DHL Express and Others, the Court analyzed the applicability of the Warsaw Convention to a carrier's agent. The Court examined whether the Convention applies to the forwarder of the shipments and to the entity which stored the shipment at the airport.
The Facts
Two claims were filed in respect of cargo which was shipped by Taga Electronic Components (hereinafter: Taga): one by Taga and the other by Israel Phoenix Insurance Co. The hearing of the two claims was united.
The claims were filed against DHL Israel, (the forwarder), Maman Cargo Ltd., (an airport warehouse), DHL International (UK) Ltd. (the carrier) and Mr. Alon Gal (who was employed at the relevant time by DHL Israel as a licensing clerk).
Plaintiffs alleged that the shipments were lost or stolen by Alon Gal prior to reaching their final destination and that the defendants are liable to the full amount of the shipments.
The parties' allegations
Plaintiffs alleged that the shipments were stolen due to the defendants' negligence while the shipments were in their possession and/or under their responsibility. Plaintiffs further alleged that the defendants breached the contract between the parties by not delivering the shipments to their final destination.
The main defence argument was based on the applicability of the Convention and the restriction of liability applicable to an air carrier and its agents under the Convention. Plaintiffs denied that the Convention applies to the defendants in this claim.
The Judgement:
The departure and destination of both shipments were in the countries which are party to the convention. The main question which was dealt with by the Court is whether the Convention will apply not only to DHL (the carrier) but rather also to the other defendants being agents of the carrier. In order to answer this question, the Court analyzed the role of each defendant as will be discussed below.
Maman
The Court decided that under the circumstances of this case, Maman should be considered as the air carrier's agent, as its services (storage, unloading and dispatching the cargo to and from the airplane) are part of the services provided by the carrier in the framework of the air carriage.
Accordingly, the Court reached the conclusion that the liability of Maman is limited under the Warsaw Convention.
The Court cited a previous judgement which was handed down by the Magistrate Court in the matter of C.F 182939/02 Maman v. Orman. In this judgement the Court ruled that Maman's role as the operator of the cargo terminal should be considered as an agent for the air carrier. The services rendered by Maman are accompanied to the services of the air carrier and they are "in the furtherance of the contract of carriage".
It should be noted that this ruling contradicts a previous judgement handed down by the District Court of Tel Aviv(Philip Gable Rays and Others v. Maman), in which it was determined that Maman should not be considered as the air carrier's agent.
DHL Israel
The Court reached the conclusion that as DHL Israel's services as a carrier were done in furtherance of the contract of carriage until its final destination, it should also be considered as an agent of the air carrier and therefore, the Convention should also apply to DHL Israel.
Plaintiffs argue that Alon Gal who stole the shipments was an employee of DHL Israel and hence, in view of Clause 25 to the Convention (willful misconduct) DHL liability should not be limited under the Convention. The Court did not accept this argument as the theft by Alon Gal was not made in his role as employee of DHL and it therefore does not have vicarious liability to his acts. Accordingly the Court ruled that DHL liability is subject to the limitations under the Convention.
Alon Gal
As he was convicted with theft, the Court ruled that Alon Gal was obliged to compensate Plaintiffs with the full claimed amount.
An appeal was filed to the District Court. The appeal is pending and in view of the broad findings of the Magistrates Court, the Appellate Court's judgement will be interesting.
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