Adv. Peggy Sharon Adv. Keren Marco
Introduction:
The Aviation Services Law (Compensation and Assistance for Flight Cancellation or Change of Conditions), 2012 (ASL), defines a “cancelled flight” as:
“Any one of the following, however, a change to the flight number will not be deemed to be a flight which has been cancelled:
A flight which did not take place
- A flight which has taken off after a delay of at least eight hours from the time stipulated in the flight ticket or a delay which has been determined pursuant to Section 6(h)”
On 25th August 2017 the Rehovot Magistrate Court ruled that a flight that had departed on time but had to return to the point of departure following a 5 hour flight due to technical malfunction, is considered a “cancelled flight” as defined in the ASL[1]
The Facts:
In February 2016, a claim was filed by 49 Plaintiffs, passengers of El Al flight from Tel Aviv to New York (hereinafter: the flight).
Five hours after departure, the captain informed the passengers that due to a technical malfunction discovered in one of the four engines of the aircraft, it was decided to land the aircraft in London for repair and then continue to New York.
After an additional 30 minutes, the captain informed the passengers that after considering all the pros and cons, it was decided to return the aircraft to Tel Aviv for repair.
The aircraft landed in Tel Aviv after being more than 10 hours in the air.
El Al arranged for assistance services for the passengers including re-routing for alternative flight following which they arrived to New York with a delay of about 24 hours.
Plaintiffs argued that they are entitled to monetary compensation in accordance to the provisions of the ASL.
It was agreed by the parties that as a preliminary issue, the Court would decide whether the ASL applies to this case.
Plaintiffs’ Arguments:
The circumstances of this case lead to the conclusion that the flight should be considered a “cancelled flight” as it did not take the passengers to their destination on time.
Plaintiffs referred to the interpretation given to the European Regulations as made by the European High Court of Justice in the matter of C-83/10 Aurora Sousa Rodrigues & Others v. Air France SA, in which it was held that a flight which had departed and was forced to return to the port of departure will be considered as a “cancelled flight”.
El Al’s Arguments:
The legislator’s intention when defining what is considered a “cancelled flight” is very clear and unambiguous. When the flight departs on time, it cannot be considered a “flight that did not take place”, as the yardstick for the definition is the time of take off and not the time of arrival at the destination.
El Al declined the reference made by Plaintiffs to the European Regulations, stating that the Israeli Law and the European Regulations are similar but not identical. The main difference in the definition of “cancelled flight” between the two provisions is that according to the Israeli Law, a cancelled flight is also a flight which departed with a delay of more than 8 hours, a definition which does not exist in the European Regulations. This indicates the Israeli legislator’s intention to consider the departure time as the relevant basis.
El Al further argued that once the flight departs on time, the carrier’s control over the time of landing is reduced as delays in landing can result from various reasons which are out of the carrier’s control. For example, weather conditions, security issues, air traffic control or unexpected technical malfunction. It is therefore unreasonable to impose such a heavy burden on the carrier where it made all efforts to ensure that the flight would depart on time.
The Judgement:
The parties differ on the relevant point in time for the purpose of the law’s definition of “cancelled flight”.
Although there is no binding precedent on this question, however in lower instances dealing with the ASL, the Court applied the ASL also in cases where the circumstances did not meet the literal interpretation of the law’s provisions.
For example, in the matter of Korkos v. Turkish Airlines[2] the Court dealt with a case involving a flight from Israel to the US with a stopover in Istanbul. The flight from Israel to Istanbul was delayed by one hour and 20 minutes however as a result the passengers missed their connecting flight and had to wait more than 8 hours to continue. The court held that the term “cancelled flight” should be broadly interpreted and ruled that in such a situation it is considered as a cancelled flight.
Also, in the matter of Sharir v. Alitalia[3] the Court held that a delay of less than 8 hours which resulted in missing a connecting flight and waiting for more than 8 hours for the alternative flight – this is also considered a cancelled flight.
In the current case the Court reached the conclusion that the circumstances require an interpretation which accomplishes the objectives of the law and its basic principles.
According to the judge, it can also be understood from the explanations given to the Bill that the legislator’s intention was to compensate the passengers for disruption of their flight schedule in cases where passengers had to fly on a different schedule from the one planned, due to reasons which were out of the passengers’ control with a substantial delay of their arrival.
There is no basis to distinguish between a passenger who had to wait more than 10 hours due to a delay in departure – and a passenger who was in the air for 10 hours and then had to return to the place of departure (which occurred in this case).
The Court stated that El Al’s interpretation, according to which the time of departure is the only relevant element ignoring the time of actual arrival at the final destination not only deviates from the spirit of the law, but also does not correspond with common sense. The object of the law is to ensure that passengers will travel from Point A to point B as closely as possible to the original schedule and if not, they will be compensated subject to the conditions provided by the law.
The Court also referred to the provision of Clause 6(b) which entitles the operator to reduce the monetary compensation in case of a canceled flight when the alternative flight which was accepted by the passenger reached to the final destination with a delay of between 2 – 4 hours, depending on the distance of the flight i.e. it shows that the legislator considered the time of arrival at the destination as being a relevant factor when calculating the compensation due to the passenger.
Conclusion:
The Court considered the above flight as a “cancelled flight”. The decision was given as partial judgement relating only to this question and an additional court hearing was scheduled for October 2017.
[1] C.F (Rehovot) 1040-02-16 David Segal and others v. El Al Airlines
[2] F.P. 1460-12-15 (Alco) Korkos v. Turkish Airlines – dated 21 November 2016
[3] S.C. (Tel Aviv) 62934-03-17 Sharir v. Alitalia
