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08 October 2014
On September 1 2014 the Magistrates Court of Kiryat Gat handed down a judgment in Svetlana Podvinski v EL AL Airlines.(1) The court ordered EL AL to compensate a passenger who had refused to pay for 9 kilograms (kg) of overweight baggage and, as a result, remained in Belarus until she found an alternative flight one week later.
On September 16 2008 the plaintiff planned to fly from Minsk to Israel. Her baggage was 9kg overweight and therefore EL AL requested her to pay €54 before she could board the aircraft.
The plaintiff argued that she had advised EL AL's representative that she had only $100 and that she was willing to pay this amount for the excess weight. She further argued that EL AL's representative had refused to accept payment in US dollars and suggested that she borrow money from other passengers. When she refused, EL AL sold her ticket to another passenger.
EL AL argued that the plaintiff had refused to pay anything at all for the excess weight and offered to pay only when she realised that she would not be allowed to board the flight. At this point, the flight was already closed and her seat had been sold to another passenger. The plaintiff finally flew to Israel ne week later.
The plaintiff argued that she had suffered mental injuries as a result of these events and filed suit against EL AL and its representative.
EL AL argued that the Warsaw Convention applied in this case, and that the plaintiff thus was not entitled to compensation – first given the absence of an accident and second as mental injury is not considered compensable under the convention.
The court concluded that the convention was not applicable in this case, since the contract for carriage between the plaintiff and EL AL had been cancelled, and referred to previous judgments which distinguished between a delay in flight – where the convention applies – and a case where the contract of carriage is not fulfilled, where the convention does not apply.(2)
The court mentioned that in the case at hand, although the plaintiff had been in the process of checking in, the events which followed led to cancellation of the contract of carriage by EL AL. The plaintiff's baggage, which had been sent to the aircraft, was returned to her.
Once the court concluded that the convention did not apply in this case, it examined the case according to regular tort law.
The court found that EL AL was negligent towards the plaintiff, but attributed 50% contributory negligence to the plaintiff.
The court accepted EL AL's version of events – that the plaintiff had refused to pay for the excess weight and agreed to do so only after the flight had closed and her seat had been sold to another passenger.
The court rejected the argument that EL AL had refused to accept US dollars. However, it did accept that after the flight's departure, the airport had closed and the plaintiff had been stranded alone outside.
The court examined the plaintiff's alleged damages – loss of earnings, pain and suffering, medical and third-party assistance for the future – and ordered EL AL to pay IS32,000 in damages.
Damages were calculated on the basis of 25% temporary medical disability until January 2012 and 10% temporary mental disability until January 2019.
The claim against EL AL's representative was dismissed. The court accepted that he had acted as EL AL's agent and hence bore no personal liability.
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). The Levitan, Sharon & Co website can be accessed at www.israelinsurancelaw.com.
(2) CF (Haifa) 644-2-10-08, Nachazon v EL AL. The plaintiff missed her flight due to a delay in an internal flight from Siater to New York. The plaintiff flew to Israel two days later; hence, this was a delay to which the convention applied.
CF 5998/01 (Jerusalem), Arkia v General Health Services – the plaintiff (a minor) was not flown on an alternative flight; hence, this was not considered a delay according to Article 19, but rather a cancellation of the contract of carriage.
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