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28 November 2018
In September 2018 the Tel Aviv Small Claims Court declined a passenger's claim for compensation against Qantas and Worldwide Travel and Tourism Ltd, concluding that as the flight in question was a domestic flight in New Zealand, Israeli law did not apply.(1)
The plaintiff purchased flights from Worldwide Travel and Tourism Ltd for flights that were operated in March 2015.
The travel agency booked flights from several airlines for the plaintiff's journey with Tel Aviv as the final destination.
The first flight was a domestic flight within New Zealand, from Christchurch to Auckland, operated by Qantas. The plaintiff was subsequently due to fly with a different airline (Korean Airlines) from Auckland to Tel Aviv via Seoul.
Upon his arrival at Christchurch Airport, the plaintiff was notified by Qantas that the flight would be delayed and was offered the choice of an alternative flight or a refund. The plaintiff decided to approach Worldwide Travel and Tourism Ltd, which booked him alternative flights to Israel.
The plaintiff argued that since the delay had caused him to miss his connecting flights to Israel, it should be considered a 'cancelled flight' under the Israeli Aviation Services Law (Compensation and Assistance for Cancellation of Flight or Change of Conditions) 2012 (ASL).
He therefore argued that he was entitled to fixed compensation of NIS3,080 (based on the distance between New Zealand and Israel). In addition, he claimed that he was entitled to a reimbursement for the alternative flight that he had purchased and additional compensation for mental anguish.
The plaintiff also argued that Qantas was liable as the flight operator and could not be exempt from paying compensation, as the flight had been delayed due to a technical malfunction.
Further, the plaintiff argued that:
Qantas highlighted the fact that Worldwide Travel and Tourism Ltd had booked the flights separately: one flight was booked with Qantas (the flight from Christchurch to Auckland) and a separate ticket was booked with Korean Airlines for flights from Auckland to Tel Aviv.
Hence, the flight booked with Qantas was only for the flight within New Zealand and its liability towards the plaintiff was only for that flight.
In addition, since the flight in question was a domestic flight within New Zealand, Qantas argued that Israeli law did not apply. Therefore, the plaintiff had to support his claim with an expert's opinion, to prove the relevant law as a matter of fact. The conditions of carriage were subject to New Zealand law.
Further, according to the ASL, a 'flight operator' is defined as an operator which operates flights from and to Israel. Qantas contended that since the flight in question was neither to nor from Israel the ASL did not apply.
Given that the ASL did not apply, the flight was bound to the contract of carriage, according to which, the right to a claim against Qantas expired two years after the date of the flight. Since more than two years had elapsed between the date of the delayed flight and the filing of the claim, Qantas argued that it should be dismissed.
Qantas further stated that even if the ASL had applied, the flight was only delayed by approximately six hours and therefore would not have been considered a cancelled flight under the ASL.
Worldwide Travel and Tourism Ltd argued that it bore no liability, as it was only the entity which had booked the flights and that the plaintiff had confirmed the reservation and agreed to its conditions.
The Tel Aviv Small Claims Court dismissed the claim against both Qantas and Worldwide Travel and Tourism Ltd. The court stated that a 'flight operator' is defined in Clause 1 of the ASL as an operator that operates flights to and from Israel. Therefore, the law does not apply when connecting flights to Israel are operated by a different airline.
Due to the above, the court concluded that it was not authorised to deal with a claim against a foreign aviation company that operated a domestic flight in New Zealand without a direct connecting flight to Israel.
The court referred to a previous Tel Aviv Small Claims Court decision which had also declined a claim filed in relation to a domestic flight in the United States on the basis that the claim was subject to the US law which had not been proven by way of an expert opinion.(2)
The court also determined that Worldwide Travel and Tourism Ltd was not liable. Since the delay lasted approximately six hours, the plaintiff would have missed any subsequent flights booked with a reasonable time gap and therefore an explanation from the travel agency would have made no difference. In addition, the flight would not have been considered a cancelled flight under the ASL, as it had been delayed for less than eight hours.
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 (firstname.lastname@example.org or email@example.com). The Levitan, Sharon & Co website can be accessed at www.israelinsurancelaw.com.
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