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11 October 2017
The Aviation Services Law (Compensation and Assistance for Flight Cancellation or Change of Conditions) 2012 defines a 'cancelled flight' as:
"Any one of the following, however, a change to the flight number will not be deemed to be a flight which has been cancelled:
1. A flight which did not take place
2. A flight which has taken off after a delay of at least eight hours from the time stipulated in the flight ticket or a delay which has been determined pursuant to Section 6(h)."
On August 25 2017 the Rehovot Magistrate Court ruled that a flight that had departed on time, but been forced to return to the point of departure following a five-hour flight due to technical malfunctions, was a cancelled flight in accordance with the Aviation Services Law.(1)
In February 2016 49 passengers who had boarded an El Al flight from Tel Aviv to New York filed a compensation claim. Five hours after departure, the captain had informed the passengers that due to a technical malfunction discovered in one of the aircraft's engines, the aircraft would land in London for repairs and then continue on to New York.
Following an additional 30 minutes, the captain informed the passengers that having considered the pros and cons, the aircraft would return to Tel Aviv for repairs. The aircraft landed in Tel Aviv after more than 10 hours in the air.
El Al arranged for assistance services for passengers, including finding them alternative flights to New York with a delay of approximately 24 hours from their scheduled arrival time. The plaintiffs argued that they were entitled to compensation under the Aviation Services Law. The parties agreed that as a preliminary issue, the court would decide whether the Aviation Services Law applied.
The plaintiffs argued that the flight should be considered a cancelled flight, as it did not take the passengers to their destination on time. They referred to the European High Court of Justice's interpretation in Aurora Sousa Rodrigues v Air France SA (C-83/10), in which a flight that had departed and then been forced to return to the port of departure was considered a cancelled flight.
The legislature's aim when defining a 'cancelled flight' is clear and unambiguous. When a flight departs on time, it cannot be considered a "flight that did not take place", as the yardstick for the definition is the take-off time and not the arrival time at the scheduled destination.
El Al rejected the plaintiffs' reference to the European High Court of Justice interpretation, stating that Israeli law and EU regulations are similar, but not identical. The main difference in the definition of a cancelled flight is that according to Israeli law, a 'cancelled flight' is a flight which departs with a delay of at least eight hours – a definition which does not exist under EU regulations. This indicates that for the Israeli legislature, the departure time is the relevant basis for deciding what constitutes a cancelled flight.
El Al further argued that once a flight departs on time, the carrier's control over the time of landing is reduced, as delays in landing can result from various reasons which are out of the carrier's control (eg, weather conditions, security issues, air traffic control orders or an unexpected technical malfunction). It is therefore unreasonable to impose such a heavy burden on the carrier when it has made all efforts to ensure that a flight has departed on time.
The parties differed in their views of the definition of a cancelled flight. Although there is no binding precedent, the courts have – in lower-instance decisions concerning the Aviation Services Law – applied the law in cases where the circumstances did not meet the literal interpretation of the law regarding cancelled flights.
For example, in Korkos v Turkish Airlines, the court addressed a case involving a flight from Israel to the United States with a stopover in Istanbul.(2) The flight from Israel to Istanbul had been delayed by one hour and 20 minutes. As a result, the passengers had missed their connecting flight and had had to wait more than eight hours to continue their journey. The court held that the term 'cancelled flight' should be broadly interpreted and ruled that in such a situation it is considered a cancelled flight.
Further, in Sharir v Alitalia, the court held that a delay of less than eight hours which had resulted in passengers missing a connecting flight and waiting more than eight hours for an alternative flight was also a cancelled flight.(3)
In the present case, the court resolved that the circumstances required an interpretation which accomplished the law's objectives and basic principles.
According to the court, it can also be understood from the explanations given by the legislature that it aimed to compensate passengers for a disruption to their flight schedule in cases where they have to take a different schedule from that planned due to reasons which are out of their control and result in a substantial delay to their arrival.
Further, there is no basis to distinguish between a passenger who:
The court stated that El Al's interpretation – according to which the time of departure is the only relevant element in establishing whether a flight has been cancelled – not only deviates from the spirit of the law, but also contravenes common sense. The law aims to ensure that passengers will travel from Point A to Point B as closely as possible to the original schedule and, if not, that they will be compensated subject to the conditions provided by law.
The court also referred to Clause 6(b) of the law, which entitles operators to reduce the amount of compensation in the case of a cancelled flight when an alternative flight was accepted by passengers and they reached their final destination with a delay of between two and four hours, depending on the flight distance (ie, it shows that the legislature considered the arrival time at the destination as a relevant factor when calculating the compensation due to passengers).
The court considered the El Al flight at the centre of the complaint to have been cancelled. The decision was a partial judgment relating only to this question and an additional court hearing has been scheduled for October 2017.
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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