Comply Now, Complain Later: Rick Alimonti on Recent Airline Controversies

In light of the recent scrutiny of United Airlines’ customer relations, we here at Lawline checked in with our resident aviation experts to get a clearer view of the situation. New York-based aviation attorney Rick Alimonti answered some of our most pressing questions and helped us gain some perspective—and manage our expectations.

Pursuant to federal law and regulations and international law (the Tokyo Convention), the airline has a virtually unfettered right to disembark a passenger for safety reasons. This can be traced in large part to the pilot-in-command concept, in which the pilot is the “final authority” with respect to the operation of the aircraft.

Who on the plane bears this type of authority?

In a commercial and airline context, this authority extends, more or less, to the cabin crew, and the pilot-in-command may reasonably rely on information provided by, for example, a flight attendant in deciding to eject a disruptive passenger. See, e.g., Christel v. AMR Corp., 222 F.Supp.2d 335 (E.D.N.Y 2002). Airline safety is generally considered to be a field fully preempted by federal law.

What other instances may an airline deboard passengers?

This is the far tougher question and one couched more in shades of grey than black and white. We can begin with a fairly straight-forward starting point: pursuant to the Federal Aviation Act and the Airline Deregulation Act, no state may regulate an airline’s services. This includes boarding practices and policies. An airline’s rules regarding denied boarding are defined in part by fairly detailed regulations at 14 C.F.R. §§ 250.1-250.11 (“Oversales”). As such, a state tort action may not undermine standards set by federal aviation laws and regulations and may be precluded as a matter of law.

Of particular import are the Boarding Priority Rules found in §250.3. These clearly allow for considerable discretion, and only an arbitrary and capricious basis will potentially subject the airline to liability. Of course, the rationale must also be non-discriminatory.

What about regulating other aspects of passengers on the airline, such as attire?

That’s another grey area. An airline may also impose reasonable standards on passenger attire that is revealing or otherwise offensive (e.g., expletives on a t-shirt). However, if an airline has a specific policy on such practices and the removal is violative of the policy, the airline is potentially liable. The policy itself may be immune from scrutiny as federally preempted, but an airline’s violation of its own policy may well give rise to an actionable claim as it does not seek to undercut the preemptive policy itself.

An airline may set out reasonable rules and may make reasonable decisions on who may fly aboard its aircraft. Many of the rules are part of a long tariff compromising the carrier’s conditions of carriage, on file with the DOT. Although largely unread by the travelling public, these detailed documents are generally enforced unless in violation of a superior source of law, e.g., a federal law, federal regulation or international treaty.

Are there other expectations a passenger should have when traveling with an airline?

In general, a compliant passenger has the right to travel and associated services in a reasonable and non-discriminatory manner. As a practical and contractual matter, passengers paying full fares and for higher class travel are likely to be more protected from being denied boarding [or ejected] than the discount traveler.

The passengers’ rights as to overbooked flights are spelled out rather explicitly. Once on board, as a general rule, the passenger should comply with all airline instructions. Does a compliant passenger, once boarded, have the “right” to stay on the flight? Probably not, but further guidance from the courts and the FAA are needed to answer that question with any certitude. An airline’s response to even a difficult passenger should be reasonably proportionate to the situation and perceived threat. However, the “64-thousand-dollar question” is: Once a passenger refuses a request from a crewmember, is he/she thus non-compliant and a safety risk? I doubt such a per se rule exists or will be created judicially or statutorily. But these situations can escalate to the point at which ejecting the passenger is an appropriate and well-insulated decision—one where safety is arguably at issue. Once the cabin door closes, the airline is essentially stuck with the “unhappy” passenger, and an ongoing incident in flight is undesirable to say the least.

A compliant passenger should expect to be treated reasonably. This begs the question as to what recourse that passenger has as to unreasonable treatment, but belligerence and escalation seldom inures to the passenger’s benefit. Once a passenger becomes a potential threat to safety, the carrier will have very broad discretion in dealing with the situation.

What other wise words we should remember when we fly?

Clearly in the post 9-11 world, airline [and legal] tolerance has shifted, perhaps permanently, toward further discretion of the airline and insulation for its decisions. Absent extreme and inappropriate conduct on the part of the airline, the best advice to the traveling public would probably be: “comply now; complain later”—later being upon the conclusion of the flight with all parties safely at their destination.