Dear Colleague,
We set out below for your information a short summary of a recent aviation law-related judgment rendered by the Small Claims Court in Tel-Aviv, concerning the application, in proceedings before the Israeli courts, of European Regulation (EC) No. 261/2004 ("the EU Regulation") and the provisions thereof relating to the payment of compensation to passengers:
Small Claim no. 45500-01-17 Oleg Shapiro v. Brussels Airlines in the Small Claims Court in Tel-Aviv
The plaintiff was scheduled to fly from Tel-Aviv to Berlin, via Brussels, on board a Brussels Airlines flight. Upon arriving at the airport, the plaintiff was informed that due to overbooking he would not be able to board the aircraft and was offered tickets for an alternative flight that was scheduled to depart 12 hour later.
The plaintiff contended in the Statement of Claim that because the flight had been delayed for over 8 hours, it should be considered a cancelled flight under the Israeli Aviation Services Law (Compensation and Assistance for Cancellation of Flight or Changes in its Conditions), 2012 ("the ASL"), and, accordingly, that he was entitled to compensation under the ASL. The plaintiff contended further that while waiting for the alternative flight, he was neither offered, nor did he receive, any ground assistance, i.e., he was not offered or given food or beverages or hotel accommodation of whatsoever nature, and was therefore entitle to additional compensation under the ASL.
Brussels Airlines ("the Airline") argued that the plaintiff had received compensation under the EU Regulation in the sum of €436: €400 for cancellation of the flight and €36 – as reimbursement of expenses and that, accordingly, in terms of Section 20 of the ASL, he was not entitled to further compensation under the ASL on the same grounds[1]. The Airline argued further that since the plaintiff resides in Ramat Gan (a city near the airport), there was no need to provide him with any ground assistance.
The Judgment:
In dealing with the Airline's argument based on Section 20 of the ASL, the court held that in order for it to accept any foreign legislation relied upon or cited by a party to the lawsuit, such as the EU Regulation, it was necessary, in accordance with the Israeli Evidence Ordinance, that such legislation be proved by a witness expert in the relevant foreign law. Because the Airline had failed to prove the EU Regulation as required, the EU Regulation had no application and the claim was governed exclusively by the ASL[2].
According to the ASL, the amount of compensation to which the plaintiff was entitled to, due to the cancellation was NIS 2,050 (approximately €478). Since there was no dispute that the plaintiff had received payment from the Airline as detailed above, the Court ordered the Airline to compensate the plaintiff for the balance of the amount of compensation to which he was entitled under the ASL[3].
The Court held that the plaintiff's contention that, at the relevant time, he did not reside in Ramat Gan and, thus, was forced to take a taxi to go to a friend's house for the night, was credible. The Court also held that it was even more plausible that the plaintiff neither received, nor was offered, any ground assistance and for that reason too he was entitled to receive NIS 100 for food and beverages, NIS 280 for taxi fare and NIS 500 for hotel accommodation. Further, the court held that because the plaintiff was not offered any ground assistance, the Airline was liable to pay the plaintiff an additional NIS 2,500 as exemplary damages. It is clear from the judgment, that the Court was not satisfied with the quality of evidence provided by the Airline.
Though decisions of the Small Claims Courts do not constitute binding precedents or persuasive rulings, the judgement may indicate a potential trend or prevailing opinion among the Small Claims Courts’ judges (particularly, regarding the required conditions for application of the EU Regulation) and it will be interesting to see if other judges in the Small Claims Courts will follow.
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] Section 20 of the ASL provides that a passenger who has received a benefit under foreign law with respect to circumstances establishing a right to a benefit under the ASL, shall not be entitled to benefits under the ASL of the kind received under the foreign law.
[2] The Evidence Ordinance indeed requires foreign law to be proved before the Israeli court by an expert witness, but the question is whether proof of the EU Regulation was necessary in the case in question or whether it should not have been sufficient to prove that compensation had been paid under that Regulation, bearing in mind that the Small Claims Courts have a discretion to deviate from the general rules of evidence
[3] If the Airline's argument pursuant to Section 20 of the ASL had been accepted, the result would have been that the plaintiff would have not been entitled to any amount with respect to cancellation compensation beyond that paid to the plaintiff under the EU Regulation
