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What Constitutes "Willful Misconduct"
An Israeli Perspective
By Adv. Peggy Sharon
Background:
The Supreme Court defined in C.A. 74/81 Olympic Airways SA v. Menzel Kalimi twenty years ago the meaning of "willful misconduct".
Kalimi, a Jewish couple fled the Humeini Regime to Israel via Greece, sending a suitcase containing cash money as cargo. Upon reaching Israel, they discovered that the suitcase had disappeared. Kalimi alleged that the airline had acted with willful misconduct in view of the fact that the suitcase was left unattended on the luggage wagon. This argument was raised in order to avoid application of the limited amount of compensation under the Warsaw Convention. The Court determined that no proof was presented concerning the exact circumstances in which the suitcase was lost.
The Supreme Court examined the interpretation given by various Courts in countries which are parties to the Convention and stated that the Israeli Law of Transportation 1961 applied in Israel the Warsaw Convention as amended by the Hague Protocol, 1955.
The Court analyzed Section 25 of the Convention by reference to authorities and judgements relating to the term "recklessness" or "willful misconduct" in English, Australian and American judgements, all of them requiring proof that the carrier was aware at the relevant time that his failure to act was wrong and yet acted as it didt regardless of the result which may happen. Mere negligence is not enough.
"So too are the degrees and quality of recklessness required in accordance with Section 25 of the Warsaw Convention, both the original and the amended versions, and the facts which were proven in the occurrence under discussion, cannot justify the decision, that the respondent have provided proof in accordance with the requirements of Section 25 as above."
The Supreme Court ruled that the airline company's behaviour did not amount to willful misconduct because its negligence did not reach the level which is required by Section 25 of the Convention.
Recent Claims - Lower Court Decisions
(a) C.C. (Tel-Aviv) 1668/06 Ratz v. Euroswit Ukraine Airlines
Mrs. Ratz and her husband flew to Thailand and returned to Tel Aviv on the same airline, and on landing in Tel Aviv Mrs. Ratz discovered that her suitcases were severely damaged. She therefore approached the airline company requesting compensation for the damage, however, the airline only offered a very small amount in accordance with the limits specified in Section 22 of the Warsaw Convention.
Consequently, Mrs. Ratz filed a claim in Court asking the Court to apply Section 25 of the Convention, in light of the fact that the airline had acted with willful misconduct.
The Court stated that the severe damage caused to Plaintiff's suitcases, meets the requirement of the damage as being caused in the very least through recklessness. Such damage was not caused by mere negligence and hence, it meets the term of willful misconduct.
(b) C.C. (Tel-Aviv) 17738/06 Yaakov Riser v. Varig Brazilian Airlines S.A.
Mr. Riser and his wife purchased tickets in Israel for a flight to Salvador from where they continued to Rio de Janeiro, then on to Madrid and back to Israel. However, when they approached the airline counter in Salvador, they were notified that the flight to Rio was fully booked.
In view of the above, they accepted the airline's alternative offer to fly at a later hour, but were later notified that this later flight was cancelled. Consequently, the couple missed their flight to Madrid.
Mr. Riser and his wife were then offered a flight to Sao Paulo in order to catch a connecting flight to London, and from there back to Israel. In London they discovered that the tickets to Israel were not waiting for them at the counter, as promised. Ultimately, they purchased the tickets on their account.
Mr. Riser filed a claim in which he alleged that the Court should apply Section 25 of the Convention to this case in light of the fact that the airline company acted with willful misconduct.
The Court stated that the behavior of the airline carrier was unprofessional and all the delays were caused by its willful misconduct.
c. C.C. (Tel-Aviv) 33015/99 Ben-Zur Nurseries v. Iberia Lineas Aereas De Espana S.A.
Plaintiff, a plant nursery, contacted an airline in order to airfreight a shipment of saplings to Honduras. The cargo airway bill as well as the labels on the cartons specified that the plants should be stored at a room temperature of 15 degrees C. The plants were not kept at the proper temperature as instructed and upon arrival in Honduras they were all found to be dead.
Plaintiff filed a claim alleging the applicability of Section 25 of the Warsaw Convention in light of the fact that the airline's behaviour should be regarded as being willful misconduct.
As the nursery provided instructions concerning storage of the plants on the aircraft during transportation, (as specified in the airway bill and on the cartons), the Court stated that there was no doubt that the carrier had been advised of the sensitivity of the cargo
The airline knew that the cargo contained living plants which should be kept in special conditions and temperature and it should have known and probably knew that if the cargo would not be kept in the required conditions it will probably be damaged, as was eventually the outcome.
The Court ruled that the airline acted with willful misconduct as it knew that that such conduct would probably result in damage, and Section 25 to the Warsaw Convention should be applied in this case so that the airline was held responsible for the whole amount of the damage.
Conclusion
For the plea of willful misconduct as stated in Section 25 of the Warsaw Convention, the plaintiff has to prove both that the degree of the negligence (deviation from the standard of care) is very high - an objective test, and in addition that the carrier was aware of the probability of the occurrence of damage due to its behaviour and yet was indifferent to this result - a subjective test.
However, as seen from the above mentioned cases, the court tends towards finding of willful misconduct in favour of the plaintiff, when the extent of damage suffered by the plaintiff is severe even if no actual proof is presented to meet the other elements of the definition as ruled by the Supreme Court.
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