In a recent decision(1) the Petah Tikva District Court considered the interpretation of Articles 29(1) and 29(2) of the Warsaw Convention in Israel. The court held that the two-year limitation period set by the convention is an absolute provision which may not be extended by the provisions of local law.
A subrogation claim was filed by the National Insurance Institute (NII) against aircraft carrier Lipogan Ltd for recovery of insurance benefits paid by the NII to the widows of the deceased, who died when a private aircraft crashed on August 7 2008. The claim was filed on August 31 2010.
In its claim the NII alleged that according to the Carriage by Air Law 1980 and the Warsaw Convention, the carrier is liable (under Article 17 of the convention) for any damage caused to the deceased and is therefore required to repay the NII any amount which was and will be paid by the NII as a result of the accident.
It was also alleged that the carrier did not issue a flight ticket for the flight in question and did not specifically indicate the applicability of the Carriage Law and the convention to the flight. Therefore, according to the NII, the provisions which limit the carrier's liability under the convention should not apply in this case. The NII alternatively argued that if the court did not apply the Carriage Law and the convention to the flight, then the carrier bears vicarious liability for all acts and omissions of the pilot, as the carrier's employee.
The carrier filed a motion to dismiss the claim, alleging that it was time barred as the two-year limitation period stipulated by the convention had elapsed. The carrier further argued that the alternative argument of vicarious liability made no difference, as the claim was based on the argument that the convention applied to the flight.
The NII replied that the carrier had previously argued that the convention did not apply to the flight (in the estate's claim), and therefore it was now estopped from raising the opposite argument in the NII claim (ie, relying on the two-year limitation period under the convention). The NII further argued that in order to dismiss the claim based on the limitation argument, the court must determine, as a first stage, whether the convention applied to the flight. In order to do so, it must hear factual evidence.
In addition, the NII argued that the last date for filing the claim within the two-year limitation period (August 7 2010) occurred during the court recess (July 15 2010 to August 31 2010); therefore, it could have been filed at the end of the court recess period. The NII relied on Article 29(2) of the convention, which provides that the calculation of the limitation period will be made according to the law of the court which hears the case, and referred to Section 10(c) of the Interpretation Law 1981. The NII argued that according to the above provision, if the last date for performing a legal act occurs during a recess period, it will be considered as having been executed on time if it was done on the day after the end of the recess. Therefore, as the claim was filed on the last day of the recess (August 31 2010), it should be considered as having been filed within the two-year period.
The district court declined the motion, arguing that the question of whether the convention applied to the flight required a thorough hearing of evidence, and therefore the court could not decide whether the claim was time-barred at this stage. In addition, the court declined the carrier's argument that the alternative argument of vicarious liability was irrelevant.
The court then addressed the NII's argument regarding the calculation of the two-year limitation period. It analysed Article 29(2) of the convention, according to which "[t]he method of calculating the period of limitation shall be determined by the law of the court hearing the case".
The court determined that the two-year limitation period under Article 29(1) to the convention is an absolute provision that cannot be extended according to the provisions of the local law.
The court based its decision on previous judgments of the Supreme Court(2) which ruled that the provision in Article 29(2) covers technical and insignificant exclusions on the calculation of the two-year period (eg, where the date for performing a legal action occurs on a holiday during which the courts are closed), and not causes for extending the period of limitation under local limitation laws.
The court stated that as it is possible to file a claim during the court recess, this is an example of one of the cases that is not covered by Article 29(2).
In a subrogation claim, the NII stand in the shoes of the passenger injured in the crash and its claim should be lodged in court within the two-year period from the date of the accident.
In this case, although the decision was delayed to the later stage of evidence, if the court applies the convention to the flight in question, the NII claim will be time-barred and dismissed.
The above decision was appealed.(3) However, the appeal was denied by the Supreme Court, which ruled that the question of whether the convention applied could not be decided at an early stage and required factual examination and hearing of the evidence.
For further information on this topic please contact Peggy Sharon or Keren Marco at Levitan, Sharon & Co by telephone (+972 3 688 6768), fax (+972 3 688 6769) or email ([email protected] or [email protected]).
(1) NII v Lipogan, CF 54512-08.
(2) Dadun v Air France Airlines, CA 20/83, PDI 38(3); Teichner v Air France Airlines, 785 AA 36/84, PDI 41(1), 589.