Lukas, thank you for the pointer to the detailed post on Verfassungsblog. I have to say it is still unclear to me whether it was the layover in Kuwait City that caused the German court to rule as it did. The authors noted the issue, as I did, but they note that the court’s decision was based on the law forbidding the company from doing business with Israelis, a rationale that would apply to a flight from Frankfurt to New York with no layover. I do think that the Kuwait layover potentially justifies the result of the case, but I’m not sure that the court reached the result it reached for the right reason.

for more analysis on this case I found this piece on Verfassungsblog: Protecting Israeli Citizens against Discrimination in Germany?

I hope this might be a useful read.

Kind regards,
Yours Lukas Heinemann

Philipp, thanks for the note! I would like to report more often on German cases and other foreign cases, but in general I don’t learn about them in a very timely way. I always welcome guest posts by foreign lawyers with interesting cases to present (hint, hint).

I should preface my comments by saying that although I’m competent to read the report of the decision according to Columbia University’s German department circa 1997, no doubt aspects of the case are lost in translation. Also, my link was to an account of the decision rather than to the decision itself. Again, perhaps something has been lost in the translation.

To me the surprising feature of the case is the idea that impermissibility of dealing with an Israeli under the foreign law should give rise to a defense of impossibility under German law. The American view on this is, I think, stated in § 441 of the Restatement (Third): “In general, a state may require a person of foreign nationality … to do an act in that state even if it is prohibited by the law of the state of which he is a national.”

Your first point suggests that maybe the impossibility the German court perceived turned on the layover in Kuwait City rather than on the general question of whether Kuwaiti law permits the airline to business with Israelis. If that’s right, then I (reluctantly) agree with you that the case came out correctly, as I indicated in the post. But that didn’t seem to me to be the point of the decision, at least in light of what I read.

I agree with you that this is strategic litigation and that we likely will see an appeal. I’d welcome further comments on the case, or on other German cases of interest!

1. The claimant was not entitled to fulfillment of the contract because fulfillment was legally impossible for the airline. The airline was not allowed to transport the claimant with layover in Kuwait City. For comity reasons alone the Frankfurt court did not question the Kuwait law.

2. The claimant was not entitled to compensation for alleged material damages. The claimant booked the ticket online without telling the airline about his nationality. When he forwarded his passport data the airline immediately offered to get him another equivalent ticket on another airline nonstop for no additional costs. For whatever reasons the claimant refused to take that offer and therefore failed to mitigate his alleged damage.

3. I also cannot see a discrimination by the airline that would require compensation for immaterial damages. Of course I don’t want to argue that anti-Israel boycott rules in Kuwait do not constitute religious discrimination. But I do not believe that it was the airline that discriminated the claimant and is therefore to blame because the airline was legally required to comply with the allegedly discriminating Kuwait law.

It might be true that a foreign enterprise that is required to complay with foreign discriminating laws should not be allowed to do business in Germany. But that is not a question for the civil courts but rather for the competent authorities in Germany.

As the airline advised in its transport conditions beforehand that due to Kuwait laws it is not allowed to transport people from Israel with layover in Kuwait it might be that the lawsuit constitutes some kind of strategic litigation. Therefore I am sure that there will be an appeal to the higher regional court of Frankfurt and after that a revision to the German high court, perhaps even a complaint to the German constitutional court.

Kind regards from Hamburg

Yours Philipp Fölsing