Introduction

The Magistrates Court of Acre applied Article 25 of the Warsaw Convention[1] and determined that a claim was not subject to the limitation of indemnity provided by Article 22 of the Convention.

 

The Facts

On 31st July 2009, while returning from Toronto to Israel on an EL AL flight, during the security check-in inside EL AL’s security room, Plaintiff was informed by EL AL’s representatives that she was required to leave her laptop case, including its contents, inside her suitcase and could not carry the laptop on the aircraft.

Inside the aircraft, Plaintiff received four tickets in respect of her luggage without any explanation. Upon arrival to Israel, Plaintiff discovered that her suitcase was empty and that her laptop case was missing.

Plaintiff approached luggage claims and discovered that a part of the contents of her suitcase was placed in four cardboard boxes and that some of the items were missing.

Plaintiff filed a claim for the missing contents (laptop, camera, clothes, etc.) in the amount of $4,160. In addition, Plaintiff claimed for mental anguish.

 

EL AL’s Arguments

EL AL argued for the applicability of the Warsaw Convention to the carriage as both Israel and Canada are parties to the Convention which limits the carrier’s liability (Article 22).

EL AL also argued that the claim should be dismissed in limine as clause 9(a) of the Flight Law – 1977[2] authorized EL AL to perform security checks on passengers and clause 12 provides that no person is allowed to enter an aircraft unless a security check was performed on the passenger and his/her luggage. Therefore, EL AL acted according to its authorization while performing the security check and when reaching the decision not to board part of Plaintiff’s luggage onto the aircraft.

Clause 19 of the Flight Law grants immunity i.e. exemption from liability to the individual who performed the security check against any civil or criminal claim in respect of such check.

It was further alleged that Article 22 of the Convention provides a limited amount of indemnification and therefore, Plaintiff’s claim is limited to these amounts.

As to mental anguish, EL AL argued that previous judgements determined that the law does not allow any compensation beyond the limited amounts provided under the Convention.

 

Plaintiff’s Argument

Plaintiff argued, inter alia, that Article 25 of the Warsaw Convention should apply and hence where the damage resulted from an act or omission which was done with the intention to cause damage or through reckless and indifference towards the probability of damage, the limitation under Article 22 should not apply.

 

Decision

In respect of the security check and EL AL’s decision not to permit Plaintiff to board the aircraft with her laptop, the Court stated that previous judgements ruled that security checks are one of the carrier’s powers and obligations. In some cases, this procedure is not comfortable by its nature, however it is necessary. The Flight Law indeed provides immunity against claims for damage which was caused during this procedure, unless it is proven that damage resulted from a malicious act. The Court ruled that Plaintiff did not prove that the security check was done in an unreasonable way or that it deviated from the required procedure.

As far as the contents of the luggage are concerned, the Court ruled that the nature of the package does not constitute part of the security check.

The Court ruled that the claim under the Convention is the passenger’s exclusive cause of action.

The Court analyzed the circumstances and reached the conclusion that the fact that the contents of Plaintiff’s luggage was divided into several boxes may lead to a possible loss or part thereof and the fact that EL AL removed the laptop from the suitcase also substantially increased the chances of such loss.

The Court stated that as a reasonable airline, it is expected that EL AL would ensure that the contents will be packed inside the suitcase, as it was originally handed over or alternatively, in a similar package.

By not doing so, EL AL acted with gross negligence and with indifference to the possible results of their act. Therefore, the Court applied the provisions of Article 25 of the Convention and ruled that the claim is not subject to the limitation amounts set in the Convention.

EL AL was obliged to pay Plaintiff the amount of NIS 6,600 (approximately $1,746) plus legal expenses in the amount of NIS 2,000.

 

Endnotes

[1] C.F. (in Fast Proceedings) 39380-01-10 Rania Mugrabi v. EL AL Airlines Ltd. (3rd November 2011)

[1] The Flight Law – 1977 was cancelled and replaced on 15th April 2011 by a new Law, the Flight Law – 2011.

[1] C.F. (in Fast Proceedings) 39380-01-10 Rania Mugrabi v. EL AL Airlines Ltd. (3rd November 2011)

[2] The Flight Law – 1977 was cancelled and replaced on 15th April 2011 by a new Law, the Flight Law – 2011.