Introduction
Shlomo Cohen v Turkish Airlines
Bogdan Polonsky v Israir Aviation Services


Introduction

According to Clause 5 of the Aviation Services Law (Compensation and Assistance for Flight Cancellation or Change of Conditions) 2012 (ASL), passengers who are denied boarding are entitled to compensation.

However, in two recent district court judgments concerning passengers that were denied boarding, the courts found that passengers must arrive at the boarding gate on time and that this duty had not been fulfilled. As a result, the airlines were not obliged to pay compensation under the ASL.(1)

One of the judgments was later appealed through a motion for leave to appeal to the Supreme Court, which declined the motion.(2)

Shlomo Cohen v Turkish Airlines

The plaintiff, Shlomo Cohen, appealed a magistrates court judgment which had declined his claim for compensation from Turkish Airlines and obliged him to pay legal costs to the airline. The district court declined the appeal with costs.

Arguments
The plaintiff argued that he had arrived at the gate on time and that either way, the flight had departed with a delay so he could have boarded the aircraft. He further argued that the final boarding time was stated on the ticket in small print and that Turkish Airlines should have made a final call to the passengers of the flight announcing that the gate was closing.

Turkish Airlines rejected the plaintiff's argument that he had arrived at the gate 15 minutes prior to departure, arguing that he had arrived late. As evidence, Turkish Airlines presented a report according to which the last passengers to board the flight did so 15 minutes prior to the flight, noting that had the plaintiff arrived with them at the gate as argued, he would have boarded the flight. In addition, Turkish Airlines presented a document according to which the plaintiff's ticket was only removed from the passenger list 10 minutes before the flight. In addition, Turkish presented evidence to show that the flight had empty seats so that there had been no need to deny his boarding the flight.

Decision
The district court declined the plaintiff's appeal, stating that it accepted the facts as determined by the magistrates' court, according to which the plaintiff had arrived late at the gate.

The district court further declined the plaintiff's argument regarding his flight ticket, stating that the boarding time was written clearly on the ticket in a large font and that the plaintiff had been obliged to present himself at the gate at the specified time. The court also rejected the plaintiff's argument that Turkish Airlines should have called the passengers on the airport's PA system since it is not within the scope of its obligations.

The court accepted Turkish Airlines' argument, according to which flight gates are closed 15 minutes prior to departure in order to prepare aircraft, store hand luggage and carry out the required safety procedures.

Further, the court stated that the aviation system is complex and often depends on external factors. As a result, flights should depart at the scheduled time. It also stated that the fact that the flight in question had been delayed for take-off was not a factor and that boarding should not be reopened solely for one passenger.

The plaintiff filed a motion for leave to appeal with the Supreme Court. The court denied the motion stating that an additional appeal was not justified under the circumstances.

Bogdan Polonsky v Israir Aviation Services

The plaintiff, Bogdan Polonsky, filed a motion for leave to appeal on a small claims court judgment, which had declined his claim against Israir. The district court declined the motion, stating that it accepted the small claims court's factual conclusions and therefore an appeal was unjustified.

The plaintiff had arrived at the airport three hours prior to his flight but decided not to join the long security queue and instead took a seat and played with his mobile phone. According to the plaintiff, he had joined the security line an hour and a half prior to his flight. However, according to the plaintiff, he had cleared security only half an hour prior to his flight. By contrast, the airline claimed that the plaintiff had cleared security 15 minutes prior to his flight.

The court found that the fact that the plaintiff had arrived at the airport three hours before departure was irrelevant. Rather, the fact that he had arrived at the security check only 15 minutes prior to departure meant that the airline bore no liability.

The court further stated that given that the flight had departed as scheduled with many vacant seats (so the plaintiff had not been denied boarding due to overbooking), the ASL did not apply.

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 protected] or [email protected]). The Levitan, Sharon & Co website can be accessed at www.israelinsurancelaw.com.

Endnotes

(1) CA 31272-07-18 Shlomo Cohen v Turkish Airlines (23 January 2019) and PCA 80625-01-19 Bogdan Polonsky v Israir Aviation Services Ltd (5 February 2019).

(2) RCA 1422/19 Shlomo Cohen v Turkish Airlines (18 March 2019).