On March 29 2015 the Tel Aviv Magistrates Court declined a motion to dismiss a claim (with prejudice) filed against the Israel Airport Authority for bodily injury caused to a plaintiff while disembarking an aircraft. The court analysed whether the exclusive claim provision of the Montreal Convention prevented an injured party from filing a claim against other third parties.(1)
On May 12 2013 the plaintiff flew from London to Tel Aviv on an EL AL flight. While disembarking the aircraft and passing through the jet bridge which connected the aircraft to the terminal, the plaintiff bumped into a metal object and fell. As a result, the plaintiff lost consciousness. She subsequently submitted a claim against the Israel Airport Authority.
The authority argued for the applicability of the Montreal Convention, which provides for an exclusive right to claim against the carrier. As a result, the plaintiff was prevented from filing a claim against any other party which was not the carrier (eg, the Israel Airport Authority). Because the plaintiff argued for damages caused while disembarking the aircraft, her right was limited to a claim against the carrier. The authority filed a motion to dismiss the claim with prejudice.
Conversely, the plaintiff argued that the exclusive claim applied only against the carrier; hence, such a claim could not be based on any other cause of action, but this did not prevent the plaintiff from filing a tort claim against another party such as the Israel Airport Authority.
Anyone injured while on board, embarking or disembarking an aircraft is entitled to file a claim against the carrier, which will be subject to the Montreal Convention and the Carriage by Air Law 1980.
Clause 10 of the Carriage by Air Law provides as follows:
"Exemption of Liability
The liability of the carrier, its employees and agents under this Law, for damage, including damage resulting from the death of a passenger, will take the place of its liability under any other Law, and a claim for compensation for the same damage, other than under this Law, will not be heard, whether the cause thereof is an agreement, a civil tort, or any other cause whoever the claimant may be."
The court analysed whether the exclusive claim provision of the Montreal Convention and Carriage by Air Law rules out only the injured party's right to base his or her claim against the carrier on another cause of action outside the scope of the convention, or whether it also rules out the right to file a claim against other third parties. This question has yet to be decided by the Supreme Court.
The court referred to two previous judgments handed down by the lower courts, in which it was decided that the exclusive claim rules out the right to file a claim against other third parties.(2) Further, the court referred to the district court decision in Padani v IAA, in which the first-instance court decided that Clause 10 of the Carriage by Air Law rules out the right of an injured party to file a claim against a third party.(3) An appeal to the district court was filed, which decided to return the file to the lower court to discuss the issue further.
Without giving an opinion, the district court mentioned that the following considerations should be taken into account in interpreting the exclusive claim provision:
- The introduction of Clause 10 of the Carriage By Air Law does not refer to the injured party's causes of action, but rather to the carrier's liability.
- The heading of the above clause is "Exemption of liability", as opposed to other laws in which similar provisions are entitled "Exclusive claim".
- Article 25 of the Montreal Convention provides an exception to its exemption of liability that relates to the carrier only and does not mention third parties.
- In Tychner v Air France the Supreme Court decided that the Montreal Convention aims to protect the air carrier and establish legal uniformity in national arrangements that apply to air transportation.(4) There is a question of whether this aim supports the interpretation that the exclusive claim provision denies the injured party's right to file a claim against other third parties which are not the carrier.
The court in the case at hand stated that, under the Montreal Convention and the Carriage by Air Law, the carrier had strict liability. However, according to the convention a carrier is not liable – beyond a certain amount – if it is proven that the damage was caused solely due to third-party negligence. Hence, the convention and the law acknowledge a situation whereby there is no justification to exempt a third party.
The court concluded that the above points, together with the district court's reasoning in Padani, may support the argument that Clause 10 of the Carriage by Air Law does not rule out a claim by an injured party against other third parties based on causes of actions outside the scope of the convention.
The court noted that, according to Supreme Court precedents, a motion to dismiss a claim at an early stage will be accepted only in extreme and exceptional cases, in which it is clear that – even if the plaintiff proves its argument in full – it will not be entitled to any relief. The court added that the case before it was not one of those cases.
The court did not accept the Israel Airport Authority's motion. Therefore, the claim will be dealt with in court and the plaintiff must prove negligence on the part of the Israel Airport Authority, which would have not been necessary had she sued the carrier.
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.
Endnotes
(1) Goldrey v Israel Airport Authority (CF 5426-05-14).
(2) El Al Airlines v Gat Bus Services (CF 37654/89) and CFf (Haifa) 8938/01 (2005) Mois v IAA.
(3) CA (Jerusalem) 9366/06 (2006).
(4) A/H 36/84 PDI (41)(1) 589.
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