For myself, I am of the opinion that the two provisions should be read together - the date of granting benefits and the non-granting of benefits should be subject to the legislature's determination regarding the date, and not only because it did not give but because it did not give on time. This is true in relation to assistance services, as opposed to statutory compensation (which is not expected to be given on the spot, in real time) that is not given within 45 days, which is not a benefit that can be classified as a "knowingly" non-provision of a benefit, and therefore no compensation should be entitled, for example.
- If so, the question arises whether it is possible to impose exemplary damages on the defendant by virtue of the fact that she did not give the plaintiffs the option of receiving a refund of monetary consideration in lieu of an alternative flight? Section 11(a)(1)(b) of the Law states that exemplary damages can be awarded for a violation of the provisions of section 6 of the Law.
As stated, I am of the opinion that in doing so the defendant did breach her duty and that exemplary compensation should be instituted against her, despite the failure to apply in advance in writing. Admittedly, the significance of the prior written requirement is in order to establish the "knowingly" component even in retrospect. However, the filing of the statement of claim and the defendant's insistence that it should not provide a choice between restitution and an alternative flight, and admits in fact as implied in its summaries that it did not offer monetary restitution - this qualifies the "knowingly" retrospective in a way that its decision was conscious (in analogy with the principle of relative nullity, but from the opposite direction, which shows that it legitimizes its improper decision and thus acted and would have acted in real time). The test is the defendant's conduct throughout the entire process, and not only in real time, which is indisputable, because no alternative of monetary restitution was offered vis-à-vis an alternative flight, even when it was alleged that it did not provide the alternative, it justified it by preventing the passengers from claiming it. Therefore, the written requirement in retrospect would not have changed this, and this is not a legitimate dispute that believed that this should exempt her from compensation for not granting the benefit to which the passengers were entitled in real time. To this, it should be added that she did not claim the absence of a written application prior to the filing of the claim as a condition for imposing punitive damages, but only in summaries, where this is sufficient to reject her claim because it is an extension of a façade that was not claimed in the statement of defense (even though the plaintiffs were given the right of reply and they did not deal with this argument that they did not file an earlier application or that it was an extension of the front). Of the 67 clauses in its summaries, only in section 41.4 does it argue for the first time with respect to a specific plaintiff : "It should be noted that the failure to contact the defendant in advance and the absence of exhaustion of proceedings prior to the filing of the claim does not establish entitlement to exemplary damages" and then in section 61, page 12 of 13 pages, it argues that in accordance with section 3 of the Law, a written preliminary application is required and that the plaintiffs have not exhausted the proceedings and have not filed as required by law. While it argues in its summaries that it should not doubt that the passengers in fact "consented" (when it is not clear how the consent component was validated if they were not given the right to make a conscious choice and awareness that the decision is in their hands when any stipulation under the Aviation Services Law is supposed to be in favor of the passenger), it "agreed" to stipulate that there was no prior application, even implicitly, by non-objection in real time, and in fact waived this argument and argued only on the merits of the matter whether there was room to impose compensation or not Due to the allegations of violation of the assistance services claimed by the passengers, and therefore the focus should be on the question of whether the benefits and assistance services were indeed provided as required by law. And to be precise; An airline is not exempt from paying compensation, for example, for failure to offer an alternative to refund consideration (or for example, for failure to provide assistance services) solely due to the lack of a prior written request, all the more so their claim for the lack of an earlier application is raised for the first time in a written statement of claim at the end of the proceeding. This is because these duties are actively imposed on her in real time, the date on which the acquittal arises, which is not contingent on the passenger's prior written application, and the justification stems from the fact that this is compensation with a punitive character intended to deter non-compliance with the provisions of the law.
