The Travel Adviser: Biography of a gadfly

The fight against airlines that refuse Israeli passengers is not over.

By MARK FELDMAN
Updated: DECEMBER 30, 2015 10:40
Kuwait Airways (photo credit: STEVE FITZGERALD/WIKIMEDIA)
Kuwait Airways
(photo credit: STEVE FITZGERALD/WIKIMEDIA)
I admit it, I’ve named names. I’ve done it willingly, openly, without hesitation or doubt. Jeffrey asked and I sung like a canary.
Did I buy into his strategy? Did I believe for a second he had even a minuscule chance of succeeding? Of course not! But to refuse him seemed foolhardy, almost cruel. In his quixotic quest I was not going to be a naysayer.
When I met Jeffrey Lovitky almost a dozen years ago, he was approaching 50 years old. In full candor, it’s hard to recall why he came into my office. Taut, follicly challenged, he beamed at me with an intense glare and requested with strong determination to purchase a ticket from Tel Aviv to the US. His legal background radiated from him, and over the years I discovered that like so many Americans, he had a deep love of Israel and was a fervent Zionist, while residing most of his adult life in the US.
Educated at George Washington University, he worked at the Judge Advocates General Corps of the US Army for a few years, then did a four-year stint at the US Department of Justice before opening his own office in 1990. To this date, I have no idea if it’s a one-man operation or filled with a conference room of doe-eyed optimists bent on righting the worlds wrong.
Over the years he continued to purchase tickets originating in Tel Aviv with lengthy stays in the US. In fact as a client, he was one of our favorites, spending no doubt hours on the Internet scouring out his options, before asking us to duplicate them.
His courtly manner of thanking me with a fine bottle of wine led to many deep conversations illuminating his concern that in the aviation industry, Israel and Israelis were being scorned.
It was back in 2011 when he started asking me piercing questions about the three Global Airline Alliances, consisting of Sky Team, One World and the Star Alliance. He zeroed in on the press release from Delta Airlines welcoming the addition of Saudi Arabian Airlines to the alliance in 2012. What galvanized him into action was when I showed him that Delta was planning on operating the New York to Riyadh flights as a code-shared flight. In practice while it would be listed as a Delta flight, using four numbers, the actual aircraft would be Saudi Arabian.
This was no joke, as not only could Israelis not board the aircraft due to refusal of any Israeli entry into Saudi Arabia, or even flying via Riyadh, but the airline had a strict policy that no Bibles, Stars of David or crucifixes could be brought into the country.
His letter and subsequent exchanges with Delta management led to a flurry of reports in the mainstream press. US congressmen got involved, railing at Delta’s capitulation to ban Jews on their flights.
The mainstream US media jumped on the bandwagon with wildly hyperbolic articles from USA Today to the Huffington Post piling on the attack.
Delta’s tepid reply that they were not responsible for a foreign country’s visa requirements added fuel to the fire. It was only after the story continued to grow that Delta issued a more specific response that stated the company’s non-discrimination policy and sought to distance itself from its Saudi partner. Delta decided to end their code-sharing agreement and further announced that Saudi Airlines passengers could not earn Delta frequent flier miles.
Not content on resting on his laurels, Jeffrey continued to be an avid observer of the aviation industry, and several times a year we would engage in spirited conversations on how it was evolving.
The Freedoms of the Air, a set of basic commercial aviation rights, grants a country’s airlines the privilege to enter and land in another country’s airspace.
Formulated in 1944, this Convention of International Civil Aviation details nine freedoms to be enjoyed, from operating in one’s domestic markets to the right to fly over a foreign country without landing.
It is the Fifth Freedom, though, that is upsetting the three largest US carriers, American, Delta & United. This is the right to fly between two foreign countries on a flight originating or ending in one’s own country. For example, Kuwait Airlines can fly from New York to London and continue on to Kuwait. It can compete on the New York to London route, exactly as British Airways, Virgin Atlantic & American Airlines do. It can lower the airfare, give greater service – and competitors can do nothing to stop it.
Barrister Lovitky didn’t care about the financial challenges to the veteran US and European airlines, as more and more Middle Eastern airlines exploited this Fifth Freedom by adding scheduled flights between cities throughout the US to cities in Europe.
He peppered me incessantly on who would be eligible to fly on those planes and almost joyously discovered that all Israeli passport holders were banned.
