On December 16 2010 the Rishon Le-Zion Magistrates' Court handed down judgment in a case involving eight claims filed by passengers as a result of a delay of approximately 17 hours in a flight from Israel to Turkey.(1) All eight claims were united and heard together. Some of the passengers decided not to take the delayed flight and thus claimed for a full refund; other passengers took the delayed flight and claimed damages (mainly for mental anguish) caused by the delay.
The claims were filed against the following defendants:
- the air carrier (ON Air);
- the flight organiser (Flying Carpet and Flight Connections);
- the handling company - the company which provided the ground services (Laufer Aviation GHI Ltd); and
- the travel agents.
Following the witnesses' testimonies, the court concluded that there were two reasons for the delay:
- A first delay was caused due to a severe technical malfunction in the aircraft which was discovered when the aircraft landed in Israel (before the flight in question); and
- A second delay occurred after the passengers had already boarded the aircraft, when the captain refused to take off due to one of the passengers being in an advanced stage of pregnancy.
The court examined the liability of each defendant and reached the following conclusions.
First delay
Liability of air carrier
Regarding the air carrier's liability, the court applied the exclusive right of claim provision under Clause 19 of the Warsaw Convention, which imposes liability on an air carrier as a result of a delay in flight. However, in view of Clause 20(1) of the convention, which exempts the air carrier from liability in cases where it proves that it had taken all measures to avoid the damage, or that it was impossible for it to take such measures, the court examined whether, under the circumstances of this claim, the air carrier should be held liable. Based on the factual findings, the court concluded that the air carrier did not take all necessary measures to avoid the damage and thus found it liable.
With regard to payment of compensation, the court stated that since Clause 19 does not specify the type of damage for which the air carrier will be liable (as opposed to Clause 17 of the convention, which specifically relates to death, wounding or other bodily injury), the court could oblige the air carrier to compensate the passengers for the mental anguish caused by the delay. The court referred to a previous judgment which dealt with this issue.(2)
Liability of flight organiser
The court determined that the flight organiser is not considered to be the air carrier's agent or servant, and thus it is not subject to strict liability under the provisions of the convention. Having said that, the court also determined that the Carriage by Air Law 1980 and the convention's provisions applicable to an exclusive right of claim against an air carrier do not prevent the filing of a claim based on a different cause of action against other tortfeasors, such as the flight organiser.
Under the circumstances of the case, the court concluded that the flight organiser should bear liability for the first delay and allocated the liability between the air carrier (70%) and the flight organiser (30%).
Second delay
With regard to the second delay, the court concluded that the flight organiser, the travel agent and the handling company should all bear liability for the damage caused to the passengers by the delay. As for the handling company, the court determined that the cause of action against it was also independent, as it was not considered to be the air carrier's agent or servant, and thus its liability was outside the scope of the convention.
The judgment was not appealed and thus is final. However, as it was given by a magistrates' court, it has only a persuasive, not a binding, force.
In further news, a few months ago the Carriage by Air Law 1980 was amended to apply the Montreal Convention to international and domestic carriage. Following publication by the Foreign Ministry in the Official Gazette, the amendment will come into force on March 20 2011.
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]). The Levitan, Sharon & Co website may be accessed at www.levitansharon.co.il.
Endnotes
(1) Sharlit v Flying Carpet, CF 955/08.
(2) Iberia Spanish Airlines v Dr Lorber, CA 1346/05 (Haifa).