In a recent judgment, the Jerusalem Magistrates Court dismissed a claim for bodily injury caused to a passenger during a flight, as the claim had been filed more than two years after the plaintiff had reached his destination.(1)
On April 8 2014 the plaintiff flew from Thailand to Israel. While sitting in his seat, his elbow was hit by the food trolley, resulting in bodily injury. He filed a claim for compensation from El Al Airlines on June 9 2016.
El Al filed a motion for dismissal based on the Montreal Convention, arguing that the claim was time barred, as more than two years had elapsed since the plaintiff reached his destination. Although Thailand is not a party to the Montreal Convention, the plaintiff departed from and returned to Israel, which is a party to the convention. The fact that he stayed in Thailand for a period was of no significance.
The plaintiff argued that El Al's motion should be declined on the following grounds:
- The Montreal Convention applies only in cases where the places of both departure and destination are parties to the convention. As Thailand (which is not a party to the convention) was not a stopover for a connecting flight, but rather the place of destination in which the plaintiff stayed for two weeks, the Montreal Convention did not apply. The flight from Thailand to Israel was a separate flight, for which the place of departure was Thailand.
- The right of access to court is a fundamental one which can be set aside only in rare cases, of which this was not one.
- The aircraft constituted Israeli territory; therefore, the Israeli Tort Law should apply. Under this law, the limitation period is seven years.
Alternatively, the plaintiff argued that the parties had carried out negotiations towards a settlement and El Al had offered compensation to settle the claim. This act constituted an admission of liability which, pursuant to the local Limitation Law, prevented the limitation period from running. The main cause of delay in filing the claim was the fact that these settlement negotiations were ongoing.
The court accepted El Al's motion and dismissed the claim.
Applicability of Montreal Convention
The court applied the Montreal Convention and referred to Clause 3(a) of the Carriage by Air Law 1980, according to which the Montreal Convention applies where:
- the territory of the transportation is a country which is a party to the convention; and
- the transportation was agreed on a stop in the territory of another country.
According to the court, Clause 3(a) applies where the place of both departure and destination are in the same country, despite the passenger staying in another country between these points.
This applies to round-trip flights which include a stay in a country which is not party to the Montreal Convention, even if – in the eyes of the passenger – that country is the place of destination and that stay is the purpose of the flight. As a result, a country in which a plaintiff stays between flights is not the country of destination as required by the Carriage by Air Law.
The court concluded that – as far as international judgments applying the Montreal Convention are concerned – where tickets are purchased for flights that return to the place of departure, in the framework of the same contract of carriage, such flights are subject to the Montreal Convention – even if the passenger stayed in another country for a period.
The court referred to scholars Shawcross and Beaumont in Air Law,(2) in which they related to a similar situation:
"A return flight London-Thailand-London - the place of departure and the place of destination are both the United Kingdom… it is immaterial that Thailand is not a party of any of those treaties…
A break in the carriage or transhipment of, for example, a fortnight or a month, is irrelevant for the purpose of determining whether or not the carriage is international, provided that the agreement between the parties is a single agreement covering the whole of the journey in question."
The court emphasised the significance of a common interpretation of the Montreal Convention by all legal systems of the countries which are parties thereto.
Exclusive cause of action
The court stated that Article 29 of the Montreal Convention provides an exclusive cause of action, which is also set by Clause 10 of the Carriage by Air Law.
As the claim involved bodily injury sustained inside the aircraft, the claim was subject to only the Montreal Convention, not the Tort Law.
Extinguishment according to Montreal Convention
The court also referred to Article 35(I) of the Montreal Convention and Clause 15 of the Carriage by Air Law, which provide that the right to a claim will be extinguished if the claim is not filed within two years. This raised the question of whether the local Limitation Law applies alongside the limitation provisions set by the Montreal Convention.
In this case, the plaintiff argued that El Al had admitted liability, hence, the provision of Clause 9 of the Israeli Limitation Law should apply and the limitation period should start from the date of El Al's admission.
The court referred to the Supreme Court precedent in Taichner,(3) in which it was determined:
"In my opinion, despite that in principle, a specific provision relating to limitation should not completely or partially set aside the general provision of the Law, the appropriate interpretation of the Warsaw Convention and examination of the purposes which the Convention asked to accomplish, oblige the conclusion, that with regard to the period of limitation the two years limitation set by Article 29(1) of the Warsaw Convention is absolute and exhaustive and completely denies the applicability of the provisions which extend the limitation period according to the local general law."
According to the court, this precedent had been applied by various court instances over the years. It therefore denied the plaintiff's arguments and accepted El Al's motion for dismissal due to time-bar.
The court also indicated that conducting negotiations did not constitute admission of liability, as this is an undesirable result which may deter parties from ending disputes amicably. However, in view of the Supreme Court ruling in Taichner, even an admission cannot extend the limitation period and therefore there is no point in confirming the proceedings of this claim.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
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.
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