It was at this stage that I scoured my passenger lists for clients and friends willing to attempt to fly one of these airlines. Eldad Gatt volunteered to assist in our quest. We tried to purchase him a ticket on a Kuwait Airlines JFK to London flight, but once we put in his passport details, our request was denied. Calling their offices in the US elicited the same response: No Israeli passport holder was permitted.
Jeffrey’s explanation of the law was simple. He first turned to Kuwait Airlines, asking if they discriminated against Israeli passengers. When they answered in the affirmative – that Israeli passengers were not permitted on Kuwait Airlines, he had his silver bullet. Filing an action of cause with the Department of Transportation asserting discrimination, he was initially rebuffed. Months went by and only after providing more evidence to the Department of Transportation did they take up the cause and warn Kuwait Airlines.
Transportation Secretary Anthony Foxx announced on September 30 that the airline was in violation of the law because it refuses to sell tickets to Israelis.
On October 29, the D.O.T ordered the airline to “cease and desist from refusing to transport Israeli citizens between the US and any third country where they are allowed to disembark,” according to a letter from Blane Workie, the department’s assistant general counsel for enforcement.
By refusing to transport between the US and a third country that accepts Israeli citizens – in the case of Kuwait Airlines, the United Kingdom – the airline was in violation of US law. Kuwait Airways countered by saying that it declined to sell Gatt a ticket to avoid running afoul of Kuwaiti law, which prohibits its citizens from entering “into an agreement, personally or indirectly, with entities or persons residing in Israel, or with Israeli citizenship.”
So what did the great business minds at Kuwait Airlines decide to do with this onslaught of public pressure? “On December 15th, Kuwait Airways informed the United States Department of Transportation that they will be eliminating service between JFK and London Heathrow,” said a department spokesperson.
The airline says they cannot allow Israelis on the planes because the Middle Eastern kingdom prohibits its citizens from doing business with citizens of the Jewish State.
In essence, Kuwait Airways killed the flight to spite American officials, who threatened to pull the airline’s permit to fly to the United States if they continued discriminating against Israeli passengers.
“It is unfortunate that Kuwait Airways has decided to suspend its service, instead of accepting Israeli citizens as passengers,” said Jeffrey Lovitky, a Washington lawyer representing Eldad Gatt, who was refused a ticket because of the policy. “This demonstrates Kuwait’s stubborn refusal to give up its boycott of Israeli citizens.”
The airline filed a petition November 24 asking the Federal Court of Appeals for the District of Columbia to review the dispute. The airline contends that it isn’t discriminatory because it will sell tickets to passengers regardless of race, national origin or religion – so long as they hold a passport valid in Kuwait.
Because of that Kuwaiti law, the US dispute boiled down to flights that didn’t land in Kuwait, such as the airline’s leg between New York and London. The threat was that the Transportation Department could block flights to the US unless the airline changed its policy.
Kuwait Airways hasn’t withdrawn its lawsuit against the department, so it could potentially resume flights if it wins in court. Gatt will do everything in his power to ensure that the airline doesn’t resume flights between New York and London until it accepts Israeli citizens as passengers, Lovitky said.
In all of our talks about these lawsuits, I hadn’t predicted such an outcome. In fact privately I had told Jeffrey that I would be in shock if the airline would capitulate and was skeptical the DOT would come to our assistance.
Politicians who had pushed for the feds to nix the airline’s permit say they are glad the company decided to end the flight. “If you’re so anti-Semitic that you would rather cancel a complete flight route than provide service to Israeli passport holders, then good riddance,” said New York Councilman Rory Lancman. He said it was unconscionable that Kuwait, which the United States helped liberate in the early 1990s with the help of Jewish soldiers, would continue to discriminate against Israelis.
The airline will still run its New York-to-Kuwait flight from JFK, but since Israelis are not allowed in the country, the feds cannot require them to allow Israelis on that flight. The fight is not over though; Jeffrey has no plans to drop his suit against the airline and that he would like a formal ruling that the airline is discriminating against Israelis.
As in the outrage that was produced by the Delta & Saudi Arabian Airline case, Mr. Lovitky has reveled in being a gadfly, swimming upstream in a manner that too many say is a lost cause. Colleagues of mine have scoffed at his efforts, asking why an Israeli would want to fly on an Arab airline anyway.
That myopic view blurs the reality. Be it anti-Israeli or anti-Semitic, accepting such a practice is abhorrent, and rather than saying it’s a lost cause and the world hates us, taking up the legal fight is a just and moral action.
It is a the pity that we don’t have more lawyers like Mr. Lovitky.
The author is CEO of Ziontours, Jerusalem. For questions and comments: mark.feldman@ziontours.co.il