Case Number
CA 6860/01
Date Decided
3-26-2003
Decision Type
Appellate
Document Type
Full Opinion
Abstract
[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
The Appellant was injured in a traffic accident in Gaza in a car insured by an Israeli insurance company. The Appellant filed his claim seven years later in an Israeli court. The court found that the accident was subject to an order by the military commander, which established a two year limitations period for claims deriving from traffic accidents in Gaza, and thereby held that the period of limitations had elapsed. This appeal challenges that decision.
The Supreme Court held:
A. 1. Since the enactment of the Compensation for Persons Injured in Traffic Accidents Act 1975 (hereinafter: The Compensation Act), the military commander issued the Order for Compensation for Persons Injured in Traffic Accidents (Gaza Area) (n. 544) 1976 (hereinafter: the Compensation Order). The Compensation Order includes an arrangement that is essentially identical to the arrangement in the Compensation Act and includes reference, in certain matters, to the Civil Torts Ordinance 1944, including a limitations provision that sets the period of limitations at two years.
2. The statutory source for the authority of the military commander in the West Bank and in the Gaza Strip (hereinafter: the area) is twofold: it is both a result of customary international law and of Israeli law, as the commander is the long arm of the Israeli government. Each of these sources leads to the conclusion that indeed the claim has passed the statute of limitations and that the appeal must be rejected.
B. 1. One alternative assumes that the orders of the commander are foreign law. Under this assumption, the matter of conflict of laws in terms of the limitations issue must be resolved according to the rules of private international law.
2. When a local court must decide a matter that involves foreign law, the rules of international law mandate that procedural provisions be decided according to the laws of the forum, and substantive provisions be adjudicated according to the foreign law. In Israel, periods of limitations are procedural provisions and thus, seemingly, it limitations must be determined under the laws of the forum. However, this is not the case when the foreign law – which creates an encompassing arrangement that includes provisions of substantive law and incidental provisions that regulate the implementation of the substantive rights – is concerned. In a case where a statute grants substantive rights and attaches to them provisions that limit their exercise, including procedural provisions, the arrangement must be applied cohesively rather than in parts. When the foreign law establishes a cause of action to assert substantive rights and attaches to it a specific period of limitations on its realization, the parties may not claim entitlement to enjoy the period of limitations that exists in the adjudicating forum.
3. When the case is heard in Israel, and the substantive law that applies is foreign law that established a specific period of limitations for a right granted in substantive law, the limitations must be considered a substantive provision, or – sadly – a provision that is an integral part of the foreign law that must be applied cohesively in the adjudicating suit. In the case at hand, it is sufficient to find that to the extent that the Compensation Order is foreign law, the Appellant’s claim has passed the statute of limitations.
C. 1. Should considering the military commander as an Israeli authority lead to a conclusion that the order is that of an Israeli governmental authority, and thus the Compensation Order constitutes Israeli law, we must refer to the Limitations Act 1958. Section 58 of the Limitations Act stipulates that the Act does not offend a period of limitations in terms of a certain issue that is set in a different source of law. Therefore, should it be possible to consider the Compensation Order a “different source of law”, the period of limitations that it sets will be the applicable period, rather than the ordinary period of limitations that is set in the Limitations Act. In terms of the relevant limitations, the Compensation Act refers to the Civil Torts Ordinance, which sets a period of limitations of two years.
2. The Limitations Act does not define the term “different source of law.” The status of the Compensation Order is not definite because of the duality in the status of the military commander. We must examine the substance of the military commander’s orders, their relation to the Israeli legal system and the particular nature of the Compensation Order. As noted above, the statutory source of the military commander’s orders is Israeli. The Compensation Order is identical in its primary section to the Israeli Compensation Act, and it is considered by the court to be an order that is closely and clearly related to Israel law. The conclusion that results from the combination of the commander’s statutory status and the Compensation Order’s connection with Israeli law is that they can be considered to be Israeli law when adjudicated by an Israeli court. Though from an international perspective the commander’s authorities are sourced in customary international law, when the commander’s legislative activity is heard by an Israeli court it can be seen, for such relevant purposes, as Israeli law.
3. The status of the commander as an organ of Israeli government coupled with the clear link between the Compensation Order and the Israeli Act lead to the conclusion that the Compensation Order can be seen as included in the definition of the term “law” as it appears in the Interpretation Ordinance or in the term “different source of law” as it appears in the Limitations Act. Therefore, We must turn to the Compensation Order for purposes of setting the applicable period of limitations, and this period is of two years according to the Ordinance to which the Order refers.
Keywords
Insurance, International Law -- Laws of war, International Law -- Occupied territories
