And what is the meaning of the striking? The flight at the end of the day departed New York on the eve of the second Yom Tov of postcards, which is a holiday day. El Al claims that it observes Shabbat and holidays and that its customers who observe Shabbat are not only in Israel, but the entire Jewish people, and this means that the defendant actually flies its passengers on the holiday (even if on this flight the station manager stated that 99% of the passengers were Israelis). Either way, this is a casual matter since the travelers certainly do not complain about the fact that they were supposed to stay an additional day (the second day of the exiles) beyond the day they had already left, to which they were complaining. However, still, according to this line, it would have been appropriate for a Shabbat-observant company to take the safety gap that even with a reasonable delay in the flight, it would land at least two or three hours before Shabbat, and even if, as stated, it can and does not change the outcome, at least it indicates its intentions in the sense that it "did everything in its power" - even if it is not obligated by law - to avoid a situation of flight cancellation due to fear of desecrating Shabbat or holiday when it landed 50 minutes before the start of the holiday or Shabbat does not meet the test of reasonableness and proportionality in such a way that any delay, whatever the reason (even the most marginal reason, whether a delay in loading equipment, a passenger's delay, a slight malfunction in the baggage, a negligible technical problem or an unexpected medical event) may lead to the flight taking off or being found in the air on Saturday and may cause a cancellation which, as aforesaid, obviates the need to show that it has done everything in its power to prevent this result and places the passengers at a real and inherent risk of canceling their flight. And this without any response of compensation. This is when the test, in my opinion, which should have been the one that "did everything in its power" both in relation to the prevention of a malfunction and in relation to the exemption itself of preventing the desecration of Shabbat or a holiday in order not to put itself in a situation of desecration of Shabbat or a holiday, when, as stated, there is an inherent fear of cancellation in any situation since all that is necessary to avoid such desecration has not been done, including setting the time of landing on the flight schedule from determining a landing less than an hour before the start of a Shabbat or holiday is not the same as landing three hours before the start of a holiday The beginning of Shabbat, if only in terms of the range of cases in which mishaps can occur and the ability to deal with them and still get the flight on the way and land before the start of Shabbat or the holiday, in such a way that the test of expectations that governs section 6(e)(1) of the Law will also apply in relation to a collective dispute (3). It is possible and in this framework that the test of expectations can be expanded as the plaintiffs' approach if it had warned its passengers in advance and gave them the ability to "knowingly" choose when it advertised in advance during the sale of the tickets that it was a company that observed Shabbat and holidays, and in particular where the landing was expected to be close to Shabbat, a publication that could have served in its favor as part of the fabric of evidence to prove where it was required to prove that it had done "everything in its power" to avoid desecration of the Sabbath or holiday, and thus to close the door against a claim that this is a material detail in a transaction that is "liable to be misleading", i.e., has the potential for deception (when the test in the Consumer Protection Law is a probabilistic test and not of actual deception, and the question arises as to whether this should be stated positively as part of the discovery of the terms of the cancellation of a transaction, or in the framework of a discovery document where it is a remote sale transaction that was preceded by a marketing action on the part of the defendant, even if it is not on the part of the consumer). Either way, even if you conclude that this is the proper test, this is not the common test. It appears that the exemption inherent in a collective dispute (3) is similar in terms of its wording to the exemption inherent in a collective dispute (2) in relation to a strike, which imposes a low burden on the defendant where it is a protected strike (insofar as it is not protected, the conditions that actually apply are those of section 6(e)(1)) and as such does not stipulate that it must do "as much as it can". Section 6(e)(3) of the Law, in contrast to Section 6(e)(1) of the Law, does not apply the expectation test.