- However, I do not believe that compensation, for example, should be imposed on the high standard. This is partly because they did not approach the defendant when this is a material demand anchored in the law and they are represented, but also because of the circumstances that I have the impression that would not have affected the passengers to choose this option, so that apart from the very choice as required by the language of the law, and also in terms of the purpose underlying the exercise of consumer autonomy to realize an informed choice, in the test of the result, the informed choice was for them to board the flight the next day and not to refund money for the flight ticket, and I was under the impression that it is doubtful that the passengers would have asked for their money back. It should be noted that even a person who expressed in his testimony a preference if he had been offered an earlier flight would certainly have chosen, since this is not the question that should have been asked if alternative flights had not been found, since this is a theoretical wish, but rather the question of whether he would have chosen to return the consideration if he had known about this possibility, and it seems that if he had preferred an earlier flight, then it can be assumed that he would have preferred the flight the next day over a financial refund, which could and means that he would not have found an earlier flight and flew After the scheduled flight the next day. However, it would have been appropriate for the defendant as an airline and carrier to be careful to fulfill its obligations under the law in real time. Indeed, it has already been ruled that there is no weight to the question of how the plaintiffs will act when the option of choice is presented to them. However, even if this point is not relevant to the imposition of compensation itself, it can be taken into account when determining the amount of compensation. It is possible that all the passengers would have chosen to fly on the alternative flight provided by El Al immediately after the end of the holiday. Thus, for example, it was ruled that on flights whose destination is Israel, it should not be assumed that any of the passengers would have asked for their money back if they had known that this possibility existed, since the logical solution for the passenger is to wait for an alternative flight and not to return his money, which means staying in the destination country without an arrival solution, and therefore in the circumstances of a return flight to Israel, the logical solution for the passenger is to wait for an alternative flight and not to return his money. which means remaining in the destination country without an arrival solution (see in this regard the Cuckoo judgment referring to Civil Appeal 45532-11-19 Molcho v. Astra Airlines above and Civil Case 63685-01-20 Tal Lev Ari et al. Sky-Deal Ltd. (September 14, 2022)). In the Lev Ari case, it was ruled that even if the flight operator violated this duty, there is no need to impose a sanction in order to comply with the provisions of the law. In that case, the passengers did not examine this possibility of restitution at all, and therefore there is no significance to the complaint in retrospect that they were not given the opportunity to do so, and the award of compensation due to insistence on the right to be informed in itself, and when no one examined any other option to reach the destination and did not claim that if he had been given the option, he would have acted otherwise, it does not lead to the enforcement of the law and deterrence against its violation. Therefore, they ruled out providing exemplary damages in this matter. However, with regard to the question of whether the benefit was granted in connection with the examination of the very imposition of compensation, for example, the burden is not on the plaintiff to prove that he would have made use of another alternative, but rather the burden is on the defendant to provide the additional option, and it is the plaintiff who chooses, when she must prove that she did so offer alternatives. In my opinion, where the legislature has established an option of choice - and the determination is according to the passenger's choice, when even if it could not provide an alternative flight with another airline, even though it tried and could have offered him an alternative flight with it on the following day, it should have offered to return the consideration (and then it could theoretically remain in New York for some longer) - the choice is his. Even in emergency situations in which the legislature has exempted the obligation to provide statutory compensation, it is not exempt from the obligation to inform of the possibility of receiving financial restitution or an alternative flight - according to the passenger's choice. In other words, even if the evidence does not indicate that any of the passengers claimed that they would have preferred financial compensation to an alternative flight, beyond the fact that this should not be attributed to the plaintiffs, who may not have known about this right in the absence of active notification from El Al of their rights, even if we are dealing with a return to Israel when the passengers all claim that they wanted to return to celebrate the holiday with their families and claimed the delay and its consequences, and it is not impossible that they would not have obtained alternative flights at all Earlier in terms of landing in Israel - they are not required to prove anything when it comes to a cogent provision that every stipulation is only for the benefit of the consumer as stated in the law (see section 17 of the Aviation Services Law). It should be noted that the defendant also does not need to prove anything where the legislature's defense arose which exempted it from the duty of statutory compensation. This is exactly the system of checks and balances that the legislature has implemented - sometimes it loses and sometimes it loses. As stated, I am of the opinion that this should be taken into account when determining the amount of compensation, but it does not justify a determination that because this is a flight to Israel, the defendant should be backed up and exempted from compensation, for example, despite the breach of the statutory duty imposed on it.
