Adv. Gill Nadel, Keydar Halali
Lately, a lawsuit was referred to the Small Claims Court in Tel Aviv by a passenger suing an airline company for damages caused to him after delaying his flight.
The facts of the case:
The passenger booked a flight from London to New York at Continental Airlines, yet the flight itself was carried out by Virgin-Airlines with which Continental has a “Code Sharing” agreement. Code sharing agreement is a cooperation agreement signed by airline companies and according to it each company can market and sell flight tickets of the other company. Such cooperation contracts allow each company to offer its customers a wider range of flight destinations, and a larger variation of flights to the same destinations but on different hours, and (flights) to destinations that the (other company) does not reach. In this case, the flight left to its destination four and a half hours late, and as a result the passenger filed lawsuit to court.
The passenger’s claims:
The passenger claimed that after the passengers boarded, the Captain announced that there was a problem with the engine, the passengers were not taken off and watched the plane’s mechanics attempt to fix the engine.
After two hours, the passengers were taken from the plane to terminal so that they could take an alternative flight. The passengers were brought to a gate flight where there weren’t any proper conditions- there were no lavatories, no access to the internet, and no telephones.
The passenger further claimed that he had asked continental’s representatives to allow him to board on another flight as he only had the luggage that was on him, and there were many other flights, including Continental’s, but in spite all this he was refused.
The flight was delayed by four and a half hours, and consequently the passenger claimed to have lost a day’s work, loose a pair of gloves which he forgot due to stress, spend money on taxis, make (costly) phone calls and suffer from dismay. All in all the passenger estimated the damages caused to him at 6,600 NIS.
Continental Airline’s response:
Continental claimed that as the flight was not operated by it but by Virgin- Airlines, according to the Warsaw Convention the passenger should have filed his claim against Virgin.
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Further more, Continental claimed that according to The Warsaw Convention, since it did not have any control on the turn of events , since the flight was one operated by Virgin, no responsibility should be cast upon it. It was further claimed by Continental that according to the Air Transport Law, since the delay was caused by a technical problem in the airplane, it was no one’s responsibility. Finally Continental claimed that it offered the passenger, though it was not obligated to do so, a flight ticket to compensate him but he refused to accept it.
The Court’s Ruling:
The court stated that the case was under the provisions of The Warsaw Convention, which deals with the responsibilities of an aerial carrier, and also under the Guadalajara Convention, which deals with circumstances such as “Code Sharing”.
After deep consideration of the relevant articles in the conventions the court rejected Continental’s claim that it has no responsibility since it s not the actual carrier by The Warsaw convention and therefore the action should have been referred to Virgin Airlines.
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The court ruled that according to the Guadalajara Convention the responsibility lays both on the carrier in the contract as well as the carrier of the flight itself., therefore the responsibility lays on Continental and Virgin, together and apart.
Further on, the court rejected Continental's claim that since the flight was operated according to Code Sharing and not by continental itself, it had no control over the turn of events which were under the control of Virgin Airlines.
The court ruled that accepting such a claim would deny any responsibility from the carrier’s whose name is on the contract, since, allegedly, the responsibility is always cast on the carrier who actually performs the flight, and not the carrier written in the contract.
Further on the court mentioned that the carrier in the contract will only be exempted of responsibility if he can prove he did everything in his means to prevent the damage, and that the damages caused were out of his hands or the hands of the actual carrier.
Since, in this case, Continental Airlines did not present a shred of evidence regarding the technical incident, its ability to anticipate it or its ability to prevent it and fix the problem, it was ruled that (Continental) can not be exempted.
In light of this the court accepted the passenger's claim and ruled in his favor. But, as far as the compensation goes, the court ruled that the passenger did not prove his financial damage from loosing a day’s work nor did he prove the value of the lost gloves and so the court compensated him for his dismay, the phone calls he made and for taxis expenses a total sum of 1,300 NIS in addition to 100 NIS for court expenses.
(S.F. (Small file) (Tel-Aviv) 4641-10-09 DinaiVs. Continental Airlines Inc., Judge Limor Bibi- Maman, verdict given on 6.1.11).
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