The court summarizes the issue as follows:
"In my opinion, the interpretation of the protections set forth in section 6(e) of the Aviation Services Law should be restrictive. I am of the opinion that in order to view the defendant as entitled to the protection of the law, it must show that apart from its attempt to correct the malfunction and to hold the flight as late as possible, it tried to find alternative solutions for the transportation of the passengers on time, including by attempting to place them on other departing flights or to lease an aircraft and operate the flight through the defendant. Of course, this duty imposed on the defendant is a duty that must be examined in the circumstances of the case. In the present case, since it has not been proven that this is a rare and unexpected malfunction, since it appears that the malfunction was discovered already during a previous flight segment and since it was clear that there was a reasonable possibility that the repair of the malfunction would take many hours, which would not allow the aircraft to reach Israel before the arrival of the landing curfew, the defendant should have tried to find another solution that does not involve the repair of the technical malfunction alone.
The defendant, as stated, was content to claim, in a comprehensive and unsupported manner with evidence, that we were dealing with an unexpected and rare malfunction, that it was not possible to repair it in time due to the landings curfew, and that "many attempts were made to find a solution". Settling for such a low level of proof, without the requirement to prove the absence of reasonable alternatives, will render the law, which is a clear consumer law, meaningless."
The court referred to the judgments that were brought and examined the case before it against the other cases with regard to the nature of the technical malfunction, with some defining a circumstance as unforeseen and uncontrollable, and some of which did not discuss the nature of the malfunction at all. This, I will note, is apparently due to the fact that the courts considered this to be a sweeping exemption without any connection to the examination of the nature of the malfunction and therefore there is no discussion of the nature of the malfunction and whether the airline did "as much as it could" and that there were "special circumstances" under a restrictive interpretation as was done in relation to section 6(e)(1) where "the time has come" that it is understood that if they continue to deal with the malfunction then they will enter a situation of desecration of Shabbat and holidays. While the court in the Avni case held the opinion that the sweeping exemption cannot be enjoyed in any case if the airline did not prove the conditions that are in fact set out in section 6(e)(1) and that the sections should be read together as a single entity. Indeed, on the basis of the Court's conclusion in the Avni case, that in order for a defense to be established by virtue of section 6(e)(3), the defense by virtue of section 6(e)(1) of the Law must be proven simultaneously in such a way that the two are connected to each other and are inextricably linked, it ruled that "in light of all the reasons detailed above, I determine that the defendant did not prove the conditions of the defenses set forth in sections 6(e)(1) and 6(e)(3) of the Aviation Services Law. Since the flight delay exceeded 8 hours, the plaintiffs are entitled to compensation as stated in the law."
- I will admit that I am of the opinion that in such circumstances the result in the Avni judgment is just, and the manner in which the court chose to distill the legal arguments is convincing. However, a review of the explanatory notes to the law and the discussions that took place in the Economic Affairs Committee prior to its first reading and then to the second and third readings show that the legislature's intention was to isolate the protection given to an airline where it cancels a flight in order to prevent the desecration of the Sabbath or holiday, and that it is an independent and sweeping exemption regardless of its ability to prevent it from entering a state of cancellation due to the desecration of the Sabbath or holiday - whether in relation to the malfunctions that could have been discovered or by means of a wider time interval of the landing dates from which the departure dates are derived, which is a security factor, whatever the motives will be in the manner of enacting that protection.
As for myself, I am of the opinion that although she is obligated to prove that she canceled the flight in order to avoid desecration of the Sabbath or holiday, this does not exempt her from any effort to remove the flight as soon as she discovered the malfunction, and therefore if she had been informed upon the discovery of the malfunction that she was canceling the flight when there is still a period of time that allows her to try to repair or act before she enters the Shabbat protection, then she would not have established this protection for herself. It must show efforts in the sense that it tried to cancel the flight before it was canceled in order to prevent the desecration of the Sabbath or holiday (as opposed to showing anticipatory efforts that could have disclosed in advance about the malfunction), but it did not succeed in the time period until the flight took off would have led to the desecration of the Sabbath or holiday, and not that it did not try in advance to cancel the flight and deal with the delaying factor due to the short period of time that she was the one who determined for herself in advance, that she expected that it would not be enough to anticipate it, because there could be a delay that would lead to the cancellation of the flight Due to the same period of time. In our case, there is no dispute that the passengers were already sitting on the plane and were waiting at the time of the repair, which had begun earlier, and an attempt was made to repair it, but it was unsuccessful in the time period until the date of the determination that the flight should be canceled in order to avoid the desecration of the holiday. Even if it could have been repaired in less than eight hours or not, the timing of the repair has no purpose than the need to cancel the flight due to landing on the eve of a holiday. As stated, the question arises whether the malfunction could have been prevented in advance (and the plaintiffs do not claim this), but the test is ultimately the causal connection and not the malfunction that caused the flight to be canceled, but rather the passage of time taking into account the landing in Israel about 50 minutes before the start of the holiday, that is, the reason for canceling the flight is to prevent the desecration of Shabbat or the holiday, and there is no prohibition on repairing for an hour or two as aforesaid in a way that could have taken the flight out. Therefore, the question that can be raised in the framework of the burden of proof regarding the application of the exemption in a collective dispute (3) is whether everything necessary was done to avoid desecration of Shabbat or a holiday, with a view to the time of the incident when a maintenance person was invited to deal with the malfunction quickly in order for the aircraft to depart for its destination. Expanding the test in such a way that it must prove what it could have done in advance in order to avoid entering a situation that would lead it to cancel a flight in order to avoid desecrating the Sabbath or holiday raises a great difficulty. Moreover, it should be noted that in this case, the fault could have been discovered only during the loading of the cargo. This is not a case in which the malfunction could have been discovered even earlier, with the preparation of the plane even before loading luggage and loading passengers, and therefore the summoning of a maintenance person was also required earlier, and not in that "dangerous" delta, in which a maintenance person must be contacted, whose arrival at the scene can only take time close to that borderline period of time that led to the cancellation of the flight, even before the repair begins.