- In a small claim 8037-08-14 Paz Dor El El v. El Al Israel Airlines in a tax appeal (October 23, 2015), two claims were heard concerning the cancellation of an El Al flight from Israel to Mumbai, India, when the flight was scheduled to take off from Israel on February 7, 2014 at 05:15 Israel time and land in Mumbai on February 7, 2014 at 16:40 local time. In that case, the flight was cancelled and the defendant provided the plaintiffs with an alternative flight to India via London and from there with a connecting flight to Mumbai, which landed on February 8, 2014 at 11:25 local time, about 19 hours late from the intended landing date of the original flight. Prior to the cancellation of the flight, the defendant announced a delay of about two hours and about half an hour after the scheduled departure time of the canceled flight, announced that the flight would take off at 07:15, but at 06:38 it announced the cancellation of the flight. There was no dispute between the parties that if the original flight had taken off at the alternate time, it would have reached its destination about two hours after the beginning of Shabbat. The dispute discussed in the judgment is whether, in these circumstances, the plaintiffs are entitled to statutory compensation and punitive compensation, as well as to reimbursement of their expenses in light of the defendant's claim that she acted in accordance with the law and that she was protected by section 6(e)(3) of the Law, since the cancellation of the flight was in order to avoid the desecration of the Sabbath. In that case, the plaintiffs claimed that the flight was canceled not for operational reasons as represented by the defendant, and then the flight was postponed to an alternative time that would have led to the desecration of the Sabbath, and therefore no direct flight was flown at that alternate time, but the flight was canceled due to the defendant's negligence, since the flight was canceled, due to the fact that the pilot on duty was disobedient. I will note that in that case, the take-off time was postponed due to claims for operational reasons, and then in fact it was canceled due to the fear of desecration of the Sabbath. In our case, the practical significance was the postponement of the departure time due to a malfunction, when it is not known when the flight will take off, but due to the passage of time, it has already been canceled. A question arises as to whether there was room to find an alternative flight, including connecting flights, close to the original departure time, as was done there (and it is disputed between the parties here whether such an attempt was made), although in the test of the result the arrival there was delayed to the point of canceling the flight. In any event, in that case, the defendant claimed, as described in the judgment, "that the flight did not depart on time due to 'operational circumstances', after the flight captain reported to the control center that he was not feeling well and would not be able to get to the flight. The defendant claims that she worked vigorously to summon a substitute pilot for the flight, but under the circumstances that were created, the flight would have led to a landing after the beginning of the Sabbath and the desecration of the Sabbath. So at 06:38, in the midst of the process of allocating a replacement pilot, when it became clear that the takeoff would lead to a landing in Mumbai after the Sabbath, the flight was canceled. According to the defendant, if it were not for the Sabbath, the defendant would have been able to arrange for a replacement pilot and take off within a delay of less than 8 hours."
In our case, there is no dispute that the flight was canceled even if it was not 8 hours after the scheduled departure time, and the defendant also does not dispute the plaintiffs' entitlement to benefits under section 6(a) of the Law. The main dispute in our case is the entitlement to statutory compensation. The court in the Paz Dor El case ruled that the defendant had proven that the flight was canceled in order to avoid desecration of the Sabbath when landing at the destination port, and ruled as follows: "It therefore follows that a delay of one hour and forty minutes at the time of departure from Israel of the canceled flight is sufficient for the landing in India to take place on Shabbat. Thus, the defendant's announcement at 06:38 Israel time of the cancellation of the flight scheduled to depart at 07:15, two hours after the original departure time, was to avoid the desecration of the Sabbath at the time of landing. Therefore, the defendant has the defense of section 6(e)(3) of the Law, and the plaintiffs are not entitled to monetary compensation under the first addendum to the Law. The defendant, being the national company of Israel, does not take off, does not fly and does not land on Shabbat, and the plaintiffs should have known this." The court also addressed the question, as in our case, whether it was possible to avoid reaching a situation in which one enters the same defense of flight cancellation in order to avoid desecration of Shabbat and holidays, as it put it: "Another question is whether the defendant acted as required to prevent the cancellation of the flight, and whether the defendant's conduct entitles the plaintiffs to compensation under the first addendum to the Aviation Services Law." In this regard, it was determined that the date on which the defendant notified the first delay in take-off was at 4:00 a.m. (about one hour and ten minutes before the original take-off time, about two hours and forty-five minutes before the alternative time that was also canceled - A.M.), when a notice was received from the control tender that the captain was ill. Although the defendant did not present the control center's notice, he chose to accept the testimony of the defendant's representative, according to which if the defendant had known earlier about the flight captain's illness, she would have informed the passengers not to come to the airport. Since the plaintiffs did not contradict this and did not prove that the defendant knew of the captain's illness prior to the date of its announcement of the first flight delay, this was accepted as a factual finding when the court clarified that it also did not find that it was reasonable for the defendant to bother the passengers to arrive at the airport just to announce the cancellation of the flight. With regard to the defendant's