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 By Adv. Peggy Sharon and Adv. Moshe Abady 

Will The Warsaw Convention Apply to Non - Regular Transportation?

  (Who is a 'Passenger'?)

   (What is 'Carriage'?)

General

An aircraft accident resulting in bodily injury to passenger is governed by The Warsaw Convention , which on the one hand, imposes almost strict liability on the air carrier but on the other hand, limits the amount of indemnity payable to the passenger.

Article 1 of the Convention provides that 'This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking'.

In order that the limit of indemnification will apply, the air carrier should issue a flight ticket which includes a declaration that the carriage is subject to the rules relating to liability as established by the Warsaw Convention.

The Warsaw Convention also provides for a short limitation period of two years after the aircraft reached, or should have reached its destination, for filing a claim against the air carrier.

Several countries which have joined the Warsaw Convention, enacted internal laws in which the extended Warsaw Convention applies also to domestic flights.

No doubt that the convention applies to regular international transportation and/or to domestic air carriage transportation (in countries which extended the applicability of the Convention). But, what about special air flights which are not regular air carriage transportation (such as paragliding, air sports activities, etc). This interesting question was the subject matter of some Courts in various jurisdictions and lately also in Israel where the courts were asked to determine whether the Warsaw Convention applies to such flights.

In a recent judgement handed down by the Haifa District Court in Israel, the Court ruled that the Warsaw Convention does not apply in circumstances where an aircraft took off for one purpose - 'free dive' parachuting by members of a parachute club.

The aircraft (type 'Pilatus Porter') was leased to a parachute club ('Sky Club'). The aircraft, flown by a pilot employed by Sky Club, took off with nine members of the club on board for the purpose of parachuting activities in which the club's members participated. Several seconds after take off (and before the club members had begun parachuting), the aircraft crashed. Three of the parachutists and the pilot died and six others were injured.

Pursuant to the fatal crash, various claims were filed in the Haifa District Court, inter alia, against the club, its insurers, the operator of the aircraft, the company which provided maintenance services for the aircraft, the Civil Aviation Authority and the manufacturer of the aircraft.

The club's insurers alleged that the Warsaw Convention should apply, and accordingly their liability should be limited. Although no flight ticket was issued, the club's insurers alleged that the club's liability policy provided that where a flight ticket should have been issued by the club- insurers' liability will be limited, as if such ticket had been issued.

The Court rejected this application and determined that the Israeli Carriage By Air Law - 1980 which provided that the Warsaw Convention applies also to domestic flights, was not intended to apply in the circumstances of this claim. The Court ruled that the correct interpretation which should be given to the term 'passenger' according to the Warsaw Convention and the Carriage by Air Law - 1980, is someone who is being transported from one place to another, whereas the parachutists intended to leave the aircraft during the flight and before the aircraft returned for landing and therefore they are not considered as 'passenger'.

Moreover, the Court ruled that the purpose of the Carriage by Air Law is to regulate the transportation of people within its common meaning. There is a public interest to protect an air carrier which transports people, and to limit its liability following aircraft accidents. This rationale should not apply to the private parachute clubs and there is no public interest in protecting such clubs by enjoying the said limitation of liability.

This decision was appealed to the Israel Supreme Court which has yet to decide on the appeal.

In this respect it should be noted that in Court precedents handed down in various countries which are members of the Warsaw Convention, it was decided that the mere presence of a person on board an aircraft is not sufficient, but rather it should be examined whether the intentions of the parties were to contract within an agreement for carriage, in order to determine whether the Warsaw Convention applies.

In Netzer v. Kanfonit, claimant took off in an ultra-light aircraft accompanied by an instructor. During the flight, the aircraft crashed and claimant was severely injured in the accident. He filed a claim, inter alia, against the owners of the ultra-light which also operate the airfield from which he took off.

The defendant's allegation, that its liability should be limited in accordance with the Israeli Carriage by Air Law - 1980, was rejected by the Israeli court since no flight ticket was issued to the claimant.

Although the Court sufficed with the ticket issue, it could have also based its opinion on the fact that no 'carriage' was in fact involved. Claimant took flying lessons and instructions, and was not being transported from one place to another. As such, he also cannot be regarded as a 'passenger' and no carriage was in fact involved.

