Airline Passengers, Beware: The Government Does Not Protect Your Rights When You Fly, As a Recent Federal Appellate Decision Attests

By JOHN W. DEAN
Friday, Apr. 04, 2008

This is the first in a two- part series of columns by the author on the lack of legal protection for airline passengers. -- Ed.

Several years ago, I was stuck on an airplane that sat on the tarmac for just over three hours before taking off. As we waited, a flight attendant treated passengers just as a good Nazi might have. With this experience in mind, I applauded the fact that New York lawmakers recently took action to deal with the growing problem of imprisoning passengers upon planes from which, despite many-hour waits, they are forbidden to disembark.

Unfortunately, that very effort -- which was going to be followed by several other states' reforms -- has been overturned by U.S. Court of Appeals for the Second Circuit. Meanwhile, Congress has completely failed to respond to the problem, apparently bowing to pressure from the airlines, which oppose such reforms.

If you have not personally experienced this type of problem, you are lucky. It is a horrid situation, and there is nothing you can do about it. When you board a commercial airliner in the United States for a domestic flight, you have virtually contracted away your rights by purchasing and accepting your ticket to hell (metaphorically speaking).

Passenger Imprisonment and Airline Hubris: One Story Illustrates A Problem Many Travelers Endure

As a frequent flyer, I have had endured long delays (both on the ground and in flight patterns) but my first three-hour-plus delay was particularly unpleasant, because a young lady seated near me was having an awful time with her child, and Nurse Ratched (the harridan of "One Flew Over the Cuckoo's Nest") was playing head flight attendant that evening.

It was the last flight from Phoenix to Los Angeles, during Summer 2000. Only after we pulled away from the gate did the captain announce that there would be "a slight delay" because of electrical storms in the area. Our short delay had already lasted about an hour when the young child in her mother's arms awoke and started crying. The young mother was in my row, seated by the window, and she rang the flight attendant call button. She explained to the flight attendant that the TSA had refused to let her take the child's water bottle through security, and asked if the flight attendant could bring the child some water.

To the consternation of the mother, to the amazement of the very large man seated in the middle seat, and to the astonishment of yours truly, the flight attendant said she had no access to water. The water, she said, was secured, and since we would likely be taking off any moment, she could not do anything. The large man in the middle seat immediately interjected that, if he could get out of his seat, he had a bottle of water he had just purchased, which was in his bag in the overhead compartment, and he would give it to the thirsty child. No, he must stay seated, he was told. No, the flight attendant would not retrieve the bottle of water from his bag if he described it.

Fortunately, an equally dumbfounded passenger across the aisle, who was listening, reached under his seat and produced a bottle of water. We passed the bottle to the mother and it solved the problem, for soon the child was back asleep in her arms.

About forty minutes later, as we sat there with no word from the captain, an elderly woman about two rows in front of me rang the call button. She wanted to know if she could go to the bathroom. Embarrassed, she was forced to explain, for all nearby to hear, that she had a medical problem - a fact that soon would be shared with the entire plane. The flight attendant told the lady that she would check. Then the flight attendant went forward, and spoke on the phone to the captain. The captain came on the intercom to explain that an electrical storm was sitting over our departure route, but it appeared to be moving, so he was giving one passenger with a medical condition permission to use the lavatory. Everyone applauded. Everyone else should remain in their seats with their safety belts fastened, he said, because he hoped to be headed to Los Angeles very shortly. More applause followed.

Another hour passed - and I can assure you they pass very slowly in these circumstances - and we were still on the ground. The captain finally came on the intercom again and apologized, explaining this time that he was going to taxi to another runway to see if he could get out in a different direction. (The large man beside me wondered why he had not thought to do that an hour earlier.) But we were soon told that the new approach would not work either. However, his announcements and all the taxiing did awaken the now truly unhappy and previously sleeping child.

