June 20 2012
First instance decision
Appeal court decision
On February 13 2011 the Tel Aviv District Court, in an appeal, ordered Austrian Airlines to compensate plaintiffs following an unreasonable flight delay, which had been caused by damage to the pilot's cockpit window.
On October 10 2008 the plaintiffs were on board an Austrian Airlines flight from Vienna to Israel. One hour after take-off, passengers were notified that, due to a crack in the pilot's cockpit window, it was necessary to return the aircraft to Vienna. As a result, the plaintiffs endured a delay of approximately 33 hours, arriving in Israel more than one day later than scheduled.
The Tel Aviv Magistrates Court dismissed the plaintiffs' claim, stating that the reason for cancelling the flight had arisen unexpectedly and that, on discovering the fault, the carrier had behaved reasonably towards the passengers .
The court stated that the burden to prove the factual basis of the claim and the allegation of gross negligence by the carrier lay on the plaintiffs, and they had failed to lift the burden of proof.
The Tel Aviv District Court accepted the appeal. It referred to Article 19 of the Warsaw Convention, which provides that an air carrier is liable for a delay, and Article 20(1), which states that a carrier cannot be held liable if it proves that it took all necessary measures to prevent the damage or, alternatively, that it was impossible to take such measures.
The district court did not agree with the lower court's stance that the burden to prove gross negligence by the carrier lay on the plaintiffs.
The court based its decision on Carriage by Air by Fountain Court Chambers,(1) in which it is stated that the defences under Article 20 are applicable in cases of delay; however, it is usually necessary to prove not only that the carrier did everything possible to shorten the delay, but also that it did everything possible to prevent the delay in the first place.
It further states that where the circumstances of an accident are unknown, it will be assumed that the carrier failed to lift the burden of proof required in order to prove the defences under Article 20 of the convention.
The court concluded that the appellants had proved the delay, which had exceeded three hours – the minimum time period for a flight delay claim under the convention.
The court further ruled that the carrier had not proved its defence – that the cancellation of the flight had resulted from a technical, unexpected and unusual fault which was noticed only after take-off. The carrier had provided no proof relating to measures taken to trace the fault in advance (eg, maintenance treatments designed to trace such 'unexpected' faults or measures taken in order to prevent them). No sufficient evidence was presented to explain how, notwithstanding the actual maintenance and controls performed, the crack had been caused at that time.
The court ruled that the carrier was liable for the delay and awarded compensation of IS3,800 to the plaintiffs, as well as IS20,000 for legal costs in respect of the litigation in both instances.
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@example.com or firstname.lastname@example.org).
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