Civil Case (N) 4843-03-20 Aviram Becker v. El Caspi Case – Supreme Court Israel Airlines Ltd. - part 7

"However, the test is not whether the defendant should have operated the aircraft.  Section 6(e)(1) grants an exemption to a flight operator if he has met the burden of proving two cumulative conditions.  The first was that the flight was canceled due to special circumstances beyond his control.  Second, even if he had done everything in his power - he could not have prevented the cancellation of the flight due to the same circumstances.  It seems that even the last condition requires double proof.  First, whether the defendant did everything in its power to fly the passengers under the concrete circumstances that were created.  The second concerns compliance with the test of expectations - whether it was possible to anticipate the technical malfunction that the defendant would have avoided and to take reasonable measures in order to prevent the circumstances of the malfunction in the first place.  Go out and see, the test is not only from the moment the fault was discovered and how the defendant tried to minimize the damage.  This point is important.  It is not enough for a flight operator to claim in his defense that there was a "technical malfunction" and will automatically receive the long-awaited exemption from passenger compensation, where he will prove that he tried to issue an alternative flight by examining an alternative aircraft from among the variety of his planes, which is limited by the number of takeoffs to various destinations based on the number of planes available to him in the first place.  If an air operator has a limited number of aircraft in order to meet the definition of an air operator, and most of them are during a flight to different destinations due to other obligations in the schedule, then in the event of a "technical malfunction", he will not be able to provide a replacement aircraft, certainly in a situation where two flights to different destinations are canceled.  Locating and leasing a replacement aircraft by way of contacting another company requires a long time that will not necessarily help the goal of transporting the passengers to their planned destination as soon as possible.  In this state of affairs, the passenger will find himself frequently holding on to his hair, and the provisions of the law will be emptied of content, so that these will be lip service.  This is not what the legislature hoped."