Dear Colleague,
We set out below a short summary of a recent aviation law-related judgment rendered by the Small Claims Court in Petach Tikva, Israel, which might be of an interest to you. The judgement concerns the scope of liability of air carriers under the Israeli Aviation Services Law (Compensation and Assistance for Cancellation of Flight or Changes in its Conditions), 2012 ("ASL") for flights carried out by other carriers and reflects ongoing dilemmas that the Israeli courts are facing in dealing with the scope of liability which airlines bear due to developing and ongoing collaborations between airlines.
Small Claim No. 767-11-16 Dani Sarid et. al v. El-Al Israel Airlines Ltd . in the Small Claims Court in Petach Tikva
The plaintiffs purchased tickets from El-Al Israel Airlines Ltd. ("El-Al") for flights from Tel-Aviv to Las Vegas and back. The plaintiffs' flights comprised long-haul flights, including transatlantic segments, operated by El-AL and domestic flights, operated by Virgin America Airlines ("Virgin"). The plaintiffs’ return flight comprised a domestic flight from Las Vegas to Los Angeles (operated by Virgin) and a long-haul flight from Los Angeles to Tel-Aviv (operated by El-Al).
The first segment section of the plaintiffs’ return flight was delayed due to technical difficulties in Virgin's aircraft, causing the plaintiffs to miss their connecting flight to Tel-Aviv and compelling them to wait until the following day to fly back to Israel.
The plaintiffs contended, based on the provisions of the ASL, that since all the flight tickets were purchased from El-Al, El-Al should be considered the operator and organizer of all the flights, including the domestic flights operated by Virgin and that El-Al was, therefore, liable under the ASL for the delay and its consequences.
In addition, the plaintiffs contended that they had purchased priority seating on their missed flight from Los Angeles to Tel-Aviv but were allotted ordinary seats on the alternate flight and were entitled to compensation for this.
Judgment:
The court held that liability in accordance with the ASL is not dependent on a contractual relationship between the airline and its passengers stemming from the purchase of a ticket directly from the airline.
The court further noted that, while the seller of the tickets has contractual obligations in accordance with general contract law and liability under the Israeli Air Transport Law, 1980, the ASL applies only to flight operators and organizers.
Regarding the identity of the flight operator, the court held that, because this was not a code-share flight (where the marketing code-carrier may be found liable for the omissions of the operating carrier), the flight operator, in this case, was Virgin.
In determining the identity of the flight organizer, the court held that selling tickets on another airline's flights does not, in itself, make an airline a "flight organizer" even if it receives a commission for such sale. Furthermore, the flight tickets issued to the plaintiffs showed clearly that the flights were operated by two different airlines. Therefore, there was no misrepresentation regarding the identity of the flight organizer.
Finally, the court ruled that El-Al's actions in selling Virgin's flight tickets, only slightly resembles the practices of a "travel agent" and that El-Al does not bear the same duties as a travel agent. Therefore, the only liability El-Al had in this regard is in accordance with general contract law. Thus, the court rejected all the plaintiffs' claims based on the ASL (El-Al being the sole defendant)[1].
As for the plaintiffs' claims regarding priority seating, the court held that though, in the circumstances, upgrading the plaintiffs’ seats would have been commendable ethically, once the plaintiffs had missed the original flight, the airline was not obliged to provide them with priority seating on the alternative flight.
Though decisions of the Small Claims Courts do not constitute binding precedents or persuasive rulings, it is worth noting the hint in the judgement that, when the point arises in future proceedings, both of the airlines code-sharing on a flight will be regarded as flight operators for the purpose of the ASL.
If you have any questions or require further information on this judgement or the topics central to it, please do not hesitate to contact us.
Yours sincerely,
Hugh Kowarsky, Adv. Eyal Doron, Adv.
S. Horowitz & Co.
[1] The court further held that in view of the circumstances leading to the delay, i.e. a technical problems with Virgin's aircraft, El Al was is not liable to compensate the passengers for breach of contract, as it enjoyeds the protection of section 18(a) of the Contract Law (Remedies for Breach of Contract), – 1970, frustration of the contract.
