The Petach Tikva Small Claims Court recently held that the Montreal Convention did not apply to an internal flight between two destinations in Spain, and that an Israeli court had jurisdiction to hear the claim.(1)
The plaintiffs, two Israeli citizens, purchased tickets for an internal flight between two destinations within Spain. The tickets were purchased from Air Berlin over the telephone on a call from Israel to Germany. Two days before the flight, the plaintiffs discovered that they were placed on two different flights and, as a result, suffered financial loss and mental anguish.
The claim was filed against the carrier, Air Berlin.
Air Berlin filed a motion to strike out the claim based on the argument that the Israeli court had no jurisdiction to hear the case (based on Article 33 of the Montreal Convention).
According to Air Berlin, the claim was subject to the provisions of the Montreal Convention, which provides an exclusive right of claim; and according to the provisions of Article 33, the Israeli court was not the competent court to hear the claim.
According to Article 33, a claim can be brought, at the option of the plaintiff, in the territory of one of the states which is a party to the claim, before:
- the court of domicile of the carrier's place of business (Germany);
- the court at the place of business where the contract was made (Germany); or
- the court at the destination of the flight (Spain).
Air Berlin argued that the only connection that the claim had to Israel was the fact that the plaintiffs were Israelis.
In addition, the plaintiffs' direct contact was with Air Berlin in Germany on behalf of Spanish airline Iberia for an internal flight within Spain. The tickets were not booked through Air Berlin's agent in Israel.
The act or omission (which was denied) by the defendant was thus made internally in Berlin. The defendants argued that handling the claim in Israel would impose a heavy and unjustified burden on Air Berlin as a company based abroad.
The court referred to Article 1.2 of the Montreal Convention, which provides as follows:
"Article 1 – Scope of Application
1. This Convention applies to all international carriage of persons…
2. For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention."
In view of Article 1.2 and Clause 3(a) of the Israeli Carriage by Air Law 1980, the court held that the Montreal Convention does not apply in the case of an internal flight where the place of departure and destination are in the same country.
In this case, there was no doubt that the plaintiffs had purchased tickets for an internal flight between two destinations within Spain with Iberia Airlines.
Was the Israeli court the correct forum?
The court held that the burden to prove that the Israeli court was not the appropriate forum rested with the party which raised the argument of forum non conveniens, who had to prove that another forum had jurisdiction over the claim.
That party had to convince the court that the balance favoured the foreign forum. The defendant was required to provide substantial evidence to prove that its rights would be prejudiced if the claim were handled in Israel.
The court referred to the Supreme Court precedent in Uri Arbel v Tui AG(2) in which the court applied the following three criteria to determine the appropriate forum:
- the legal forum which has the most links to the dispute;
- the parties' expectations with regard to the place of litigation in case of a dispute; and
- public considerations (primarily, which forum has the real interest to hear the claim).
The court held that there was no dispute that the plaintiffs were Israeli citizens and that the transaction was made by telephone from Israel.
In addition, Air Berlin operated regular flights to and from Israel and was therefore obliged to appoint a representative in Israel.
The court also stated that a commercial entity which operates all over the world must take into consideration that it could be sued in any country in which it operates.
As Air Berlin was involved in international activities and had a representative in Israel, the court balanced the burden on Air Berlin of participating in legal proceedings in Israel against the burden on the plaintiffs of participating in legal proceedings in Germany, and held that the claim should be heard in Israel.
As a result, the court denied Air Berlin's motion for dismissal.
In view of the amount claimed, the court suggested that the parties attempt an out-of-court settlement.
According to the Carriage by Air Law, the Montreal Convention also applies to an internal flight in which the place of departure and destination – according to agreement between the parties – are in the territorial limits of Israel.
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.