Kuwait Airways Case: German Court Allows Airline To Refuse To Sell Ticket To Israeli
Posted on November 21, 2017
You may recall the Kuwait Airways case, which I’ve written about several times: the airline refused to sell a ticket to an Israeli traveler flying from New York to London on the grounds that Kuwaiti law prohibited the carrier from doing business with Israelis. After some hemming and hawing, the Department of Transportation finally took the view that this was unreasonable discrimination, and thus forbidden by 49 U.S.C. § 41310(a), even though the DOT, curiously, did not assert a violation of 49 U.S.C. § 40127(a), which bars discrimination on the basis of “race, color, national origin, religion, sex, or ancestry.” The airline sought review, but the case was rendered moot when the airline shamefully decided to drop service between New York and London rather than face having to do business with Israeli travelers.
Now the Landgericht Frankfurt has ruled in a similar case. The Israeli passenger booked a ticket online for a flight from Frankfurt to Bangkok with a layover in Kuwait City. The airline cancelled the flight when it learned of the passenger’s nationality. The court held that it would be unreasonable to require the airline to disobey the law of its own state, even if that law itself is unreasonable. This is contrary to the view of § 441 of the Restatement that I gave in one of the prior posts, and I’m surprised that this might be the law in Germany.
The court also considered whether the Israeli passenger might be entitled to damages on the grounds that the airline violated Germany’s anti-discrimination laws. Apparently the German law sanction discrimination on racial, ethnic, or religious grounds but not on grounds of nationality or citizenship. Okay. But who can say with a straight face that anti-Israel boycott rules in Kuwait and other Arab countries do not constitute religious discrimination? Give me a break.
I can see a possible distinction between this case and the American case: the passenger was to have a layover in Kuwait City, and (I believe) Kuwait does not allow Israelis to enter the country. It’s unclear whether the traveler would have required a transit visa or if he would have had to pass through immigration control at the Kuwait City airport. But I think it would be unfortunate but correct to say that an airline cannot be compelled to carry passengers to an airport where the passengers will be refused admission under local law. That, though, wasn’t how the German court reasoned.
The decision was immediately criticized. The Central Council of German Jews said it was “intolerable that a foreign business, which is acting on the basis of deeply antisemitic national laws, may operate in Germany.” I will try to keep you posted on any appeals in this continuing sordid saga.