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26 February 2014
On January 22 2014 the Rishon LeZion Petty Claims Court handed down a judgment(1) in which it partially accepted the claim and awarded the plaintiff compensation for mental anguish, even though no direct losses were proven. In its decision, the court analysed Article 29 of the Montreal Convention.
The plaintiff, Shabtai Philosoph, made reservations on a flight operated by El Al Airlines from Israel to the United States and on a domestic flight in the United States operated by American Airlines.
The plaintiff stated that after he had boarded the aircraft for one of his flights within the United States and waited for two hours on the runway, the flight was cancelled. The plaintiff described the inconvenience he suffered as a result of this cancellation, including bodily discomfort due to the extreme effort he had made when running from the gate to the terminal.
The claim was filed against El Al, which argued that the plaintiff has no cause of action against it as the internal flight was operated by American Airlines, which was responsible for the flight cancellation. El Al sent a third-party notice against American Airlines.
American Airlines argued that the flight was cancelled due to weather conditions and that, extraordinarily, the decision to cancel the flight was made when the aircraft was already on the runway (American Airlines immediately arranged for an alternative flight the following day).
American Airlines further argued for the applicability of the Carriage by Air Law 1980 and the Montreal Convention. It referred to Article 19 of the convention, according to which a carrier is not liable for a delay if it is proven that the carrier took all necessary and reasonable measures to prevent the delay (or that it was not possible to take such measures).
American Airlines also referred to Article 29 of the convention, according to which punitive damage or compensation that is not restitution cannot be claimed.
The court agreed that the Montreal Convention applied to the flight. The court further stated that, based on Articles 19 and 22(1) of the convention, the maximum amount that could be awarded was $2,739 per person. The court further stated that in this case, the plaintiff failed to prove that he had sustained direct losses. According to the court's estimation, his losses amounted to $200. The court did not accept the plaintiff's argument in relation to his medical problems.
The case then focused on whether it is possible to award a plaintiff compensation for mental anguish or whether such a ruling is impossible under Article 29 of the convention. According to the court, district courts have held different opinions as to whether Article 29 allows compensation for mental anguish. The court referred to two previous judgments(2) that acknowledged the possibility of awarding compensation in appropriate cases for mental anguish.
In relation to the case at hand, the court agreed with the earlier judgments and stated that on certain occasions it is appropriate to award damages for mental anguish to passengers – for example, when declining such compensation would lead to unjustified enrichment of the carrier or would frustrate the object of the law and the convention.
The court further stated that damages for mental anguish will be justified mainly in cases where the carrier was negligent and acted with carelessness towards the passenger.
In the case at hand, the plaintiff and his wife sustained inconvenience at the airport due to the long distances they had to run between gates during the transfer from one flight to another (although the flight ultimately did not depart until the next day). The court stated that American Airlines could have made it easier for the plaintiff and his wife had it transferred them immediately to an appropriate hotel.
The court concluded that American Airlines was negligent and had failed to prove its argument that the flight was cancelled due to weather conditions.
The court declined the claim against El Al, but ordered American Airlines to pay NIS4,000.
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.
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