In December 2021, the Petah Tikvah Magistrate Court dismissed a claim filed against DHL (Israel) Ltd, applying the principle of the exclusive cause of action set by the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention), on the grounds that the plaintiff had failed to send a letter of protest within the timeframe of 21 days set out by the Montreal Convention.(1)
In March 2020, the plaintiff ordered a cargo of face masks (KN95) for distribution in Israel. The plaintiff undertook a commitment towards a third party to supply 20,000 masks no later than 20 April 2020, so it carried out the necessary arrangements for express transport.
The plaintiff argued that he had not received the goods on time and that the defendant had charged him a significant fee, contrary to the agreement made between the parties.
Due to the urgent need to meet the deadline for supplying the masks, the plaintiff had no alternative but to pay the fee in order to release the goods. Despite this, the plaintiff argued that the defendant did not release all of the masks.
The plaintiff demanded the payment of 339,295 new Israeli shekels, which constituted:
- the amount he had paid to release the goods, in excess of the amount that had allegedly been agreed between the parties; and
- the value of the masks that had not been released.
The claim was based on the Contract Law, the Bailees Law, the Unlawful Enrichment Law, the Consumer Protection Law and the Tort Law.
The defendant (DHL Israel) argued for lack of privity, as DHL Israel was not a party to the contract between the plaintiff and the goods' supplier, nor a party to the air carriage contract with the air carrier (DHL China). DHL Israel claimed that it had acted as the air carrier's agent and that its services had been given to DHL China.
In addition, the defendant argued that the claim was subject to the Montreal Convention, according to which there is an exclusive cause of action, and it is not possible to file a claim against the air carrier nor against its agent, based on other laws.
DHL argued that the claim should be dismissed since the plaintiff had not fulfilled the requirement of article 31 of the Montreal Convention – namely, to send a letter of protest within 21 days, which is a precondition to the right to claim damages.
As to the merit of the claim, DHL argued that the plaintiff's damage had been caused by his own negligence and by the negligence of the Chinese supplier, which had divided the cargo into seven sub-cargo loads and provided a false value declaration, resulting in the authorities imposing additional unpaid taxes.
The Court accepted the plea of lack of privity, as DHL Israel was not a party to an agreement with the plaintiff.
The Court stated that this conclusion could have still allowed the plaintiff to base his claim on the Tort Law (ie, negligence); however, this was not possible due to the principle of the exclusive cause of action according to the Montreal Convention, which solely governs any claim within its framework.
The Court referred to article 43 of the Montreal Convention, according to which an air carrier's agent can rely on the provisions thereof, and, therefore, the claim against the air carrier's agent was limited to the Montreal Convention.
According to article 31 of the Montreal Convention, where cargo is delayed, the plaintiff must submit a written complaint within 21 days from the date on which it becomes aware of the damage.
The Carriage by Air Law 1980 applies, in Israel, the Convention for the Unification of Certain Rules relating to International Carriage by Air (the Warsaw Convention) and the Montreal Convention. Clause 15 of the Carriage by Air Law provides that the period during which a party is entitled to claim damages is limited to the timeframe set by the Montreal Convention. The Court cited several cases in which claims have been dismissed based on this argument.(2)
The Court thus ruled that:
- the contractual causes of actions were dismissed due to lack of privity;
- the contractual and tortious causes of action were dismissed based on the exclusive cause of action; and
- the claim based on the Carriage by Air Law was dismissed based on the breach of the provisions of the Montreal Convention with regard to the letter of protest.
The plaintiff was ordered to pay 10,000 new Israeli shekels to cover the defendant's legal costs.
The plaintiff may still file an appeal with the District Court.
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.
(1) CF 23965-12-20 Said Gara v DHL Israel Ltd.
(2) CF (Rishon Lezion) 3751/08 Shahram Mordian v El Al Airlines, SC (Haifa) 982-03-14 Yosef Yativ v UIA, SC (Rishon Lezion) 37261-03-16 Yafit Raybach v Ofir Tours Ltd.