Facts
EL AL's arguments
Plaintiff's arguments
Decision
In a recent ruling(1) the Acre Magistrates Court applied Article 25 of the Warsaw Convention and determined that the claim under consideration was not subject to the limitation of indemnity provided for by Article 22 of the convention.
On July 31 2009, while returning from Toronto to Israel on an EL AL flight, during the security check-in inside EL AL's security room the plaintiff was informed by EL AL's representatives that she was required to leave her laptop case, including its contents, inside her suitcase and could not carry the laptop on the aircraft.
Inside the aircraft, the plaintiff received four tickets in respect of her luggage without further explanation. On arrival in Israel, the plaintiff discovered that her suitcase was empty and that her laptop case was missing.
The plaintiff approached luggage claims and discovered that part of the contents of her suitcase had been placed in four cardboard boxes and that some of the items were missing.
The plaintiff filed a claim for $4,160 in respect of the missing contents (including her laptop, camera and clothes). In addition, the plaintiff claimed for mental anguish.
EL AL argued for the applicability of Article 22 of the convention (which limits the carrier's liability) to the carriage, as both Israel and Canada are parties to the convention.
EL AL also argued that the claim should be dismissed in limine (ie, before hearing the main issue), as Clause 9(a) of the Flight Law 1977(2) authorised EL AL to perform security checks on passengers and Clause 12 provides that no person is allowed to enter an aircraft unless a security check has been performed on the passenger and his or her luggage. Therefore, EL AL had acted according to its authorisation while performing the security check and when deciding not to board part of the plaintiff's luggage onto the aircraft.
Clause 19 of the law grants immunity (ie, exemption from liability) to an individual who performs a security check against any civil or criminal claim in respect of such check. It was further alleged that as Article 22 of the convention provides a limited amount of indemnification, the plaintiff's claim should be limited accordingly.
As to the claim for mental anguish, EL AL argued that previous judgments had determined that the law does not allow compensation beyond the limited amounts provided under the convention.
The plaintiff argued, among other things, that Article 25 of the convention - where the damage results from an act or omission that has been done with the intention to cause damage or through recklessness and indifference towards the probability of damage - should apply, and hence the limitation under Article 22 should not apply.
In respect of the security check and EL AL's decision not to permit the plaintiff to board the aircraft with her laptop, the court stated that previous judgments had ruled that security checks are one of the carrier's powers and obligations. The court noted that although this procedure can be uncomfortable by its nature, it is necessary. The Flight Law provides immunity against claims for damage caused during this procedure, unless it can be proven that the damage resulted from a malicious act. In the case at hand, the court ruled that the plaintiff had not proven that the security check was done in an unreasonable way or that it deviated from the required procedure.
As for the contents of the luggage, the court ruled that the nature of the package does not constitute part of the security check; therefore, the claim under the convention was the passenger's exclusive cause of action. The court analysed the circumstances and concluded that the fact that the contents of the plaintiff's luggage had been divided into several boxes could have been expected to lead to a possible loss of all or part thereof. Furthermore, the fact that EL AL had removed the laptop from the suitcase had substantially increased the chances of such loss.
The court stated that, as a reasonable airline, it would have been expected that EL AL ensure that the contents were packed inside the suitcase, as it was originally handed over, or alternatively in a similar package. By not doing so, EL AL had acted with gross negligence and with indifference to the possible results of its actions. The court therefore applied the provisions of Article 25 of the convention and ruled that the claim was not subject to the limitation amounts set in the convention.
EL AL was obliged to pay the plaintiff IS6,600 (approximately $1,746) plus legal expenses of IS2,000.
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]).
Endnotes
(1) CF (in fast proceedings) 39380-01-10, Rania Mugrabi v EL AL Airlines Ltd (November 3 2011).
(2) The Flight Law 1977 was cancelled and replaced on April 15 2011 by a new law, the Flight Law 2011.