Discussion:
The District Court accepted the motion and determined that the Carriage Law applied to the occurrence. As a result the claim was dismissed.
In its judgement, the Court interpreted the following terms for the purpose of examining the applicability of the Convention:
For reward: Section 1 of the Warsaw Convention provides that the air carriage should be for reward, however it does not require that the consideration be paid specifically by the passenger and in fact does not relate to the issue of the identity of the payer.
Since Ofek leased the aircraft and paid consideration for the lease, there is no doubt that a reward for the flight was paid even if it was not by the Plaintiff himself.
Plaintiff referred the Court to a previous case in the matter of C.F. 1375/03 Eindor v. the Estate of Ben David and to the appeal in C.A. 2168/05 (in the same matter) in which the Court did not apply the Convention to an aircraft crash during a pleasure flight.
The Court drew a distinction between the Eindor and the Ben Yitach cases and determined that in the former, the pilot leased the aircraft for the purpose of taking his friends for a pleasure flight, whereas in the current claim, even though Plaintiff himself did not pay for the flight, the flight was for work purposes. The payment which was made by the pilot in the Eindor case cannot be considered as a reward given by his friends which took the flight for pleasure.
Moreover, the Warsaw Convention also applies where the carriage is performed by an "air transport undertaking" for no reward. The Court stated that Plaintiff's flight, which was for the purpose of filming an advertising movie, can be considered as an air transport undertaking in which Plaintiff was a "free passenger" in the framework of his relationship with the carriers.
As to the ticket issue, the Court accepted the statement given in an affidavit according to which a ticket was issued for Plaintiff. It is sufficient that the ticket is issued and no provision in the Warsaw Convention requires that the ticket will be handed to the passenger.
The Court also declined the allegation that Plaintiff was not a "passenger" but rather a "crew member".
Domestic carriage: this term is defined by the Carriage Law as "carriage by air in which the place of departure and the place of destination according to the terms of the agreement between the parties are situated within the territory of Israel...". Plaintiff alleged that the flight did not meet this definition, as the aircraft intended to land in the same place of departure.
The Court ruled that there is no requirement in the definition of "Domestic Flight" which requires that the departure and the destination locations be different. The requirement of the Law is that both points are within the State of Israel.
Plaintiff relied on a previous judgement of the Haifa District Court in the matter of C.C. 147/01 Rudi Dan v. Chim Nir. In the Rudi Dan case, the aim of the flight was to take a group of parachutists for the purpose of parachuting from the aircraft and the Haifa District Court did not apply the Carriage Law to the accident.
In the present case, the Court ruled that in the Rudi Dan case, the parachutists were not intended to arrive at any specific destination with the aircraft, but only to parachute from it, whereas in the current case, Plaintiff intended to arrive back and land in Herzliya once the filming was completed.
Conclusion:
Although a dismissal of a claim in limine is a radical result, the court ruled under the circumstances of this case, that the Carriage Law and the Warsaw Convention apply to the claim, hence there was no other way but to dismiss the claim due to lapse of the limitation period.
It should be noted that the question whether it is necessary that the reward for the flight be paid directly by the passenger has not yet been dealt with by the Supreme Court. However, this decision provides a broader interpretation of the term "for reward".
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