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11 June 2014
The plaintiff filed a claim for financial damages allegedly sustained as a result of a delay in his flight, a delay in providing his luggage and damage to his luggage during a flight operated by Iberia Airlines between September 11 and 15 2011.
As the claim was filed on December 2 2013 (ie, more than two years after the date of the damage), the defendant argued that the claim was time barred.
The plaintiff argued that the defendant's omissions were so obvious that it had a moral and legal duty to compensate him. In addition, the plaintiff argued that the General Limitation Law applicable in Israel should not be ignored and, at least, that the defendant bore contributory blame for not specifying the short limitation period on the flight ticket.
The court accepted the defendant's argument and dismissed the claim.
The court referred to Clause 15 of the Carriage by Air Law (1980), according to which: "Notwithstanding anything provided in any other law, the period for the loss of right to claim damages under this law will be the period set by the convention".
The court also referred to Clause 27 of the Law of Limitation (1958), according to which: "This law does not, unless otherwise expressly provided therein, affect any period of prescription, set for a particular matter in any other law."
Based on the above, the court concluded that the Carriage by Air Law applied to the case, rather than the General Limitation Law.
The court referred to the Supreme Court decision in Teichner v Air France(3) and Dadon v Air France,(4) in which it was decided that the General Limitation Law should not apply alongside the limitation period according to the convention, and that the provisions extending the limitation period (eg, unawareness of cause of action) set out in the General Limitation Law do not extend the limitation period for transportation claims under the Carriage by Air Law.
The court also addressed the plaintiff's argument regarding his ticket. The defendant argued that the shortened limitation period was stated on the company's website. The court also referred to the convention, according to which the fact that the limitation period is not specified on a ticket does not deny the applicability of the convention, and denied the plaintiff's argument in this respect.
The court recommended that the defendant highlight the shortened limitation period on its tickets in bold letters in future.
On July 5 2009 the plaintiff purchased two flight tickets (for himself and his son) from Israel to Munich.
On the date of the flight (July 18 2009), the plaintiff arrived at the airport with his son and discovered that his name was not listed on the flight manifest.
The defendant acted to resolve the matter, and arranged for the plaintiff and his son to fly via an alternative flight to Stuttgart and then take a train to Munich. The defendant paid the cost of the train tickets.
The plaintiff and his son accepted the defendant's offer. However, instead of taking the train to Munich, they mistakenly took a train to another destination in Germany, which disrupted their plans. The plaintiff argued that as a result of the defendant's conduct, he suffered losses of IS 28,500 (approximately $8,200 according to the current rate of exchange).
The claim was filed on August 5 2013.
The defendant filed a motion to dismiss the claim, based on the argument of extinguishment of the right of claim.
In response, the plaintiff argued that the Warsaw Convention did not apply in this case. However, he provided no explanation to support this argument. The plaintiff further argued that the General Limitation Law should apply, according to which the limitation period for filing a claim is seven years.
The court accepted the defendant's motion and dismissed the claim. It referred to Clause 2 of the Carriage by Air Law which applies the carriage convention to a carriage such as that in question, and to Clause 10 of the Carriage Law, which provides that the claim under the law is exclusive.
The court stated that, as previously decided by the Israeli courts, the two-year limitation period(5) is absolute and cannot be changed based on the circumstances detailed in the General Limitation Law, as this may alter the limitation period for filing claims.
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 firstname.lastname@example.org). The Levitan, Sharon & Co website can be accessed atwww.israelinsurancelaw.com. ]
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