MORAL DAMAGES IN TOURIST MORAL DAMAGES IN TOURIST CASES IN ISRAELCASES IN ISRAEL

By Dr. Jose Fosman

(President Emeritus of IFTTA)

Advocate Notary, & Registered Mediator

94,Yehuda Halevi St.

Tel Aviv

Portugal 10-14/10/2007

 

THE FRAMEWORK OF THE LAWTHE FRAMEWORK OF THE LAW

1.1 Contracts Law (Remedies for Breach of)-1970. Art.13:

Damages for non Monetary Losses

1.2 Air Transportation Law-1980. Art. 2 and 3: Responsibility in International Flights, according to Warsaw and Le Hague Conventions (Warsaw System)., and any claim not according

to them, will be rejected.

1.3 Warsaw System: Art. 18. Damages to Goods and Baggage during the transportation by Air. (in charge of the carrier).

Art. 25* Carrier willful misconduct . (Warsaw)*Recklessly and with knowledge that damage would probably result (Hague).

Art. 17. DEATH or WOUNDING OF PASSENGERS (on board, embarking or Disembarking.

1.4. Israel has not yet ratified the Montreal Convention-1999

Derecho Preexistente.

Nuevas Leyes (Ordenanzas: Companias, Letras de Cambio, Seguros, Derecho Penal, etc.)

Laguna Jurídica: Derecho Ingles

2) Sort of cases

2.1 Cases in which the claim is for aspects concerning Tourist Services (not Air Transportation)

2.2 Cases in which the claim is related to Air Transportation and Baggage in which the Conventions (Warsaw System) applies.

2.3 Cases in which the Conventions doesn’t apply

 

CASES DEALING WITH TOURIST CASES DEALING WITH TOURIST SERVICES SERVICES

THE COURTS USE TO AWARD MORAL DAMAGES IN CASES IT THE COURTS USE TO AWARD MORAL DAMAGES IN CASES IT DEEMS FIT TO DO SO:DEEMS FIT TO DO SO:

Examples:Examples:

1) Ramla Small Claim Court (File 152/07) given on 22.7.071) Ramla Small Claim Court (File 152/07) given on 22.7.07

FactsFacts: Hotel Opening.Special attention for Children: “Kingdom for children” : Hotel Opening.Special attention for Children: “Kingdom for children”

(closed for reparations). Other Services given as promised.(closed for reparations). Other Services given as promised.MORAL DAMAGES: 400 I.Sh. (some 100 U$S for each plaintiff) (Price paid 1.645.- for the MORAL DAMAGES: 400 I.Sh. (some 100 U$S for each plaintiff) (Price paid 1.645.- for the

Holiday)Holiday)

2) Tel Aviv District Court. File Permission to Appeal 2428/03 given on 27.2.072) Tel Aviv District Court. File Permission to Appeal 2428/03 given on 27.2.07

Facts: Holiday “Port Blue” in Turkey. Hotel full. Place Found. 7 Holiday Makers.

Upheld:

Moral Damages: 4.000.- I.Sh. (some U$S 1.000.-) for each plaintiff ( “spending time and stress”

CASES INVOLVING LUGGAGE AND PASSANGERS IN AIR TRANSPORTATION

  THE TREND: STICK TO THE PRECEPTS OF THE CONVENTIONS:

“ENTEBBE CASES”Accordingly: Applies the rules and limitations of the

Conventions• Example :• 1) District Court- Tel Aviv, Permission for Appeal 8927/94. Given on

13.1.94• Missing Baggage for 5 days. Small claims Court awarded Damages

according to the Conventions Limits and also moral damages. The District Court rejected.

• 2) Several cases in which the Court applied the Art. 25 of the Conventions and granted huge amounts of Money for damages for loose of Luggage

 CASES INVOLVING ALSO AIR TRANSPORTATION IN WHICH

THE LIMITS OF THE CONVENTION WERE NOT APPLIED:

Examples:

1) Jerusalem Small Claims Court 2746/07. Given on 9/5/06El Al religious couple due to fly Wednesday 7.2.07. Plain full. Could fly Thursday arriving Friday eve of Shabat.Flights Sunday and Monday also full. Flight on Tuesday 13.2.07 but asked to add U$S 366.- different price for this flight and also U$S 100.- for changing date of flight.El Al was condemned to return the extra money and awarded 300.- Sh. for moral damages, and also 200.- Sh. For Costs

2) Magistrates Court in Tel Aviv: 17747/05, Given on 9.5.06Charter flight from Tel Aviv, to Samara (Russia) with Samara Airlines.Return Flight cancelled, and not other flights to Tel Aviv Scheduled. Passanger bought a ticked from Samara to Moscow by train (18 hours) and flight ticked from Mosow to Tel Aviv.

Passenger bought a train ticket from Samara to Moscow (18 hours) and a Flight Ticket from Moscow to Tel Aviv.

Court awarded the full amount expended and also 5.000.- Sh. (some U$S 1.200.- for Loss of Enjoyment, moral damages.Not a case for Conventions or “delay” but a case of breach of

Transportation Contract

CONCLUSIONSCONCLUSIONS1)1) MORAL DAMAGES ARE AWARDED IN ISRAEL.MORAL DAMAGES ARE AWARDED IN ISRAEL.

2)2) IN CASES OF AIR TRANSPORTATION THE COURTS IN CASES OF AIR TRANSPORTATION THE COURTS FOLLOW THE LIMITATIONS OF THE CONVENTIONS, (No FOLLOW THE LIMITATIONS OF THE CONVENTIONS, (No Moral Damages) BUT APPLY ALSO ART. 25 OF THEM IN Moral Damages) BUT APPLY ALSO ART. 25 OF THEM IN

CASES OF WILLFUL MISCONDUCT CASES OF WILLFUL MISCONDUCT AND/OR RECKLESS AND/OR RECKLESS OF THE CARRIER.OF THE CARRIER.

3) IN CASES OF AIR TRANSPORTATION BUT NOT IN THE FRAMEWORK OF THE WARSAW SYSTEM, THE COURTS AWARDED DAMAGES ACCORDING TO THE ISRAELI LAW INCLUSIVE MORAL DAMAGES