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Israeli court interprets the term "carriage of persons for reward" under the Warsaw Convention

The Tel Aviv District Court recently ruled in Aerobat and others vs. Rina Ein Dor and others, that the Warsaw Convention does not apply in a situation where a pilot rented (for consideration) an aircraft from Aerobat and flew it with his friends on a "fun" weekend flight. Therefore, the court ruled that the time limitation period of 2 years under Article 29(1) of the Warsaw Convention does not apply in this case.

The facts of the case were not in dispute. The pilot rented an aircraft from Aerobat, an Israeli aviation company. The pilot invited a work colleague and his son on a "fun" flight that ended tragically when the aircraft crashed and all passengers died. The claim was brought two and a half years after the accident.

Section 5(a) of the Israeli Carriage by Air Act of 1980 (the "Act"), applies the provisions of the Warsaw Convention also to carriage of passengers within the boundaries of Israel. Section 15 of the Act provides that, notwithstanding any other law, the period in which the cause of action shall expire be extinguished under this Act shall be determined by the Warsaw Convention. Since the Warsaw Convention only applies to carriage of persons for reward the dispute centered around the question whether it was enough that a reward was paid by the pilot to Aerobat. The families of the deceased argued that since no payment was requested from the passengers then the Warsaw Convention did not apply. The judge held that the requirement of Article 3 of the Hague protocol requiring that a ticket be delivered to passengers containing notice that the liability of the carrier may be limited by the Warsaw Convention is irrelevant at this stage since the judge was not dealing with the liability question but only whether the action was time barred under Article 29(1) of the Warsaw Convention. Interestingly, Aerobat tried to rely on Fellows of Herd vs. Clyde Helicopters [1997] 1 All ER 775, in which the House of Lords held that the Warsaw Convention applies to an accident in which a police officer died while on board a helicopter which was rented by the regional police from Clyde Helicopters. However, the judge did not accept that the decision in the House of Lords case was relevant since the contract between the police and Clyde Helicopter did mention that Clyde will be required to transport policemen and equipment as determined by the police. The judge held that the pilot rented the aircraft for his personal use or for transporting the aircraft to Haifa. There was no contract for carriage of passengers and the reward paid by the pilot to Aerobat was not related to the purpose of the flight or the number of passengers. Therefore the Warsaw Convention did not apply to the accident and the claim was not time barred after 2 years.

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