The same is true in a small lawsuit 24938-12-16 Zemach v. El Al Israel Airlines in a tax appeal (September 3, 2017), where the flight took off to its destination more than eight hours late, but the defendant argued in its defense that it was exempt from paying monetary compensation to the plaintiffs in light of the two exceptions that appear in a collective dispute (e)(1) and (e)(3). The defendant's representative testified that there is no dispute that in that case they could not have exhausted all eight hours due to the fact that a delay of more than two and a quarter hours from the departure date would have caused the flight to arrive in Israel after the Sabbath and the plaintiffs were flown to Israel on an alternative flight by the defendant on Saturday night, and states that proving the existence of the exception that appears in a collective dispute 6(e)(3) of the Law is sufficient to exempt it from paying monetary compensation to the plaintiffs, and in these circumstances there is no need to discuss the exception that appears in section 6(e)(1).
However, the opinion was expressed that even if the flight was canceled for religious reasons (in order to prevent landing on Shabbat), the entitlement to compensation is examined according to the question of whether the original flight is considered a "canceled flight" (a delay of more than 8 hours). According to this line, if the cancellation was due to a technical malfunction that led to a timetable that did not allow landing before Shabbat, the company must prove that the malfunction itself was a "special circumstance" that was beyond its control. In other words, in order to benefit from the exemption, the airline must prove that it has taken all reasonable measures to prevent the cancellation, including preparing for malfunctions, providing spare parts or finding alternative solutions for transporting passengers at a time that does not conflict with the beginning of Shabbat. In accordance with this approach, the airline must prove that the cancellation stemmed directly from the need to avoid desecration of the Sabbath and not from negligence in preparing for mishaps. If the malfunction was detectable early or the repair time was reasonable (such as less than 8 hours) and the company chose a tight schedule that does not allow for a safety margin for expected malfunctions, it may not be able to meet the protection, and therefore if it takes a commercial risk in scheduling flights close to the beginning of Shabbat or holiday, then a routine malfunction will not entitle it to Shabbat or holiday protection if it is not proven that everything in its power was done to prevent the malfunction or the cancellation. In other words, it is not enough for the defendant to claim that a technical malfunction occurred in order to exempt itself from the obligation to compensate, but it is necessary to prove under an objective test that a reasonable airline "did everything in its power" to prevent the cancellation, including preventing the malfunction, especially when the risk of flight loss due to the start of the holiday is real and known in advance (see and compare: Civil Case 46400-07-17 Eli Avni v. Sun d'Or International Airlines in Tax Appeal (July 18, 2021)). Otherwise, the restriction may become an escape hatch that allows the flight operator to evade its obligations to passengers.