Dear Colleague,
We set out below for your information a short summary of a recent aviation law-related judgment rendered by the Israeli court, which could be of an interest to you:
Class Action no. 24969-06-15 Levin v. Israir Airlines & Tourism Ltd. in the Central (Lod) District Court.
An application to file a class action,[1] based on section 7(a) of the Israeli Aviation Services Law (Compensation and Assistance for Cancellation of Flight or Changes in its Conditions), 2012 ("the ASL"), against Israir Airlines & Tourism ("Israir"), claiming that Israir systematically reneges on its obligation to provide passengers with food and beverages ("F&B") in cases where Israir flights are delayed for over two hours.
The plaintiff was on board a flight from Paris to Tel-Aviv which was delayed for two and a half hours, and was denied F&B during the wait.
Israir argued:
- According to section 19 of the Montreal Convention, the plaintiff is not entitled to any compensation for the said delay.
- The right to receive F&B does not apply to low-cost or "charter" flights, because these flights carry an inherent risk of flight delay, of which passengers are aware and accept.
- Initially the delay in the flight was expected to last less than two hours. When it became apparent that the flight would be delayed for more than two hours, Israir made an informed decision not to hand out F&B vouchers to passengers to avoid any further delays.
The District Court Judgment:
The Court rejected Israir's arguments, stating that:
- Because the ASL was enacted after Israel became party to the Montreal Convention, it is a lex specialis, so that the provisions of the ASL prevail over corresponding provisions of the Montreal Convention and, therefore, if the ASL confers the plaintiff with the right to receive F&B, such right cannot be denied by the Montreal Convention.
- According to the ASL, a passenger on an international flight to or from Israel is entitled to receive F&B, in the event that his flight is delayed for more than two hours. The ASL does not exclude low-cost or "charter" flights.
- The right to receive F&B imposes an absolute duty on the aircraft carrier in the event of a flight delay of over two hours. The ASL does not address the underlying reasons for the delay, nor the question of liability. The duty is absolute, so that regardless of the underlying reasons for the delay – if the flight is indeed delayed for more than two hours, the passengers are entitled to receive F&B without question.
Although the Court did not determine the scope of F&B required to be provided, it stated that Israir's internal protocol (which was presented to the Court) - showing that for flight delays of between two–four hours, Israir provides vouchers for coffee and cake, and that for delays of four hours and more, it provides a full meal - seems appropriate.
Although the plaintiff's individual claim was, prima facie, just, the Court denied the application for class action certification, finding that the application had failed to provide any evidentiary basis for such certification by not demonstrating systematic behaviour on the part of Israir.
The court further indicated that in view of the relatively small damage caused to all of the passengers on the specific flight, and the fact that it was not proved that Israir's behavior was consistent but rather a sporadic violation of the law, the suitable proceedings in this type of cases is not a class action but rather a claim for exemplary damages (under sec. 11 of the ASL), which allows the court to award the passengers up to €2,400 per claim, without proving damages.
If you have any questions or require further information on this judgment or the issues raised in it, please do not hesitate to contact us.
Yours sincerely,
Hugh Kowarsky, Adv. Eyal Doron, Adv.
S. Horowitz & Co.
[1] In Israel, in order to bring a class action, a plaintiff must first file an application with the court requesting the court to certify the plaintiff's individual claim as a class action and to identify him (or her) as the appropriate plaintiff for the class action. Only after the court grants the said request, does the personal action become a class action.