When the child started screaming, the distressed young mother again rang the call button. She explained to the flight attendant that the child's diapers were in the bag that the TSA had made her check. The child was screaming for reasons clear to every nose within ten feet; he wanted his dirty diaper changed. Nurse Ratched, however, had neither an answer nor any sympathy, and simply walked off. We endured about forty minutes of serious screaming until the child fell asleep, exhausted - as we all were by this time.

After three-plus hours of our sitting in a hot, smelly, dimly-lit plane packed with angry passengers, the flight was cleared for take off. Needless to say, it could have been worse. But it was just enough of a sample to give me a special empathy when I read of the ghastly examples of airlines holding their passengers hostage for as long as thirteen hours before returning to the gate. Passengers have become ill, not to mention suffering both emotionally and financially, from these situations. Surprisingly, however, few of these incidents are reported by the national news media. More remarkably, few passengers take any action after the incident to attempt to seek redress for, or draw public attention to, what they have endured.

How Airlines' Treatment of Passengers Declined From Bad to Worse after 9/11

After my own particularly dreadful wait, I spoke with an attorney friend who practices aviation law. He said that passengers have few rights in these situations, but also noted that the law on this point is less than clear. He told me that he personally prepares for such situations (when he cannot use his firm's corporate jet), thus always being ready for the worst. He also recommended audio books to pass the time.

He agreed that since the airlines have been deregulated, the quality of service has gone in the tank. On international flights, which are still subject to regulation, the standards of service are far superior, particularly on foreign-owned airlines. But foreign flights too are subject to sitting for excessive period on the tarmac from time to time.

Later, I learned that not all people are willing to give the airlines a pass when they display utter contempt for their passengers. For example, three passengers held for eleven hours on a Northwest flight in January 1999 filed a class action lawsuit. They alleged false imprisonment, along with negligence, intentional infliction of emotional distress, and breach of contract. (The breach of contract claimed was based on the contention that they were third-party beneficiaries of a lease agreement between the airline and the operator of the Detroit Metropolitan Airport that called for better service. False imprisonment, in this context, is a civil cause of action based on intentionally confining a person without the legal authority to do so.)

In response, Northwest claimed that the 1978 Airline Deregulation Act preempted state law for all claims relating to service. However, a Michigan state judge sitting in Detroit disagreed, and certified the three complaints for a class action encompassing the 7000 passengers who had spent seven to eleven hours stranded on over thirty Northwest flights during a blizzard - one so severe that every other airline had shut down operations, and returned its passengers to the terminal.

Northwest - claiming it had done nothing wrong, but apparently fearing more negative publicity - settled for $7.1 million. (An attorney on the case figured out that it worked out to about $1200 per passenger, after the lawyers took their cut, plus a few free flight vouchers if anyone ever wanted to fly Northwest again.)

Congress Looked Into the Issue of Airline Passenger Treatment, But Failed to Act

In early 2001, after two years in which passengers had experienced a growing numbers of similar situations, Congress held hearings, and was preparing to enact an aggressive airline passenger bill of rights law. The law was to address not merely false imprisonment, but also unannounced flight delays, lost baggage, and the overbooking of flights and the resultant bumping of ticketed passengers. The law also was to take on the broader problems of the dangerously aging and outmoded air-traffic control system and the need for better maintenance on planes - many of the things with which unregulated airlines now get away, to passengers' detriment.

Airline lobbyists were working overtime to block these efforts, but it was difficult for them to do so. Since members of Congress often fly on commercial flights, they had personal knowledge of the low level of service being provided the public. In early 2001, it thus appeared all but certain that Congress would mandate federal standards for better airline service. Even President George W. Bush had spoken of the problem passengers face.

Then came 9/11, and this issue disappeared. More accurately, it was set aside, and in the name of national security, airline service became even worse. According to the data that has been collected by the Bureau of Transportation Statistics, the number of taxi delays decreased in 2001, 2002, 2003, but by 2004, they had sharply increased.