efforts to find a replacement crew upon receipt of the notice, the defendant claimed that since receiving the notice of the flight captain's illness, it had acted to find a replacement pilot among the list of drives in the control center and the placement of the drives is subject to a series of tests, including checks of flight hours, availability and consent, but it did not present the procedures for placing the drives on which it relied, and therefore, according to the case law, The defendant's refusal to present these procedures works against it and creates a presumption that these procedures, had they been presented, would have worked against it. In this regard, the court ruled that the defendant had an hour and forty minutes to find a replacement team, "and even though this is a very tight period of time, the defendant should have prepared accordingly and made sure that the replacement drive team was ready for the call, and not to start from the wrong starting point because it has 8 hours of delay in which it is immune from compensation. However, this does not grant the plaintiffs the right to receive compensation under the first addendum" (emphasis not in the original - A.M.). It should be noted in this context that while the court examined the defendant's conduct and her efforts upon receipt of the information that, as far as she was concerned, prevented the flight from taking off on time, I am of the opinion that the proper examination is not only how she acted as soon as she received the information that there was a malfunction in the plane with a forward-looking view, but also what efforts she showed and how she conducted herself prior to the malfunction in order not to put herself in the situation in the first place - in retrospect. In any case, in the test of reality, it seems that the result is uniform and the defendant is exempt from awarding statutory compensation, and as the court in the Paz Dor El case put it well , the matter will be presented as follows: "According to section 6(a)(3) of the Law, a passenger entitled to compensation as stated in the first addendum is "a passenger who has been issued a flight ticket for a canceled flight". A canceled flight, as stated in the definitions section (section 1), is a flight that did not take place, or a flight that took off at least eight hours later than the date stated on the flight ticket. On the dates on which the defendant announced a delay in the flight take-off time, eight hours have not yet passed from the original departure time, so we are not dealing with a "canceled flight" as defined by law. On the date when the defendant announced the cancellation of the flight, the defendant was protected by section 6(e)(3) of the law, since the defendant proved, in light of the beginning of the Sabbath in India, that the time of landing of the flight was after the beginning of the Sabbath in India, so that the flight was canceled in order to avoid the desecration of the Sabbath. Although it can be said, and I do not determine that this is the case in the case before me, that it is unreasonable to assume that the defendant, who according to its procedures does not take off, fly or land on Shabbat, issues flight tickets to destinations where the time of landing is close to the time of the beginning of Shabbat and is not arranged in advance with a crew that has been replaced, within a reach range that allows the flight to take off and land before the beginning of Shabbat, this does not grant to a passenger whose flight was canceled due to the beginning of Shabbat. Even in such a situation, compensation according to the addition to the law. While section 6(e)(1) of the law exempts a flight operator from paying compensation under the first addendum if he proves that "the flight was canceled due to special circumstances beyond his control, and even if he had done everything in his power - he would not have been able to prevent its cancellation due to those circumstances", the exemption from payment of compensation in the addendum under section 6(e)(3) of the law "in order to avoid desecration of the Sabbath or holiday" does not impose on the flight operator the duty to prove that "even if he had done everything in his power - not could have prevented the cancellation of the flight due to the Sabbath, as stated at the end of section 6(e)(1) of the law. In light of this conclusion, I am not required to examine the defendant's efforts to locate a replacement pilot."
- Another case was heard in a small lawsuit 15168-11-17 Rekach et al. El Al Israel Airlines in a tax appeal, where the plaintiffs discovered that their flight was delayed due to a malfunction in the plane, a delay that lasted for 7:25 hours. After the malfunction was corrected, the defendant announced that the plane's landing date at the destination, South Africa, was after the start of the Sabbath, and in view of the fact that it was prohibited from flying during the Sabbath, the flight was canceled. The plaintiffs were supposed to arrive at their destination on Friday at 8:00 p.m., but arrived at 10:00 a.m. the next day, after boarding an alternative flight. There is no dispute that the malfunction was fixed after 7:25 hours and the flight was canceled in order to avoid desecration of the Sabbath. The defendant claimed that the plaintiffs were not entitled to compensation resulting from the cancellation of a flight as a result. The court accepted the defendant's argument that the plaintiffs were not entitled to compensation due to the cancellation of the flight due to the beginning of the Sabbath, when it was able to prove that the landing at the destination fell within the boundaries of the Sabbath. The court referred to the case of Paz v. El Al, in which the claim was dismissed in light of the defense by virtue of section 6(e)(3) of the Law. She also referred to a small claim 24938-12-26 Zemach v. El Al (September 30, 2017), and therefore, the defendant was able to prove that she had the defense set forth in section 6(e)(3), and therefore I did not find it possible to determine whether she also had the defense set out in section 6(e)(1). Therefore, the plaintiffs are not entitled to compensation for the cancellation of the flight."
This is also the case in small claim 48351-01-18 Ruth Madmoni v. El Al (June 17, 2018), which addressed, inter alia, the defense in section 6(e)(3) of the Law and held that this establishes an exemption from the payment of statutory compensation in itself.