It should be emphasized once again: the passenger is "under its custody" and the airline cannot exempt itself from a general future obligation to indemnify at its discretion. The law states that the airline must provide passengers with assistance services free of charge. Saying that they will pay and then check the receipts and reimburse them at her discretion - even if her intention is that not every payment is covered where it is a luxury, for example - leaves a cloud in the air, and how can it be said that these are "free of charge" assistance services when they pay and "accompany" her and then are supposed to deal with the hassle of finding a hotel - in the pursuit of getting their money back? While in emergency situations, the Minister of Transportation was given the authority to set easements in the obligation to provide assistance services and compensation, here the legislature did not relax the provision of assistance services where it is a matter of canceling a flight in order to avoid desecration of the Sabbath or holiday. In any case, the law requires the company to provide - active action - the actual assistance while waiting and not to transfer the financial and operational burden to the passenger. Thus, to provide such vouchers or direct service for food and drink while waiting at the airport, and to stay and transportation. Requiring the passenger to pay himself is contrary to the spirit of the law, which sanctifies the passenger's accompaniment and assistance and focuses on active action on the part of the airline and investment on its part and time, even if the defendant chose that the passenger should pay for himself in lieu of the actual provision of food and drink or vouchers, then it is not impossible that there are situations in which it should have provided him with money in advance where he does not have it. And where it turns out that this was not enough - to indemnify retroactively for the difference, after examining the receipts, and not to send him on his way to pay everything out of his own pocket when it is also a foreign currency. Therefore, the requirement to provide the service by the airline is in advance, even if the passenger can pay for a place where he is forced due to the lack of a response from the company. This is the default.
- Moreover, a review of the Knesset deliberations shows that when the legislature intended reimbursement of expenses, it explicitly stated "reimbursement of expenses" and in any event, where it intended reimbursement of expenses or funds paid, it also defined it as "reimbursement of consideration", and this was anchored in the law with reference only to the flight and travel to the destination in the same context in which reimbursement of expenses was discussed. Section 3 of the Law lists a series of benefits that are within the scope of the operator's duties, and in the context of hotel accommodation, communications, transportation and food services, there is no reference to the refund of consideration, as opposed to a ticket, and only in the case of "refund of consideration" in this context, an extension of payment is given, even in writing. In other words; The legislature has used the word "restitution" several times in the Aviation Services Law and not once with regard to hotel accommodation, communications and food. With regard to transportation services to the hotel where the passenger is entitled to accommodation at the hotel - even there he did not take the action of "restitution", i.e., that it must be provided in practice, as opposed to the cases found in a closed list listed for example in section 3(b) where he did use the words "restitution", whereas in the context of the benefits regarding flight cancellation, "restitution of consideration" was written only as an alternative to an alternative flight ticket, and in the same breath the additional benefits regarding accommodation in the hotel were presented. Communications and food - so that the legislature did not recognize the defendant's interpretation as stated in its summaries that consideration can be returned later and in writing than when it intended to return consideration, and later, in writing - it knew how to state this explicitly in section 3(a)(2) - "restitution of consideration in the amount paid for a flight ticket, including any payment paid for the flight ticket... A flight operator or organizer will refund the consideration to the passenger within 21 days from the day the passenger... Contact him in writing" - to teach you that assistance services regarding food, communication, hotel transportation services and hotel accommodation should be provided in real time. Not only that. When the legislature refers in the law itself to reimbursement of expenses retroactively, as opposed to the provision of real-time assistance for transportation services, it clarifies this explicitly (see collective dispute (4) - "he will also be entitled to reimbursement of expenses due to transportation to the same airport", and if the defendant pins his hopes on the term "eligible", then both here and here he used the term "eligible", but when he wanted to say "entitled to reimbursement of expenses", he would have said, Hence the distinction as opposed to hotel shuttle services that must be provided in real time, and not as "reimbursement of expenses". It is interesting that the defendant considers in its view (although in our case it is necessary to examine whether this was the case and not only as the view of its representatives, including the legal counsel) that "restitution of consideration" with respect to any type of benefit constitutes compliance with the provisions of the law and therefore retroactive indemnification is sufficient for all of these, but does not propose "restitution" when required by the legislature within the framework of these benefits and also imposes in its perception the alternative flight that it operates. And then she argues that where they boarded her flight, they are prevented from claiming a refund when she did not give them any other option, as required by the legislature - according to the passenger's choice. Her argument in her summaries that in any event it has not been proven that any of the plaintiffs chose to refund consideration instead of an alternative flight ticket, and that the realization of the alternative flight cancels the entitlement to refund is erroneous in its basic concept, since the burden is not on the passenger to prove that he would have chosen to return consideration. The plaintiffs' argument is not that they should be reimbursed for consideration even though they flew on the alternative flight, but that they were not offered the choice as instructed by the legislature. A statement that if a passenger had chosen to return consideration, then he should have addressed the defendant in writing, with reference to section 3(a)(2) of the Law, is irrelevant to her obligation to offer the option. According to her, the passenger was supposed not to fly and then ask for a refund in writing, but if he did not fly, she would claim that she reserved a seat for him, so it turns out that he must act proactively and ask for restitution and not fly on the alternative flight, but how did he know what he had to do and is there such an option if she does not inform him when the legislature imposed it on her and not on him? It is clear that he will not ask for a refund if he has already fulfilled the flight that he operated and determined for him as a fait accompli. We'll come back to that.
In any case, it should be emphasized once again that with regard to the rest of the benefits, the legislature did not take the alternative of restitution from the operator to actually provide - this is the default - the benefits regarding food and hotel accommodation. The verb "to host" is an active verb, as is "to provide assistance", which means to extend, to lend a hand - literally - while actively participating in making it easier for someone, since the passenger's self-financing of the assistance services as an actual escort for the airline does not involve active participation on its part and certainly does not make it easier for him to be taken care of in real time. Giving money in advance for the purchase of food will be considered as providing assistance, as long as there is an active action on the part of the operator - for example, not serving a direct dish but through a voucher, as opposed to when the passenger will pay for himself at the airport and is required to collect and maintain receipts for additional action on the part of the passenger when he arrives in Israel and works with the operator in order to receive his money back. The burden, even on the literal level, is on the operator to take care of and assist the passenger who is in distress for hours at the airport and not through retroactive indemnification, especially since some of them are unable to take care of themselves, and then this means that they will not receive assistance services when they do not purchase anything and will not receive anything when they return to Israel after purchasing nothing (see also small claim 41449-09-17 David Kadosh v. El Al (February 5, 2018), Paragraph 25) - and not the transfer of responsibility and burden, in practice, to the passenger.
- And on the merits of the matter.
A review of Appendix D to the statement of defense and the defendant's affidavits concerns a report filled out in real time by the station manager in New York, Mr. Radomsky, dated October 20, 2019, describing the course of events for the time being, reveals the following: