On 29 November 2018 a federal court in Argentina dismissed a lawsuit against El Al Israel Airlines filed by an Argentine passenger based on Article 33 of the Montreal Convention.
The passenger filed a lawsuit against El Al before the Federal Civil and Commercial Court after she had missed a flight from Paris to Tel Aviv for refusing to board without her hand luggage after being selected for a random security screening. The claimant had arrived in Tel Aviv with Iberia Airlines and had tickets with the same carrier from Tel Aviv to Buenos Aires.
While in Tel Aviv, the claimant bought tickets to visit different places in Europe, including a ticket with El Al from Paris to Tel Aviv. This ticket was acquired on El Al's Israeli website and paid for in euros.
During the check-in process to board El Al Flight LY328 on 31 July 2016, the claimant was randomly selected for a security screening. The screening went normally until El Al personnel realised that the claimant was travelling with a number of pieces of electronic equipment that require a security scan before they can be brought on board. As the claimant was already running late for her flight to Tel Aviv, El Al offered to book her on the next flight or to transport her equipment on the next flight to Tel Aviv. Knowing that she would miss her flight from Tel Aviv to Buenos Aires as a result (which was operated by a different carrier on a different ticket), the claimant refused to board the departing flight from Paris or to travel on the next flight.
After losing her return ticket from Tel Aviv for being a 'no show' for the reasons explained above, the claimant bought a new ticket from Paris to Madrid and from Madrid to Buenos Aires.
In November 2017 the claimant filed a lawsuit against El Al in Argentina alleging moral and material damages and requested a refund of the Iberia Airlines ticket from Tel Aviv to Buenos Aires (via Madrid) and the Madrid to Buenos Aires ticket that she had subsequently bought. The claimant's lawyer alleged that she had missed her Tel Aviv to Buenos Aires flight due to the security screening and although the El Al and Iberia tickets had been issued independently, El Al was still obliged to transport her back to Buenos Aires after she had decided not to leave her hand luggage and missed her flight from Paris to Tel Aviv as a result.
In August 2018 El Al requested the dismissal of the lawsuit based on a lack of jurisdiction as set out by Article 33 of the Montreal Convention 1999.
Federal Judge Alicia Bibiana Perez accepted El Al's motion to dismiss. The judge examined the different hypothesis described by Article 33 in order to rule that the claimant had not filed a lawsuit against the airline before the courts:
- where the carrier was domiciled or had its principal place of business;
- where the contract had been made; or
- at the claimant's planned destination.
Further, the judge dismissed the claimant's allegations regarding her domicile as a consumer, as further analysis showed that the Argentine credit card which she had used to pay for her ticket had been issued in someone else's name.
Judge Perez also examined the complainant's claim that the Consumer Protection Law had jurisdiction and found that while the case involved a consumer contract, the Montreal Convention took precedence due to the lack of contact points between the authorised jurisdictions under the convention and the claimant's alleged jurisdiction.
The claimant has appealed the decision and it will be reviewed by the Buenos Aires Federal Civil and Commercial Court of Appeals.
For further information on this topic please contact Elizabeth Mireya Freidenberg at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991) or email ([email protected]).
Juan Llobera Bevilaqua, senior attorney, assisted in the preparation of this article.
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