- Other Municipality Applications 44574-05-24 Arkia v. Kokia (February 13, 2025) The District Court accepted an appeal against the judgment of the Magistrate's Court, which awarded exemplary damages for a violation of section 6(a)(2) of the Law, when the Court of Appeal ruled that failure to inform the passenger of the possibility of choosing between an alternative flight ticket and refund of the consideration cannot establish grounds for awarding compensation, for example. This is because the obligation to inform passengers of the benefits to which they are entitled derives from section 14 of the law, which is not listed among the sections whose production allows for compensation, for example, under section 11 of the law. The language of section 11(a)(1)(b) of the Law states that the right to compensation, for example, arises as a result of the failure to provide the benefits and not as a result of a breach of the duty to inform about the benefits. A violation of section 6(a)(2) of the law may take shape where the passenger's right to choose was in fact denied, when the operator did not offer the passengers the right to choose between an alternative flight and the return of the consideration, and the court was convinced that if the passenger had known that he had the right to choose, he would probably have taken advantage of it and chosen otherwise. In our case, the plaintiffs hold the position that where the plaintiffs were not actively offered restitution in lieu of an alternative flight offer - the next day - constitutes a breach that entitles them to punitive compensation without proof of damage. According to this line, they had to prove that if they had known they had an option or if they had offered to get the money back, they would have chosen to do so, as most of them traveled on the same direct flight the next day, with the exception of a family for whom another flight was found. Given that the plaintiffs claimed in their statement of claim without exception that they wanted to come to Israel to celebrate the eve of the holiday with their families, it was not presented that there was another flight available, when the defendant was looking for such a thing, and then they could board it and have time to reach the eve of the holiday. This is because the significance of restoring the monetary consideration when they are abroad and wish to return to Israel, is in order to purchase an alternative flight earlier, but given that they were scheduled for a flight the next day, and it is a long flight of 12 hours that does not operate frequently during the day and even the following day, it is highly doubtful that they would have preferred to return the consideration, when an alternative flight was offered and the alternative date is reasonable. In my opinion, it would also be difficult to argue that the airline must also pay the difference for an alternative flight with a foreign airline, when restoring the consideration means purchasing a new ticket from moment to moment (unless you want to stay in New York for a few more days, but no one has claimed this, but the opposite). According to the line presented by the plaintiffs, this is an "automatic" payment. According to the District Court's ruling, it must be proven that they would indeed have preferred this option, and therefore, since it has not been proven, it does not entitle to exemplary compensation.
- However, other Municipality Applications 70166-06-25 (Arkia International v. Nir Ephraim) The District Court addressed the Cuckoo case and ruled that section 14 of the Law is a matter of the general duty of the flight operator and organizer to inform passengers in advance that if there is a case of refusal to fly, flight delay, flight delay or cancellation in the future, they will be entitled to the benefits set forth in the law. This obligation must be fulfilled by the operator and the organizer by displaying the information in the advertisements where they receive an audience and on their websites, and the holder of a license to operate an airport must fulfill it by placing signs at the airport - this is defined as the "duty to inform". Indeed, this breach of duty does not entitle him to exemplary compensation. In contrast, section 6(a)(2) applies after a specific flight has been canceled in practice. It imposes a duty on the operator to offer the passenger whose flight was canceled the choice between restoring the consideration and an alternative flight ticket, regardless of whether the operator informed its customers in advance, by means of required signage, that if a flight is canceled, they will be entitled to the benefits prescribed by law. In this regard, he ruled that "the severity of the two duties is not the same, since the breach of the duty to provide benefits is more severe than the breach of the duty to inform. For this reason, while the duty to notify under section 14 of the law is not included among the breaches that are entitled to exemplary compensation under section 11(a)(1), the obligation to offer a choice between restitution and an alternative flight ticket is also included. Therefore, we are unable to accept the determination that its breach cannot serve as a basis for awarding exemplary damages. In the present case, once the appellants have breached their duty to provide the benefits prescribed by law, inter alia, the obligation to offer a choice between restitution of the consideration and an alternative ticket, they may be obligated to pay exemplary compensation" (paragraph 22 of the judgment). While in the Kokia case it was held that compensation for not offering a passenger a choice between restoring consideration and an alternative flight ticket may be considered positively, in a case where the passenger is convinced that if he had known that he had a right to choose, he would probably have taken advantage of it and chosen otherwise, as he puts it, "where the operator has breached the duty to inform (with regard to the right to vote, and not merely informing about