- Therefore, the obvious conclusion is that the legislature allows the airline the exemption without reservations, except that the burden of proof is on it - but with regard to the fact that the flight could have landed after the beginning of Shabbat and not with regard to proving special circumstances and that it did everything in its power to prevent them and get the flight on its way as determined in section 6(e)(1) of the Law, when it is not a matter of subordinating a collective dispute (3) to a collective dispute (1), but rather independent alternatives. The legislator also knew how to specify the cumulative conditions for granting an exemption, as he did in a collective dispute (1), and where he limited and determined "in order to avoid desecration of the Sabbath or holiday", he expressed his opinion that it should not meet the standards of a collective dispute (1). The legislature's intention not to apply the same standards that apply in relation to a collective dispute (1) to the protection by virtue of a collective dispute (3) can be learned by a study of the explanatory notes to the law and the minutes of the Economic Affairs Committee in the preparation of the proposal for the first, second and third readings, as will be clarified. Admittedly, in my opinion, this allows an airline to use the law as a stump to dig into it in bad faith, but it is permitted to do so. In other words, even if there is a sense of discomfort that the defendant is aware of the structure of the risk that it itself creates, when it admits that these are scheduled flights that depart regularly, including landing near the beginning of Shabbat, the dates of which are known to the defendant in advance and the scheduled take-off time and the scheduled landing time in Tel Aviv were coordinated "many months before the flight date and were approved within the framework of seasonal slots, which are coordinated by the schedule department" and that the flight was ready for take-off at the time of preparation and was supposed to land in Tel Aviv about an hour before the start of the holiday. as planned, as known in advance" (see paragraphs 9 and 10 of the affidavit of Alon Lavie, head of El Al's control division, head of the operational division responsible for the inclusion of the event, a witness on behalf of the defendant), and in response to a question in the course of his cross-examination whether El Al knowingly took into account that she was buying a slot for the flight and selling it knowing that a delay of less than an hour would lead to the cancellation of the flight, he replied "absolutely" (and so did Mr. Avi Zamir testify that she knew when the slot would take place in relation to the holiday), 40 minutes and still purchased it) - nevertheless enjoys a legal qualification that allows it to cancel the flight without the obligation to compensate, even if this creates a feeling that the exemption mechanism may in fact serve as a lever that exempts the defendant from liability precisely in cases where it had the commercial discretion not to schedule the flight so close to the beginning of the Sabbath or holiday. The language of the law is clear. The legislature explicitly determined that the fact that the flight was scheduled to take place on Shabbat due to a delay or malfunction was sufficient to exempt the flight operator from paying the compensation set out in the first addendum. The legislature even considered this mechanism in the explanatory notes to the law and clarified that the very fact that the flight will take place on Shabbat establishes the exemption. Therefore, since in our case the delay led to the flight terminating its journey after the holiday in Israel, and given that there is no additional requirement imposed on the defendant under this limitation, its conduct does not constitute a breach of the Aviation Services Law. It should also be noted that an allegation of negligence in determining a flight schedule, such as scheduling a landing close to the time of the airport's closure (an example that was brought in the testimony of the head of the control division with the defendant, as a comparison to the Shabbat restriction that was called a "wall" that does not allow the flight to be carried out where there is a malfunction that delays the take-off time) or that this may be examined under the Aviation Services Law under the question of whether there were "special circumstances that were not under the control of the operator" under section 6(e)(1) The law is irrelevant from our conclusion that it is not required to meet the element that requires the existence of "special circumstances that were not under the control of the operator", and in this context it should already be noted that in any case it cannot be sued for tort negligence due to the uniqueness of the cause and where it was determined that it was exempt from paying statutory compensation when the flight was canceled "by law", it cannot be obligated to substitute compensation for mental anguish, both in view of the recognition of the legitimacy of the cancellation itself in those circumstances and for the same reason as the principle of the uniqueness of the cause, As will be detailed.
- It is interesting to note that the original bill made no reference to protection for an airline where the flight was canceled in order to avoid desecration of the Sabbath or holiday. According to the original proposal (P1374/18), the only defense was set out in section 7(c)(3), according to which an exemption from granting statutory compensation would apply where "the flight operator or tour organizer proved that the cancellation of the flight stemmed from special circumstances that he could not have foreseen in advance, and even if he had done everything in his power - he could not have prevented them" (Compensation and Assistance to Passengers Due to Flight Delay or Postponement Bill, 5769-2009).
In a discussion in the Economic Affairs Committee on January 20, 2010 on the Aviation Services Bill (Compensation and Assistance for Flight Cancellation or Change in its Conditions), 5772-2011 (the second session out of six meetings before the bill was placed on the Knesset table for first reading), Chairman Ofir AkuILS asked El Al's position on the issue of Shabbat, which sought to add the exception regarding eligibility where there is a flight cancellation. The latter replied through its VP of Operations: "El Al has decided and chose to keep the Sabbath. We think that the law should take Shabbat into account like the closure of an airport, i.e., the postponement of a flight due to the sanctity of the holiday and Shabbat should be excluded from the law in a direct and clear manner, in order not to harm the public, which is 25% of our passengers."