The clue is in the name: commercial airlines are business entities with overheads and bottom lines, but they are also service providers who are bound to comply with legislation and to observe the civil rights of those who choose to fly with them. So, what happens when security, ticket policy and commercial gain collide? Diana Stancu Godet reports from the no-fly zone.
Every individual enjoys the right to freedom of movement; to freely travel within a state and between states, providing, in the latter case, that certain travel conditions are met. Legislation does not provide, however, for a right to travel on a specific mode of transportation. As such, for travel by air, an individual needs to have a ‘contract of carriage’, more commonly known as a flight ticket with an air carrier, which operates the desired route. But what happens when the individual buys the ticket, has a confirmed reservation, respects all rules related to the check-in deadline, presents him/herself at the airport in time for the flight and yet is denied boarding or removed from the aircraft before departure?
On what grounds may a passenger be denied boarding? What are the consequences if a passenger, who has been declared free of prohibited articles, weapons and explosives, is nevertheless denied boarding on the grounds that they might be perceived to be a threat to him/herself or to the passengers or the aircraft?
‘Denied boarding’ as a concept is mentioned in specific national and European aviation regulations, and it means a refusal to carry passengers on a flight, even if they have presented themselves for boarding according to the conditions laid out in the flight ticket. However, it does not cover a situation in which there are reasonable grounds for refusing to carry a passenger on a flight – for example because of their behaviour or demeanour, health, or inadequate travel documentation – even if they presented themselves on time for the flight. The legislation in force in European Union (EC Regulation 261/2004) states that if boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them and assist them which gives the passenger a right to financial ‘compensation’ determined based on flight distance, a right to choose between reimbursement, re-routing or rebooking, and a right to ‘care’ which includes complimentary meals and refreshments, hotel accommodation, transport, phone calls, etc. in a reasonable relation to the waiting time. I believe the provisions of the regulation should be interpreted as being applicable also to situations where innocent passengers have been denied boarding as a result of a decision taken by the flight crew or by the security agents.
Denied Boarding as a Decision Made by the Crew
Air carriers reserve the right to remove passengers from an aircraft if they ‘fail to comply with or assault, threaten, intimidate or interfere with the duties of the members of the flight crew’, or if their ‘behaviour could jeopardise the safety or alter good order and discipline on board the aircraft’ (among other reasons). The aircraft commander has the authority to remove or deliver an unruly passenger from the aircraft and will do so based on strict national and international aviation regulations (1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft). In the event of an unruly passenger situation in which passenger restraint is deemed necessary, crew have immunity from criminal liability (for example, in the event of injury of the passenger), providing they had reasonable grounds for the action. This poses a dilemma to the aircraft commander; on the one hand, operational protocols dictate that, in the event of an unruly passenger incident, the flight deck shall go into lockdown – the door should not be opened – whilst on the other hand there is an argument (based on court cases which carriers have lost) that the commander should not simply accept the report of his/her crew but rather use their own judgement about the behaviour of the passenger in question to determine whether reasonable grounds exist to use the powers conferred by the regulation. During the boarding process, or whilst an aircraft is not legally ‘in flight’ – when the need to secure the cockpit is neither mandated nor so critical – aircraft commanders should be prepared to exit the flight deck to determine for themselves whether a passenger causing concern to other crewmembers or passengers should be denied carriage.
“…determination of reasonable suspicion should be based on common-sense judgements appropriate to the context…”
When an intoxicated passenger boards a flight, the crew has the right to deny boarding or ask for the passenger’s removal from the aircraft on the grounds that they jeopardise the discipline onboard, safety and security of the flight. But how many passengers have been removed from flights simply because they were speaking Arabic, or found to be dressed inappropriately (in the crew’s opinion) or even because they were working on a complex mathematical equation? In these real-world examples, the passengers’ behaviour on board was not unruly or disruptive and yet the crew decided on their removal from the aircraft because they perceived them to be a potential threat. Indeed, regulations allow air carriers to refuse the transport of a passenger who is considered a safety risk or security threat, but they do have to be able to justify their actions. However, these regulations should not be interpreted as a licence to discriminate and be unnecessarily extended to situations where their applicability is questionable. Without a doubt, security is of utmost importance; this is stressed in specific aviation regulations, and, yes, the recent aviation and non-aviation related terror attacks have created a tense atmosphere where everyone suspects everyone. But passengers, including those from different cultures, are human beings who paid for their flight ticket and who should be treated with respect, meaning any decision regarding their right to carriage should not involve any racial, ethnic or religious rationale.
When the crew does have a genuine concern about a passenger’s behaviour on board the aircraft, the action they take (e.g. his or her removal) must be based on a reasonable assessment of the threat. Of course, there is no way to tell if a person is a potential threat to the aircraft, the flight or the passengers just by looking at him/her. But certainly there are behavioural analysis techniques that can differentiate between the behaviour of a passenger with malintent and that of the usual, non-threatening passenger. Crewmembers should not only have some degree of competence at identifying relevant behavioural indicators but should also trust their gut feeling and initial impulse and follow security procedures. The determination of reasonable suspicion should be based on common-sense judgements appropriate to the context, as aviation security and the right-to-fly concepts go hand in hand.