the benefits). and did not inform the passenger that he was entitled to choose between restitution and an alternative flight, but there is no argument that if the passenger had known about his right to choose, he would have chosen an alternative other than the one offered to him, there is no room for awarding compensation for example..." The respondents claim that the appellants did not offer them the option of receiving back the ticket they had purchased, instead of the alternative flight, and did not present them with other flight alternatives to Israel. However, in none of the affidavits submitted on behalf of the respondents was it claimed that if an alternative of restitution of the consideration had been proposed, the declarant would have chosen it, and it was not even stated that the declarant was not aware that he was entitled to demand the restitution of the consideration.... It is highly doubtful, however, that any of the respondents would have chosen to return the consideration. In these circumstances, we are of the opinion that even though the appellants breached the duty to inform under section 14 of the Aviation Services Law, it cannot be said that they breached section 6(a)(2) of the Law. In any case, there is no room to award exemplary damages in our case" - The District Court in the Arkia International case ruled that the determination that the passenger must prove that if he had known that he had the right to vote and had chosen something different from what was chosen for him, "there was no reference whatsoever in the language of the law or in its purpose. We have also not found such support in legislative history. The law requires the return of consideration or an alternative flight ticket, according to the passenger's choice. Since the respondents were not given the option of choice, the provision was not fulfilled according to its wording, and there was also justification for awarding exemplary damages. It is possible that in determining the amount of compensation, weight may be given to the question of whether and how the passenger would have exercised the right to choose, if such had been given to him, with the burden of proving this on the airline.
However, the court in the Kokia case noted that "another question is what is the law when the operator does not offer passengers a choice between an alternative flight and the return of the consideration, but rather presents them with one of the options as a fait accompli, and the passenger claims, and convinces the court with this argument, that if he had known that he had the right to choose, he would probably have taken advantage of it and chosen differently. In such a case, an argument may arise that not only was the duty to inform was breached, but also that the passenger's actual right to choose was denied, and in any event, this is a denial of the benefit set out in section 6(a)(2) of the Aviation Services Law itself. Such an argument was not made in our case and therefore we are not required to decide this question, and therefore we will leave it to be examined" since the question that was discussed is whether the mere non-granting of the right to choose grants the right to compensation, for example, to which he replied in the negative (if the passenger was convinced that he would have taken advantage of the right to choose, in which case it is a denial of a benefit that entitles him to compensation, for example), while the District Court in the Arkia International case answered in the affirmative, Even without the need for any proof on the part of the passenger who would have chosen a financial refund.
- In any event, in our case, there was no dispute that the possibility of refunding the consideration was not offered and the defendant did not give an explanation as to why no refund was offered, and it is clear that the claim that they were silenced from claiming that they boarded the flight when they were not told but were directed to the site upon purchase of the ticket - does not constitute a substantive explanation. Where the burden is on it, the obvious conclusion is that this was done "knowingly", even if it is not proven that a passenger would indeed have flown on an early flight, for example (when in fact it prevented him from proving in real time what he would have chosen) and it is highly doubtful that in view of the nature of the trip, he would have been a passenger on another flight (see and compare: Cell 37570-04-22 Lior Nordravsky v. Arkia International (April 22, 2025), on which the appeal was filed in other municipal applications 70166-06-25, which was rejected on this issue).
On the other hand, in both the Cuckoo case and the Arkia International case, the district courts were unanimous that a breach of the duty to inform under section 14 of the law regarding the presentation of the passenger's rights, in and of itself, cannot establish grounds for awarding exemplary damages. Section 11 does not refer at all to section 14 as a clause whose violation allows for an exemplary compensation award under it. Failure to provide benefits may result in exemplary compensation, and not a breach of the duty to inform about the benefits. In our case, I was under the impression that information was given in relation to the benefits but not in relation to this benefit, and I gave my opinion to the words of the station manager in his affidavit when he put in one line the alternative of financial restitution in relation to an alternative flight, but it should be mentioned again that he did not mention this in the report in real time, nor in the description of the sequence of events in Hebrew that was submitted as an appendix to the report, but only in relation to an alternative flight against an alternative flight with the defendant. It is clear from his testimony that he repeats the term "financial restitution" in the context of reimbursement of expenses for the assistance services, and therefore it is not impossible that he himself did not distinguish between the two.