Attorney Gil Nadel, Gilad Paz
The laws dealing with international air transports (the Warsaw Treaty, the Montreal Treaty, the Air Transport Treaty) pose a fundamental obstacle to the possibility of suing an airline company for damage to cargo. Among other things, these laws set a restriction on the amount of compensation that can be demanded as well as a relatively short statute of limitations- two years from the plane's arrival at its destination (or the date it was supposed to arrive).
It is in the interest of many of the entities involved in the air transport network, besides the actual forwarder (the airline), to be considered eligible for such protections and so, such entities have often made claims for their legal standing to be equal to that of the forwarder.
Recently, a company providing ground services at the airport attempted to make a claim for their legal standing to be similar to that of the forwarder, whereby a law suit against them would be canceled on account of the statute of limitations. But the court rejected this claim and the prosecution will continue to be debated.
The case and claims made by the parties:
The cargo on a shipment of the Teva Company, which was sent to the USA via air transport, suffered damages. The insurance company recompensed Teva for the value of the cargo at a total of NIS 360,000 and filed a law suit against all the entities involved in the transport network- the foreign airline, the airport warehouse and the Israeli Airport Authority- claiming they are responsible for the damage.
The Airport Authority submitted a third party notification (law suit) against the QES Israel Company who provided ground services for the airplanes of various airlines landing in Ben Gurion Airport. The Airport Authority claims to have overseen the loading of the shipment onto the airplane, thus, the Airport Authority claims that the cargo was damaged when handled by this company and therefore this company is in a position to best know what caused this damage and it is this company's responsibility to prove itself innocent of negligence (in law of torts this rule is known as "the matter speaks for itself").
The ground services company claimed that according to international treaties dealing with air transports, which were adopted by Israel as part of the air transport law, its legal standing should be an "agent or server" of the air forwarder and as such the company claimed the law suit against it has reached its statute of limitations since it was submitted more than two years after the airplane reached its destination.
The ground services company claimed, among other things, that according to the rules of the Airport Authority, any party that has signed a contract with the Airport Authority for the provision of ground services at the airport is considered a forwarder.
Court ruling:
The court determined that at this point it is impossible to determine whether the ground services company is entitled to an abridged statute of limitations such as that of an air forwarder.
The court noted that a contract between the ground services company and the Airport Authority was not presented to the court which is why this claim has been deferred and the prosecution will continue.
[Civil Suit (Magistrate's Court Tel Aviv) 169914-09 Menora Insurance Company Ltd. and others vs. Continental Airlines and others, before Judge Mordehai Ben Haim, decision of May 29, 2012, party representatives were not mentioned].
Notes:
One of the defendants in this case is the Maman warehouse, where commodities are stored before export or after having been imported into Israel via air transport.
In the past, the Maman Warehouse has tried to make a similar claim as that of the ground services company, namely that its legal standing should be that of a "server or agent" of the air forwarder whereby legal actions filed against them would be subject to the two year statute of limitations.
In the decision of June 2012 [civil suite 19308-01 Taga Electronic Components Ltd. and others vs. DHL Express Worldwide and others], the court accepted this claim and determined that Maman is an integral part of the air transport process since the cargo is moved to their warehouse as soon as they are unloaded and there is a direct connection between the forwarding services and the Maman employees during the process of storing and releasing the cargo. In this case the court determined that Maman provides services that are crucial to the air forwarder which makes it possible to consider Maman an "agent"of the air forwarder for the purpose of the Warsaw Treaty.
In contrast, in the decision of August 2011 [Swift Procedure Civil Suite (Tel Aviv Magistrate's Court)- 51696-07 Eliyahu Ltd.- Insurance Company vs. El Al Israeli Airlines and others], Maman made a similar claim, but the court deferred this claim and determined that the legal standing of the Maman warehouse is not that of a "server or agent" of the air forwarder.
There are also a number of older court rulings of the Supreme and District Courts. In one of them [Civil appeal 192/83
El Al Israeli Airlines vs. Moshe Naamat] it was ruled that the employees of the Airport Authority cannot be considered agents or servers of the air forwarder, and in another ruling [Civil suite (Tel Aviv District Court) 288/81
Philippe Givel Reise vs. Maman Handling and Cargo Terminals] Maman's claim to the Treaty was deferred.
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