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Unruly Passengers and Liability for Acts of Unlawful Interference

Judith R. Nemsick

8th Annual McGill Conference on Aviation Liability and Insurance

Montreal, Canada

April 17-18, 2015

Unruly Passenger Incidents – Upward Trend

IATA Study:

2007 – 2013: More than 28,400 reported incidents

1 incident per every 1,600 flights 20% of these incidents required police or security service

intervention Problem: Unruly passengers rarely face prosecution,

fines or other sanctions IATA requested ICAO to amend 1963 Tokyo Convention

Diplomatic Conference held in Spring 2014 Montreal Protocol 14 - Ratification Process

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Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Signed at Tokyo on 14 September 1963 (“Tokyo Convention”)

Tokyo Convention: Governs criminal offenses and other acts committed

on aircraft that jeopardize the safety of the flight and good order and discipline on board

Entered into force in 1969 186 nations have ratified the treatyApplies to any aircraft registered in a Contracting State

while the aircraft is outside the territory of any State Does not apply to domestic transportationApplies to acts “in-flight” when take-off run

commences and landing runs ends

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Tokyo Convention – Primary Purpose and Goals

“The primary purpose of the Tokyo Convention is to promote air safety.” Sen. Report No. 91-1083 (1970), reprinted in 1970 U.S.C.C.A.N. 3996, 3997.

Goals:To establish a rule for allowing a Contracting

State to exercise jurisdiction over certain offences and acts committed on board an aircraft

To provide the aircraft commander with necessary authority to address persons who have committed or are about to commit a crime or act jeopardizing safety and without fear of subsequent retaliation through civil suit or otherwise

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Relevant Articles – Powers of Aircraft Commander

Aircraft commander (AC) may take certain actions when he has reasonable grounds to believe that a person has committed, or is about to commit, on board the aircraft: an “offence[] against penal law” or an act which "may or do[es] jeopardize the‘ safety of the aircraft

or of persons or property therein” or “which jeopardize[s] good order and discipline on board.“

AC has broad discretion to act: Discretionary language – “may” AC may act if believes a passenger is “about to commit” one of

the above offences Options on actions to take Broad immunity in “any proceeding”

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Relevant Articles – Powers of Aircraft Commander

Article 6 AC may restrain a passenger in order to protect the safety of the aircraft or

persons or property therein; or to maintain good order and disciple or to deliver the person to competent authorities.

AC may require or authorize assistance of crew members or other passengers. Crew members or passengers may also take reasonable preventive measures without such authorization when he/she has reasonable grounds to believe that action is immediately necessary for safety of the aircraft.

Article 8 AC may disembark in the territory of any State in which the aircraft lands any

person who he has reasonable grounds to believe has committed, or is about to commit, on board the aircraft the above-mentioned acts.

AC shall report to the authorities of the State in which he disembarks any person pursuant to this Article, the fact of, and the reasons for, such disembarkation.

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Relevant Articles – Powers of Aircraft Commander

Article 9 AC may deliver to the competent authorities of any Contracting State in the

territory of which the aircraft lands any person who he has reasonable grounds to believe has committed on board the aircraft an act which, in his opinion, is a serious offence according to the penal law of the State of registration of the aircraft.

AC shall as soon practical notify the authorities of his intention to deliver such person, and shall furnish the authorities to whom any suspected offender is delivered with evidence and information lawfully in his possession.

Article 10 For actions taken in accordance with this Convention, neither the aircraft

commander, any member of the crew, any passenger, the owner or operator of the aircraft, nor the person on whose behalf the flight was performed shall be held responsible in any proceeding on account of the treatment undergone by the person against whom the actions were taken.

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Tokyo Convention Cases: Zikry v. Air Canada

Zikry v. Air Canada, C.F. 1716/05 (Haifa Magistrate Ct. Nov. 9. 2006) Israeli court determined carrier entitled to immunity During flight from Israel to Canada, passengers informed flight attendant

that plaintiff was smoking in lavatory Lavatory smelled of smoke Plaintiff boasted about deactivating smoke detector Flight attendant found cigarette butt in lavatory that matched brand

in plaintiff's overhead bag Plaintiff filed action seeking damages for defamation and mental anguish

after carrier refused carriage a subsequent leg of the flight Court: Carrier entitled to immunity because only had to prove that those

acting on its behalf had reasonable grounds to believe there was a danger to flight safety or that an act had been committed

Importantly, immunity even if post factum it was a false apprehension

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Tokyo Convention Cases: Eid v. Alaska Airlines, Inc.

Eid v. Alaska Airlines, Inc., 621 F.3d 858 (9th Cir. 2010), cert. denied, 131 S. Ct. 2874 (2011) 9 passengers traveling first class from Vancouver to Las

Vegas Flight attendant advised Captain that as a result of

disturbance, “I have lost control of the first class cabin.” Captain diverted aircraft to Reno Local authorities interviewed and cleared passengers to

continue on to Las Vegas Carrier declined to transport passengers to Las Vegas Trial court granted summary judgment in favor of airline on

basis of Article 10 immunity; appeal followed

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Tokyo Convention Cases: Eid v. Alaska Airlines, Inc.

