Is The Two Years Limitation Provided by the Warsaw Convention Subject to Extension?
Siberia Airlines v. The Estate of Alexander Grigorbaich
On July 27 2008 in Siberia Airlines v The Estate of Alexander Grigorbaich the Tel Aviv District Court dealt with the issue of whether the two-year limitation period provided under the Warsaw Convention may be extended based on, among other things, the Israeli Law of Limitation 1958.
The registrar of the district court ruled that under unique circumstances, such as proven allegations of fraud against the defendant, it is possible to extend the convention's short prescription period.
The district court of appeal denied the appeal against this decision, stating that the defendants may raise their allegations regarding the issue of limitation within the framework of the claim.
On 23 February 2010 a motion for leave to appeal to the Supreme Court was denied based on the same reasoning.
Facts:
On October 4 2001 a Siberia Airlines plane was hit by a Ukrainian Army rocket and crashed over the Black Sea.
On May 20 2007 the estate of Alexander Grigorbaich and 20 others filed a claim in the Tel Aviv District Court against Siberia Airlines[1].
The plaintiffs alleged that according to an agreement between the states of the Commonwealth of Independent States (CIS), airline companies were obliged to install an 'identification system' in all CIS aircrafts to protect the aircraft from being struck by rockets fired by CIS armies. According to the plaintiffs, the system was not installed in the aircraft and thus it was not identified by the Ukrainian Army as a civilian aircraft.
Siberia Airlines filed a motion[2] to strike out the claim because the limitation period had elapsed. It argued that the alleged occurrence was subject to the Carriage by Air Law 1980 and the Warsaw Convention, which sets a short two-year limitation period from the date of the occurrence.
The plaintiffs argued that they had only discovered in 2005 that the system was not installed in the aircraft and that the defendants had concealed this information through misrepresentation. Under these circumstances, the plaintiffs argued that the Warsaw Convention did not apply to the occurrence.
Among other things, the plaintiffs argued that Clause 7 of the Law of Limitation, which extends the limitation period in case of fraudulent activities, should apply to this case because it is a specific provision which supersedes the general provisions provided by the Carriage by Air Law and the Warsaw Convention. Furthermore, the convention does not provide relief in case of fraudulent activity on the part of the defendant.
Clause 7 of the Law of Limitation provides as follows: "Where the cause of action is fraud or cheating by the defendant, the period of limitation begins on the day on which the Plaintiff learned of the fraud or cheating."
The Decision:
The carrier's liability in case of alleged damage to a passenger should be examined according only to the provisions of the Warsaw Convention, which sets an exclusive claim. However, with regard to the limitation period, under the unique circumstances of this case, which demanded a factual inquiry, it could not be determined at the preliminary stage and thus the airline company was allowed to raise the time bar plea during the hearing.
Therefore, at this stage, the limitation period should be calculated from the date on which the plaintiffs became aware of the full facts.
The court's decision was based on, among other things, a Supreme Court precedent handed down in AA Teichner v Air France Airlines[3], in which the court also examined the applicability of various exceptions in the Law of Limitation which extend the prescription period (eg, in case of minors, unknown facts or admission of liability).
The court also stated that another reason to deviate from the Warsaw Convention was the fact that it does not relate to a carrier that conceals information from the plaintiff, who only discovers it after the two-year limitation period has elapsed. The court stated that in case of laconic wording in the law, the court is permitted to adopt the provisions provided by the general laws.
Conclusion:
Since the Supreme Court denied the motion to appeal, this issue will remain open until a final judgment is handed down. However, it appears that if it can be proved that the carrier acted in bad faith and concealed information, the short limitation period provided by the Warsaw Convention may be extended by calculating the period from the date on which the plaintiff discovered the concealed information.
Although the Supreme Court denied the motion for leave to appeal, it stated that the case raised fundamental questions regarding the correlation between the Law of Limitation and the specific provisions of the Warsaw Convention and whether the Supreme Court precedent in Teichner should remain in force.
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