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I recently watched a short Youtube video where a copyright lawyer (thus, not his area of expertise) was discussing the United Airlines incident where they had a passenger removed by force when he refused to deplane voluntarily.

The point of the video was to review United's Contact of Carriage, which as I understand, is the contact you agree to whenever you purchase a ticket from United. There are three sections in the Contract which seem like they might be relevant:

RULE 21 REFUSAL OF TRANSPORT

discusses the reasons for which United has the right to remove a passenger from its plane. There is a list of them, but most notably, "overbooked flight" is not one of those reasons.

RULE 5 CANCELLATION OF RESERVATIONS

G. All of UA’s flights are subject to overbooking which could result in UA’s inability to provide previously confirmed reserved space for a given flight or for the class of service reserved. In that event, UA’s obligation to the Passenger is governed by Rule 25.

specifies that United may overbook its flights, and as a purchaser, you're agreeing that you may not get to actually use the ticket you bought due to overbooking. However, in the event of an overbooking, it refers to:

RULE 25 DENIED BOARDING COMPENSATION

which goes through the procedure by which United will attempt to solicit volunteers to forfeit their tickets in exchange for compensation; then, if needed, resort to selecting passengers to involuntarily forfeit their tickets, etc.

However, point was raised that Rule 6 and Rule 25 talk about denial of boarding in the case of overbooking. In this specific situation, the passenger had already boarded – United had already given the passenger his "reserved space", and was now asking him to "give it back".

Is there any real difference between those two events? Does the fact that the Contract of Carriage talks about "boarding", but not "removal after boarding", make any legal difference as far as United's rights in this case?


Just to clarify: I realize that overbooking itself is a legal business practice, as it's called out specifically in the Contract. But the Contact also lays out specifically what happens when overbooking occurs, and this event doesn't appear to be covered.

I also recognize that United's airplane is ultimately private property and remaining in your seat after being told to leave is probably trespassing in some sense. And once security was called and the passenger disobeyed, he was clearly in the wrong. But that doesn't mean UA didn't breach their contract in having him removed in the first place.

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    Possible duplicate of Is airline ticket overbooking fraud? – ohwilleke May 31 '17 at 6:31
  • I'm not asking about overbooking. That is clearly called out in the Contract of Carriage as a thing UA is allowed to do. I'm specifically asking about the difference between "refusing to allow boarding" (specified in the terms) vs "removal of an already boarded passenger that was not breaking any rules". – KutuluMike May 31 '17 at 11:07
  • I think that issue is discussed as well, but I'm not al that seriously concerned about duplication anyway. – ohwilleke May 31 '17 at 18:31
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Rule 21 A: Breach of Contract of Carriage is one reason invoking the right to remove - "Failure by Passenger to comply with the Rules of the Contract of Carriage". 21(H): Safety then provides a set of rules that must be complied with:

Whenever refusal or removal of a Passenger may be necessary for the safety of such Passenger or other Passengers or members of the crew including, but not limited to:

which includes

  1. Passengers who fail to comply with or interfere with the duties of the members of the flight crew, federal regulations, or security directives;

This does not directly authorize ejecting boarded passengers because of overbooking, but it provides a basis for concluding that there has been a breach. One can reasonably wonder whether the wording of the clause means that passengers can only be ejected for refusing to comply with an obviously safety-related instruction. However, 21(H)(16) includes as a safety reason "Passengers who have or cause a malodorous condition (other than individuals qualifying as disabled)", and (5) includes being "not properly clothed". (4) also includes "Passengers who, through and as a result of their conduct, cause a disturbance such that the captain or member of the cockpit crew must leave the cockpit in order to attend to the disturbance", which could be applicable in a particular instance (e.g. if the flight attendant says "please go" and then has to call the captain to say the same).

These extensions to "safety" are contrary to a reasonable interpretation of "safety", but 14 CFR 91.3(a) states that "The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft". So as long as the pilot makes the determination, he has the final authority, until that regulation is changed. There is nothing in regulations about pilots that limits what the captain can do, in this respect, and there is (per case law) no provision for judicial review of pilot decisions. Cerqueira v American Airlines indicates a possibilty for cause of action in case a decision is "arbitrary and capricious" (a standard originating in Williams v. TWA 509 F.2d 942), especially in connection with anti-discrimination law. In the case Lu. v. Airtran 631 Fed. Appx. 657 plaintiff argued that the airline's removal of her failed to meed the safety standard of the statute, and again the court affirms that there is no provision for review of pilot decisions, though review is allowed in some districts if the decision of arbitrary or capricious. Although Lu raised the "was not inimical to safety" argument, the court responds:

Lu did not allege any discriminatory animus for her removal from the flight. Lu only insisted that her actions were not "inimical to safety" and cited the "arbitrary and capricious preferences" of the flight attendants in an attempt to meet her burden under § 44902(b). Such conclusory statements and bare assertions that Lu's behavior was not inimical to safety—despite her admitted failure to comply with safety regulations do not plausibly support a claim that her removal from the flight was arbitrary or capricious.

There is really no way to know how the courts would have ruled in the Dao case, since the relevant details of the event are not known. To test the limits of pilot removal discretion, we would need a scenario where a boarded passenger is randomly selected for removal due to overbooking, and where the passenger has done nothing that could be construed as a threat to safety (e.g. arguing with the attendant, refusing to leave), and where the pilot does not allege a safety-based reason for removal. Then there could be a test of whether a suit over breach of contract for removal (as opposed to denied initial boarding) for a demonstrably non-safety based reason would prevail.

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    I considered that idea, but it seems like a stretch... calmly and peacefully occupying the seat you were given is a threat to safety? Or, deplaning so off-duty flight attendants can take your seat is a threat to safety? That seems like a pretty tough sell. – KutuluMike May 31 '17 at 11:05
  • Also, correct me if I'm wrong, but even if the pilot, under the CFR, has the right to take some action, that doesn't negate the possibility that doing so would be a breach of the Contact of Carriage? – KutuluMike May 31 '17 at 11:15
  • So, to clarify, it is possible that the passenger, having peacefully left the plane when ordered to do so, could have then sued for breach of contract and possibly obtained damages over and above the normal compensation due to overbooked passangers, based on the consequences of the airlines failure to honor its contract. – Paul Johnson May 31 '17 at 18:20

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