A Delayed Flight - Cause For Mental Anguish Award
Introduction:
On 16th December 2010 the Magistrates Court of Rishon Le-Zion handed down a judgement in C.F. 955/08 Sharlit and Others v. The Flying Carpet and Others - eight claims filed by passengers as a result of a delay of approximately 17 hours in a flight from Israel to Turkey. All eight claims were united and heard together. Some of the passengers decided not to take the delayed flight and thus claimed full refund thereof. Other passengers took the delayed flight and claimed damages (mainly mental anguish) as a result of the delay.
The claims were filed against the following defendants: the air carrier (ON Air), the flight organizer (Flying Carpet and Flight Connections), the handling company - the company which provided the ground services (Laufer Aviation GHI Ltd.) and the travel agents.
Following the witnesses’ testimonies, the Court reached the conclusion that the delay in flight resulted from two reasons. At first a delay was caused due to a severe technical malfunction in the aircraft which was discovered when the aircraft landed in Israel (prior to the flight in question). A second delay occurred after the passengers had already boarded the aircraft when the captain refused to take-off due to the advanced stage of pregnancy of one of the passengers.
The Court’s Decision:
The Court examined the liability of each defendant and reached the following conclusions:
The First Delay:
The liability of the air carrier:
The Court applied the exclusive right of claim provision according to the Warsaw Convention (hereinafter: the Convention) regarding the air carrier’s liability under clause 19 of the Convention which imposes liability on an air carrier as a result of a delay in flight.
However in view of clause 20(1) of the Convention which exempts the air carrier from liability in cases where it proves that it had taken all necessary measures in order to avoid the damage, or that it was impossible for him to take such measures, the Court examined whether under the circumstances of this claim, the air carrier should be held liable.
Based on the factual findings, the Court reached the conclusion that the air carrier did not take all measures to avoid the damage, and hence found it liable.
As to payment of compensation, the Court stated that since clause 19 does not specify the type of damage for which the air carrier will be liable (as opposed to clause 17 of the Convention which specifically relates to death, wounding or other bodily injury), the Court can oblige the air carrier to compensate the passengers for mental anguish caused as a result of the delay. The Court referred to a previous judgement which dealt with this issue (C.A. 1346/05 (Haifa) Iberia Spanish Airlines v. Dr. Lorber and Others).
The flight organizer’s liability:
The Court determined that the flight organizer is not considered as the air carrier’s agent and/or servant, thus it is not subject to the strict liability under the provisions of the Convention.
Having said that, the Court also determined that the Carriage by Air Law - 1980 and the Convention’s provisions which apply to an exclusive right of claim against an air carrier do not prevent filing a claim based on a different cause of action against other tortfeasors, such as the flight organizer.
Under the circumstances of this case, the Court concluded that the flight organizer bears liability for the first delay and allocated the liability between the air carrier (70%) and the flight organizer (30%).
The Second Delay:
As to the second delay, the Court reached the conclusion that the flight organizer, the travel agent and the handling company all bear liability for the damage caused to the passengers as a result of the delay.
As to the handling company, the Court determined that the cause of action against it is also independent, as it is not considered as the air carrier’s agent or servant and thus, its liability is outside the scope of the provisions of the Convention.
The judgement was not appealed hence it is final, however – it has only a persuasive and not a binding force, by being given by the Magistrates Court.
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