Ninth Circuit Reverses: 2-1 decision Focus on appeal: Analysis of “reasonable grounds to believe” Two Issues:

Is the AC’s decision entitled to deferential “arbitrary and capricious“ standard or is it assessed under standard negligence principles? Standard akin to negligence

May the AC rely on crew statements or must AC undertake independent investigation? Captain should have investigated

Majority quoted US delegate statement (but major omission):

Within the general concept of United States law, the phrase “reasonable grounds” would give the impression that the aircraft commander would be required to have substantial basis for his belief, that he could not act on the basis of facts which were inadequate to support his belief to the effect that a person had committed or was about to commit the kind of act under consideration.

Following remand: Jury found that Captain had reasonable grounds to act and thus carrier was immune. After nine years of litigation, airline wins.

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Tokyo Convention Cases: Eid v. Alaska Airlines, Inc.

Dissent: Convention’s text, purpose, and negotiating and drafting history support

“arbitrary and capricious” standard Majority’s reasonableness standard is “an affront” to the treaty’s purpose Majority omitted US delegate’s full comments from Minutes “In other words, the aircraft commander could not act arbitrarily or

capriciously.” Majority incorrectly interprets Zikry decision Zikry recognized “extensive and wide authority” of AC and no

retrospective examination of facts Deferential standard of “arbitrary or capricious” conduct under § 44902(b)

strongly supports adoption of a similar standard under Tokyo Convention Majority incorrectly interprets § 44902(b) to impose reasonableness

standard

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U.S. Statutes – Domestic Flights

Federal Aviation Act Statutes and FARs: 49 U.S.C. § 44902(b) - Refusal to transport passengers or

property “[A]n air carrier … may refuse to transport a passenger or

property the carrier decides is, or might be, inimical to safety.”  14 C.F.R. § 121.580 - Prohibition on interference with

crewmembers“No person may assault, threaten, intimidate, or interfere with a

crewmember in the performance of the crewmember's duties aboard an aircraft being operated under this part.”

14 C.F.R. § 91.3(a) - Responsibility and authority of the pilot in command

“The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.”

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U.S. Case Law Analyzing 49 U.S.C. § 44902(b)

Cerqueira v. Am. Airlines, Inc., 520 F.3d 1 (1st Cir. 2008). FAA preempts state tort claims based on aviation safety. Section 44902(b) immunizes air carriers for refusing to transport passengers based on safety concerns so long as the decision was neither

arbitrary nor capricious. Discretion is broad and requires only a belief that a passenger might be inimical to safety.

Dasrath v. Continental Airlines, Inc., 228 F. Supp. 2d 531 (D.N.J. 2002). Decision is assessed on facts and circumstances known to the

carrier at that time, and the time constraints and general security climate in which events unfold.

Williams v. Trans World Airlines, 509 F.2d 942 (2d Cir. 1975).

Test rests upon facts and circumstances as known to the airline at the time it formed its opinion and made its decision, and whether the

decision was rational and reasonable, and not capricious or arbitrary. Cordero v. Cia Mexicana De Aviacion, S.A., 681 F.2d 669 (9th Cir. 1982)

Airlines do not have immunity when they bar passengers from boarding on the basis of unreasonably or irrationally formed beliefs.

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Montreal Protocol 14 – Amends Tokyo Convention

Montreal Protocol 2014 – 22 nations must ratify to take effect Key Changes:

Extends jurisdiction over offense to destination country of flight and State of the operator; and when diverts to third State, that State is also competent to exercise jurisdiction

AC needs only reasonable grounds to believe a “serious offence” was committed (not a violation of penal law of State of registration) to deliver passenger to law enforcement

Defines unruly behavior to include physical assault, threat of assault, and failing to follow crew instructions

Right of recourse provision recognizes airlines have the right to seek compensation

Extends period of “in-flight” to when doors closed and open Shortcoming: Does not define standard for “reasonable grounds”

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Aviation and Transportation Security Act (“ATSA”)

Provides immunity from civil liability to any US or foreign air carrier or their employees who voluntarily report “any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism” to federal agencies, TSA, any Federal, State or local law enforcement officer, or any airport or airline security officer. 49 U.S.C. § 44941(a).

Two exceptions to immunity for:

(1) any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading; or

(2) any disclosure made with reckless disregard as to the truth or falsity of that disclosure.” 49 U.S.C. § 44941(b)

Patterned after “actual malice” standard for defamation which requires that statements be “materially false”

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US Cases Finding ATSA Immunity

Air Wisconsin Airlines Corp. v. Hoeper, 571 U.S. __, 134 S. Ct. 852 (2014) Reversed $1.2 million defamation award to pilot passenger who airline

reported may present security risk after failing fourth proficiency test and exhibiting angry behavior

Immunity may not be denied for substantially true statements; only for materially false ones. Statement does not lose immunity “because of some minor imprecision, so long as ‘the gist’ of the statement is accurate.”  

Baez v. JetBlue Airways, No. 09-cv-0596 (ENV)(RML) (E.D.N.Y. July 7, 2014), appeal pending, No. 14-2754 (2d Cir.)

Summary judgment on ATSA immunity grounds granted to airline and employee for reporting agitated passenger’s statement about bomb in her bag after flight left without her

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