“…a United Airlines passenger was violently dragged down the aisle and off the aircraft as apparently the flight had been overbooked…”
Technically speaking, denied boarding or removal of a passenger is considered an ‘involuntary denied boarding’ situation and the passenger is entitled to compensation and assistance according to the applicable regulation. Nonetheless, international legislation still does not provide an adequate deterrent to unruly behaviour on an international flight, mainly because of some jurisdictional issues, which will hopefully be solved once the 2014 Montreal Protocol for the modification of the 1963 Tokyo Convention enters into force. In the meantime, some states have adopted national legislation, which deals with jurisdictional issues over incidents that occur on board foreign registered aircraft that land in their territory. So what are the legal consequences of unruly behaviour on board aircraft when there is no legislation applicable? Actually, where there is an international or domestic legislative gap the consequence is that passengers are left unpunished, which undermines the intended deterrent effect of the provisions of the 1963 Tokyo Convention. Hence, air carriers are often dealing with the issue themselves, and usually the only ‘penalty’ an unruly passenger will receive is a refusal of future transportation with the same air carrier. Nonetheless, it should be noted that we are talking here about criminal acts, and it should not be left to the industry to tackle them.
If a passenger is denied boarding or removed from a flight due to a simple misunderstanding, the passenger would certainly attempt to negotiate with the air carrier for reasonable compensation, and, with regards to this point, the customer service aspect is particularly relevant.
Denied Boarding Due to Flight Overbooking
Anyone can be kicked off an aircraft against their will due to an overbooked flight, as it is standard practice for air carriers to sell more tickets than there are seats in order to fill the spaces that no-show passengers leave behind. Overbooking is not illegal per se, and this policy allows air carriers to deny boarding to passengers if the flight is overbooked. Passengers agree to conditions of overbooking when they reserve their flights, the terms being mentioned in ‘contracts of carriage’. So how does it work? When an operating air carrier reasonably expects to deny boarding on a flight, it shall first call for volunteers to surrender their reservations in exchange for benefits under conditions to be agreed between the passenger concerned and the operating air carrier. In practice, the process of seeking volunteers and negotiating the terms of compensation usually happens at the gate, and not once the passenger is on board the aircraft. However, this was not the case in the now infamous incident of 9 April, when a United Airlines passenger was violently dragged down the aisle and off the aircraft as apparently the flight had been overbooked and there were not enough passengers willing to give up their seats.
Certainly air carriers reserve the right to apply an overbooking policy, but one might wonder if this practice is entirely ethical as passengers too have a right to be treated respectfully, fairly and with dignity.
Denied Boarding Due to Airport Security Procedures
The archway metal detector, X-ray machine and explosives trace detection systems are installed on airport premises to prevent the passage of prohibited articles, weapons and explosives in order to thwart acts of unlawful interference. However, this is only one layer of aviation security procedures, or at least it should be. These technologies serve as much as a deterrent as they do a detector. At most airports, as an additional layer of security, procedures are designed to also identify passengers with negative intent and stop them from getting airside or on board an aircraft. What are the consequences, however, when a passenger is cleared by technology but is still denied boarding as s/he presents a cause for concern to a security agent?
A common method for screening airline passengers prior to embarking on US and Israel bound flights involves the detection of ‘suspicious signs’ presented by a passenger during a short interview between the security agent and passenger. In the interview, the agent asks a series of security and flight/trip-related questions that are unpredictable and tailored to every passenger. During questioning, the security agents would look for deception or threat indicators, which focus on aspects of a passenger’s verbal and non-verbal behaviours, disposition (e.g. nervousness) and appearance (e.g. inappropriate dress for the intended trip) with the clear goal of identifying something abnormal for the context and passenger’s situation.
If the security agent is not satisfied with the outcome of the interview (i.e. suspicious signs were detected but not resolved; honesty was not established, etc.) the passenger is identified for further screening under a separate process. If the passenger is denied boarding because the security procedures take too long, and the passenger therefore misses his/her flight, I believe legislation should be interpreted in favour of the passenger, which would mean the air carrier considering the passenger as an ‘involuntary denied boarding’ and entitle the passenger to compensation and assistance.
It is the responsibility for all agencies at the airport involved in applying security controls to ensure that measures are applied reasonably and proportionately to the threat in order to avoid situations whereby a passenger is denied boarding without just cause.
“…it is essential to find a balance between the reasonableness of security measures and civil liberties…”
To avoid unreasonable denial of boarding of passengers who have the right to fly, not only as a fundamental right but also as a provision of the contract of carriage with an air carrier, it is essential to find a balance between the reasonableness of security measures (including actions of the members of the crew) and civil liberties. Passengers of any culture, religion or ethnicity who have a confirmed flight reservation, present themselves on time for the flight, and do not present any concerns related to health, safety or security have a legitimate interest in being treated respectfully, fairly and with dignity.
Diana Stancu Godet is the managing director of Safe and Secure Skies based in Brussels. With a Masters in Air & Space Law, she started her aviation career at the Romanian Aviation Academy as a legal advisor, whilst also providing courses on international aviation legislation. She became an inspector at the Romanian Civil Aeronautical Authority, in which capacity she organised on-site audits. She was later appointed head of the Air Operations Surveillance Unit with responsibility for the process of certification of the national air operators, performing safety and security audits and assessing security, safety and quality management systems.