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This update concerns recent significant court decisions that have important consequences in the area of aviation law.
Claims of Israeli citizens against Arkia Israeli Airlines Ltd. in European Courts
Following our February update on the decision in 6081894/CV EXPL 17-5626, in which the Court accepted Arkia’s position and rejected the three claims for the reason that a court in the Netherlands does not have jurisdiction to adjudicate claims filed by Israeli passengers against an Israeli company that does not have a branch office in the Netherlands, the District Court expanded its above mentioned finding in the framework of the claim Loon Management International B.V. v. Arkia. In this claim, which our firm handled in cooperation with the HFW law firm, the District Court established that a Dutch court does not have jurisdiction to hear the matter and it ordered that the Plaintiffs bear the legal costs that Arkia expended in defending the action.
This was a claim brought by more than 20 Israeli plaintiffs who sought to apply the provisions of Article 33 of the Montreal Convention to the case. Article 33 provides: “An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.” The District Court in Amsterdam rejected the Plaintiffs’ argument since it found that under the circumstances of the claim, Arkia’s principal place of business and its destination were not the Netherlands (but Israel), thus a court in the Netherlands does not have jurisdiction to hear the matter.
In its decision, the Dutch Court also found that indeed section 6 of the Dutch Code of Civil Procedure is applicable to consumer contracts; however when it cannot be proven that the Plaintiff reside in the Netherlands, then the section will not apply.
The Court also established that although section 9 of the Dutch Code of Civil Procedure provides that where it not possible to carry out the legal proceedings outside of the Netherlands, then the courts in the Netherlands will have jurisdiction – in this case, Loon Management International B.V. did not prove that the proceedings in Israel could not be carried out, and therefore, the argument on this point was also rejected and the Plaintiffs were ordered to pay Arkia’s legal costs.
European Court of Justice decision on rules concerning damage to baggage complaints under the Montreal Convention
The European Court of Justice (hereinafter: the “ECJ“) accepted the claim of a passenger who filed a complaint by telephone (without the submission of a written complaint) against Finnair regarding damage caused to his baggage. The airline indemnified the passenger, through its insurance company, which subsequently brought a subrogation claim against Finnair.
Finnair argues that the passenger did not satisfy the requirements of article 31 of the Montreal Convention which establishes that a complaint notice on damage caused to baggage must be done in writing within the time period set in the Convention. The Court in Helsinki accepted the airline’s position following which the insurance company appealed to the Helsinki Court of Appeal which referred the matter to the ECJ.
The ECJ accepted the insurance company’s argument and held that the word “in writing” in article 31 of the Montreal Convention should be interpreted to include both hand-written or printed complaints as well as information that was recorded electronically following a telephone conversation with the airline’s customer service representative.
European Court of Justice decision on flight crew’s “wildcat strike”
In the ECJ’s decision in the matter of Helga Krüsemann and Others v. TUIfly GmbH, the Court dealt with a claim that involved a “wildcat strike” taken by the flight crew of an airline which resulted in the delay or cancellation of flights.
The circumstances of the matter related to a notice that TUIfly’s management sent in September 2016 on structural changes within the Company. Following this notice, the flight crew gave notice on its absence due to “sick leave” for a period of around one week. As a result of this “wildcat strike” many flights experienced delays and/or cancellations.
In its decision, the ECJ found that under European Regulation (EC) No 261/2004 a spontaneous absence of a significant part of the flight crew, a “wildcat strike”, which is caused by a notice of the Company’s management on a restructuring change, does not amount to “extraordinary circumstances” under the Regulation.
The ECJ held that a restructuring change is part of the normal management of a company, that airlines may have to contend with disagreements and/or employee disputes, and such risk should be considered to be part of the normal activity of an airline. The Court also held that when a “wildcat strike” is not initiated by a trade union, no distinction will be made regarding the matter of compensation because the right to compensation is not dependent on specific legislation of any country, and this in order to ensure the protection of passengers from the exemption established in Regulation 261.
Leave for Small Claims Appeal 45063-02-18 Blue Air et al. v. Damski et al. – plane’s technical fault amount to an extraordinary circumstance
The District Court in Tel Aviv-Yafo accepted Blue Air’s legal arguments made in the framework of LSCA 45063-02-18 Blue Air et al. v. Damski et al. (not yet published), and it established that indeed a narrow interpretation should be given to the exemption granted to the flight operator under section 6(e)(1) of the Aviation Services Law from its obligation to compensate a passenger whose flight was cancelled, however – this provision should not be void of all meaning and the burden imposed on the flight operator should not be such that it is impossible to satisfy.
Accordingly, the Honorable Court granted leave for appeal from the decision of the Small Claims Court in Herzliya (the Hon. J. Amiad Rath) in three consolidated claims and found that the lower court erred when it held that extraordinary circumstances were not made out under section 6(e)(1) of the Law because according to the case law, a technical fault cannot establish extraordinary circumstances. The District Court held that there are certainly cases in which it was established that technical faults on aircraft amounted to extraordinary circumstances that resulted in the exemption from the requirement under the Law to provide compensation. Thus, the District Court found that the defendant could employ the defense under section 6(e)(1) of the Aviation Services Law and the Respondents were not entitled to compensation.
The District Court added that the fault that occurred in the air release mechanism of the tire due to excessive heat, which is meant to prevent a puncture in the tire, is a rare malfunction that requires safe repair before take-off, and in any event, this was not a case of deficient maintenance or an item that needed to be replaced before the flight.
The Court added that the fact that the airline compensated a number of passengers in accordance with the amount of compensation set under the law, does not change the conclusion that the Court reached in the matter. Such compensation was given as a payment beyond the letter of the law, and it is not possible to infer the airline’s obligation from it.
For further information please feel free to contact the Author of this update:
Adv. Shirly Kazir | skazir@fbclawyers.com | +972.3.6941348
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