Air accidents inevitably raise numerous complex issues, one of which is invariably that of jurisdiction. Where the Warsaw system of conventions applies as was amended eventually by the 4th Protocol of Montreal (hereinafter: Warsaw Convention), a framework for jurisdiction is specified; however, where Warsaw Convention does not apply, jurisdictional issues may become more problematic.
Introduction
In January 2004, a light aircraft crashed short of landing at Toussus le Noble, airport near Paris, France The three individuals on board, the pilot, his wife, and their daughter, died in the incident. Weather conditions supported the possibility of aircraft icing. A sudden loss of airspeed and altitude consistent with icing were recorded near the final destination. The aircraft was returning to France from Israel with a refuelling stop in Greece.
The aircraft, although based in France, was owned and operated by a United States corporation. Each person on board was an Israeli citizen residing in France. Proceedings were commenced in Israel and the United States by the estates of the wife and daughter against the pilot and the United States corporation. Proceedings were not commenced in France. The issue of whether the appropriate jurisdiction for litigation was France, the United States, or Israel, was complex. Israel was considered to have the least basis for jurisdiction. For reasons discussed below, the U S proceedings were ultimately discontinued following agreement by the parties not to challenge Israeli jurisdiction. The agreement left open the substantive law to be applied to the Israeli claims.
Which Court has jurisdiction in respect of the claim?
The US nationality of the owner and operator of the aircraft supported US jurisdiction subject to the applicability of Forum Non Conveniens. The residency of the occupants of the aircraft, and the fact that the incident occurred in France supported French jurisdiction. Assertions for Israeli jurisdiction were founded (1) on the basis of the citizenship of the deceaseds and (2) on the basis that the pilot's decision to operate a flight in excess of eight hours without a co-pilot and with poor weather expected at destination was negligent and the negligent act, i.e. the decision, took place in Israel.
Generally, the jurisdiction of the Israeli courts is determined by the mere presence of a defendant in Israel, i.e. if a defendant is served with a claim while (even temporarily) present in Israel, then the Israeli Court will acquire jurisdiction. In this case, relatives of the family who lived in Israel accepted service of proceedings and, on this basis alone, Israeli jurisdiction was founded. Although there was a valid basis for applying to have the Israeli claims dismissed in favour of France, where jurisdiction exists prima facie in Israel, and where the injured parties are indisputably Israeli citizens, the outcome of an application for Forum Non Conveniens is far from certain.
On this basis, and without any stipulation as to the law applicable to the Israeli claims, the Defendants accepted Israeli jurisdiction.
Which substantive law applies to the Israeli Claims?
The first choice for the Defendants was the Warsaw Convention which was enacted into Israeli law by the Israeli Carriage by Air Law, 1980. Under that law, liability would be limited to the amount specified in the Warsaw Convention.
If the applicability of the Convention is successfully challenged (see below) the Israeli Court would need to choose an appropriate substantive law?
Although Israeli Courts may have jurisdiction in a certain matter, it does not follow that the substantive law which would be applied by the Court will also be Israeli Law.
For example, Israeli law will not be applied if:
(a) there is an express choice of law agreement between the parties indicating a different law, or
(b) most of the links of the matter and the circumstances surrounding it lead to another law.
In this case, there were significant grounds to argue that most of the links led to French law. These included the location of the occurrence, the place of residence of all the deceaseds, the place of their employment, the place where maintenance of the aircraft was carried out, and more.
Based on French legal advice,, where the Warsaw Convention does not apply, domestic French law sets limits on the damages. In these circumstances, it was considered that the amounts which may be awarded by a French Court, would be considerably below those awarded in general tort cases.
In this case, the claims were settled without judgement on applicable law.
When will the Warsaw Convention Apply?
The Plaintiffs challenged applicability of the Convention on several grounds, one of which was that the flight had been a private / pleasure flight and should not be considered to be commercial in nature or involve carriage for reward. The Defendants argued that the flight was not commercial in nature and, therefore, the Convention could not apply.
According to the Israeli Carriage by Air Law - 1980, the provisions of the Warsaw Convention apply to an air carrier taking off from and landing in countries which are both parties to the Warsaw Convention. In this case, Israel was a signatory to the Warsaw Convention up until the 4th Protocol of Montreal whereas France was not a signatory to the 4th Protocol but rather a signatory to the Montreal Convention 1999.
The issue of the application of the Warsaw Convention has been addressed by Israeli courts in several aviation claims arising out of accidents which occurred in circumstances other than during normal commercial flights.
In C.C. 1375/03 (District Court) Ein Dor Rina & Others v. Aerobat & Others, the Court dismissed the defendants' allegation that the Warsaw Convention applied to a flight for which no consideration was paid by the passengers.
The pilot in the Ein Dor case took his friend and his son on board a leased aircraft for a pleasure flight and crashed after take off. In the claim filed for insurance benefits, the defendants filed a motion to dismiss on the basis that claim was filed after the two year limitation period under the Warsaw Convention had elapsed.
The District Court Registrar ruled that the Warsaw Convention did not apply to a flight which was for pleasure and without reward.
The Appellate Court of Tel Aviv in the Ein Dor claim ruled that since no consideration was paid by the passengers for this flight, the Warsaw Convention does not apply.
Although the aircraft was leased by the pilot, it was leased for his own private use, and therefore, the leasing expenses were not regarded as consideration. The judge also stated that the only object of the flight was sightseeing, and hence it was not within the object of "transportation" as required by the Convention.
Another Israeli Court reached a different decision on similar facts. In C.C. 3356/02 (Herzliya Magistrates Court) Barak Lior Estate & Others v. Ron Klichman Estate & Others), the Court dealt with the case of a pilot who took his friend on a pleasure flight which ended in a fatal crash for both occupants of the aircraft. In the claim filed against the owner of the aircraft and its insurers the Court ruled that the provisions of the Warsaw Convention applied and the claim was, accordingly, time-barred. The judge in this case ignored the requirement of reward, No appeal was filed.
Conclusion
Even if an accident occurs outside the State of Israel, and even if all or substantially all facts and circumstances associated with the accident have no relation to Israel or Israeli jurisdiction, a claim may, nonetheless, be brought in and heard by an Israeli Court to be dealt with in accordance with substantive law as chosen by the court.
Where the Warsaw Convention does not apply to an air accident, an Israeli Court will ordinarily turn to the various legal systems which have the greatest connection to the circumstances of the case and will choose the law most closely linked to all facts and circumstances. Foreign substantive law will be interpreted and applied based on expert legal opinions.