The chances of one's being stranded on the tarmac are, relatively speaking, remote, although the odds of its happening to you are thousands of times better than those of your winning a lottery. Of 80 million reporting flights since 1995, about 3000 required three hours or more to taxi to takeoff. Conservatively, it is estimated that these delays involved about 300,000 people, most of whom neither said nor did anything to seek recourse after enduring the delay.

The exception to the rule, however, was Kathleen "Kate" Hanni, a real estate agent from Napa, California.

Kate Hanni Takes Up the Cause of Passengers Imprisoned for Hours on the Tarmac

On December 29, 2006, Kate Hanni was traveling on an American Airlines flight from San Francisco to Mobile, Alabama, when the flight was diverted to Austin, Texas due to a winter storm. Rather than going to a gate in Austin, however, the plane sat on the tarmac for the next 9 hours and 17 minutes. There was no food, no water, and no power. Toilets soon overflowed, and had to be closed. Finally, the captain declared an emergency and took the plane to the gate, which allowed the passengers disembark.

Ms. Hanni filed a class action lawsuit, explaining that she and other passengers suffered hunger, thirst, illness, emotional distress and financial losses when American failed to supply the planes with food or water, empty the toilets, or let passengers off. It appears that this lawsuit was settled.

In addition, Ms. Hanni formed an activist group - the Coalition for an Airlines Passengers Bill of Rights - which has lobbied federal and state lawmakers to address the problem of the abuse of air travelers. All the various proposals to protect passengers, however, have at their core requirements like those of the New York law that the U.S. Court of Appeals for the Second Circuit recently struck down, and which I mentioned at the beginning of this column.

The Devastating Effect of the Second Circuit Decision, Which Appears to Have Left Passengers Completely Unprotected

The New York law provided (and I paraphrase) that whenever airline passengers have boarded an aircraft and are delayed more than three hours on the plane prior to takeoff, the air carrier shall ensure that the passengers are provided with: (a) electric generation service to provide temporary power for fresh air and lights; (b).waste removal service in order to service the holding tanks for the on-board restrooms; and (c) adequate food and drinking water and other refreshments.

Airlines, through the Air Transport Association of America (the ATA is the airlines' trade association), fought the enactment of the New York law. After losing in the legislature, they have now won in a business-friendly New York-based federal court, on federal preemption grounds (with the very Republican judges ignoring the federalism they also promote, but not when it conflicts with big business). The Second Circuit said that this is a matter for federal law, not for a patchwork of state laws, and also held that Congress preempted the field when it first regulated and then deregulated the airlines. Thus, according to the Second Circuit's ruling, there is no law at all, either state or federal, that covers such misconduct by airlines.

The Second Circuit only had jurisdiction over the New York law, but the panel's judges noted that similar laws have been proposed by at least nine other states, including Arizona, California, Florida, Indiana, Michigan, New Jersey, Pennsylvania, Rhode Island, and Washington. If other federal circuits follow the New York ruling, none of these state laws will survive.

The Second Circuit did note, at least, that "the Department of Transportation has proposed and sought comment on several similar passenger protection measures that could provide uniform standards to deal with lengthy ground delays." The court was referring to the proposed DOT regulation for Enhancing Airline Passenger Protections, which the ATA is fighting. The ATA's position, and the thinking of the airlines, is nicely summed up in the air travel complaints blog.

In sum, with the Second Circuit ruling, the airlines have effectively made their aircraft immune from all state laws, with the possible narrow exception of state contract law, which they expressly danced around. To resolve this problem, Congress is going to have to act, for the situation is intolerable and the marketplace has not corrected itself. In Part Two of this two-part series of columns, I will explain why this Second Circuit decision has made it particularly imperative that Congress act.

Meanwhile, be advised that only American Airline appears to have voluntarily agreed that after four hours of delay, and no takeoff, the airline will bring passengers back to the terminal. This agreement potentially might give American's passengers a contractual right to damages if the airlines fails to honor its publicly-announced promise - but only in the unlikely even that there is no fine print anywhere that would protect American from honoring its pledge.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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