The Aviation Services Law (Compensation and Assistance for Flight Cancellation of Change of Conditions) was enacted in 2012. Since then, various lower court (ie, small claims court) judgments have held that technical malfunctions which cause delays or cancellations to flights are not considered 'special circumstances' which exempt the carrier from paying the monetary compensation set by the Aviation Services Law.
In a recent judgment, the Netanya Small Claims Court denied a claim and determined that a technical malfunction in an aircraft which caused a flight delay constituted special circumstances.(1)
The plaintiff filed a claim against Arkia Israeli Airlines due to a six-hour delay to his flight from Israel to Paris.
The plaintiff argued that he did not receive notification of the delay. Hence, he arrived at the airport and had to wait for six hours before take-off. As a result, the plaintiff missed one booked night in his Paris hotel and one day of his vacation, as he and his wife had arrived tired due to the delay.
The delay and resulting fatigue also meant that the plaintiff and his wife had not enjoyed, as they had hoped, the Adele concert which they had booked for the first evening of their vacation.
The plaintiff claimed NIS6,000, which included:
- NIS2,500 for the loss of one day of the vacation;
- NIS500 for the loss of one night at the hotel; and
- NIS3,000 for the loss of enjoyment of the concert.
A rare and unexpected technical malfunction was discovered in the aircraft as the previous flight touched down in Israel. The malfunction related to a component which reads the air flow data during the flight. The probability of such a malfunction was very low. Identifying the malfunction and its repair took many hours more than expected and hence the aircraft was grounded until the next day.
Arkia made every effort to find an alternative solution, including approaching other airlines (Israir Airlines and EL AL). However, as it was a holiday season, all other aircraft were full. Arkia notified the travel agency of the delay. The travel agency was responsible for notifying passengers of the flight change.
In accordance with Clause 7(a) of the Aviation Services Law, Arkia provided "assistance services" to passengers who arrived at the airport. It also allowed passengers to cancel their flight free of charge.
Arkia further argued that the maintenance of its aircraft was carried out by EL AL's maintenance team under strict rules, according to the manufacturer's instructions and subject to the supervision of professional parties in Israel and abroad. Therefore, the rare malfunction which was discovered in the aircraft was beyond its control.
The conditions of carriage included a provision according to which the airline does not guarantee the time schedule, which can be changed.
In addition, according to Article 19 of the Montreal Convention, the delay in take-off was the result of circumstances which were beyond Arkia's control.
A delay of five to eight hours falls within the scope of Clause 7 of the Aviation Services Law, and Arkia had provided the plaintiff with all of the benefits mentioned in this clause.
The court referred to Clause 7 of the Aviation Services Law, which provides that in case of a flight delay of between five and eight hours, passengers are entitled to choose between reimbursement of the cost of the ticket or an alternative flight ticket, according to his or her choice.
An 'alternative flight ticket' is defined as follows:
"Alternative flight ticket to the final destination of the passenger, in conditions, as much as possible similar, to the original flight ticket purchased and at the earliest date possible, or at a later date while coordinating with the passenger and subject to available seats on the flight."
In this case, the flight was delayed for six hours.
Arkia argued that it had complied with the Aviation Services Law and that the passengers' legal rights had been explained to them at its counter at the airport.
The court was convinced that no alternative flights to Paris had departed before Arikia's flight (ie, after the delay).
The aircraft had suffered a rare and serious malfunction which required repair according to the manufacturer's instructions. The malfunction had severe implications for the safety of the flight, which could have resulted in a crash. Arkia had notified the travel agency about the delay, had acted immediately to repair the malfunction and had even approached other airlines.
The main obligation of an airline is to ensure the safety and security of its passengers. There is no room for compromise in this respect and it cannot be expected that an airline will risk using an aircraft which has a technical malfunction which compromises flight safety.
Based on the evidence presented, the court held that there was no negligence on the part of Arkia in the periodical inspection or fault in the maintenance of the aircraft; rather, a rare malfunction had occurred.
After hearing Arkia's testimony, the court was convinced that the flight had been delayed due to special circumstances which were beyond Arkia's control, and that despite Arkia's best efforts, it could not have prevented the delay.
The plaintiff's claim was denied.
For further information on this topic please contact Peggy Sharon or Keren Marco at Levitan, Sharon & Co by telephone (+972 3 688 6768) or email (email@example.com or firstname.lastname@example.org). The Levitan, Sharon & Co website can be accessed at www.israelinsurancelaw.com.
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