In the matter of Disley the Royal Courts of Justice ruled that the Warsaw Convention does not apply in the circumstances of this case, in which the claimant was severely injured in a paragliding accident when she was being instructed by the defendant for her elementary pilot certificate as a paraglider.

The court rejected the defendant's allegation that the claim was time-barred based on the Carriage By Air Acts (Applications of provisions) Order - 1967 which relates to domestic flights.

The Court ruled that there is no Warsaw Convention Contract of Carriage interest here and that the claimant is not considered as a 'passenger'. In addition, it was ruled that the consideration paid by the claimant was for her instruction and not for her transportation, while one of the pre-requisites for the applicability of the Warsaw Convention, is that the flight was for reward (alternatively no reward is required where the carriage is performed according to an air transport undertaking).

A different view was expressed by the French Court in which the Court expressed its opinion that a paragliding flight should be considered as air carriage.

In Dutshi v. General Labour Union Sick Fund, the circumstances of the occurrence were as follows: the claimant filed a claim against the Sick Fund for malpractice during his birthing process which left him with severe brain damage. In turn the Sick Fund filed a Third Party Notice against Arkia Israel Airlines Ltd. alleging that the Sick Fund reserved seats on a Arkia Airlines flight from Eilat to Tel Aviv in order to transfer the claimant from Eilat to a hospital in Tel Aviv. The aircraft took off a few minutes before the claimant arrived at the airport and therefore it was alleged that due to the delay in transferring the claimant to the hospital in Tel Aviv, he sustained severe damages.

Arkia filed an application to strike out the claim since it was time-barred in accordance with the Carriage By air Law - 1980 and the Warsaw Convention.

The Court ruled that the claimant was not considered a 'passenger' although seats had been reserved for him on the flight. A person becomes a 'passenger' once he is accepted by the airline carrier, i.e. after he receives a flight ticket. The Court also ruled that no 'accident' occurred in the circumstances of this claim, since the health condition of the claimant was not the result of an unexpected occurrence during the flight. The damage sustained by the claimant did not occur on board the aircraft, or while boarding the aircraft, and therefore the Warsaw Convention is not applicable.

In various Court precedents handed down in countries which are members to the Warsaw Convention, it was ruled that the Convention does not apply to aircraft crew.

In the claim of Sulewski, the Claimant's husband was employed by a cargo carrier as an aircraft mechanic. He was assigned to specific flights which were scheduled to land at airports where he was to perform mechanical services. The Court ruled that he is not to be considered as a 'passenger' and that no contract of carriage was placed. His pre-existing contract of employment and his work assignments were the reason he boarded the flight. This conclusion was reached although most, if not all, of his hand-on duties as a mechanic were confined to being performed on the ground. The Court ruled that a mere physical presence on board an aircraft in flight, is insufficient to characterize the operation as a 'carriage'.

In the judgement of Herd. the House of Lords reached a different conclusion. This claim was filed by relatives of a Scottish police officer who was killed while on board a helicopter which crashed during a snow storm. The police officer was a member of the force's helicopter unit and his duties were to carry out aerial surveillance and detection within the region covered by his unit. The helicopter was operated by the defendant company under a contract with the police, which provided that the helicopter would be used exclusively for police use.

The Court accepted the defendant's contention that the claim was time-barred by the Carriage by Air Acts (Application of Provisions) Order - 1967. The Court held that although the police officer was on board the helicopter for the purpose of carrying out his duties as a police officer, he had no responsibility in respect of the operation of the aircraft, and the activities which he carried out while on board could not be regarded as contributory to the carriage. He was therefore regarded as a 'passenger' under the Carriage by Air Law.

In orbiter, the House of Lords agreed that the Warsaw Convention will not apply to a trainee pilot or in respect of a test flight since this is not mere carriage.

In order to examine whether the Warsaw Convention applies, most Courts do not suffice with a mere presence on board an aircraft, but rather the Courts thoroughly examine the circumstances of the flight and whether indeed a Contract of Carriage for transportation of a passenger was performed. The Courts interpreted the Warsaw Convention in accordance with its purpose, i.e. to prevent the collapse of air carriers, and in most cases Courts refuse to apply this Convention where this certain interest does not exist.

Nevertheless, there are some instances of Courts giving a broad interpretation to the Warsaw Convention and applying it to non-regular air carriage transportation.