United’s Removal Of Passengers May Not Have Been Legal

By: Ben Schlappig

Published: April 11, 2017

130 comments

130

In light of Sunday night’s incident on a United flight between Chicago and Louisville, an interesting discussion is starting to emerge about the legality of what United did, by refusing transport to this passenger. What seems to have happened here is that the flight wasn’t actually oversold in advance (rather it was booked to capacity), but then last minute four United employees needed to be transported to Louisville, so they could work a flight from there the next day.

What’s unusual is that they were only booked on the flight last minute, and apparently everyone had already boarded. That’s what makes this exceptionally rare, and one has to wonder how exactly that happened, especially when they had already boarded a flight that was at capacity.

So far the conversation has centered around how this passenger was involuntarily denied boarding. The Department of Transportation has specific guidelines in place for how airlines can deny boarding to passengers. However, that may not be the case at all here. First let me say that I’m not a lawyer, so take what I say with a grain of salt (though I’ve talked to some lawyer friends about this, and they seem to have a similar perspective).

The passenger wasn’t denied boarding — he had a confirmed seat, and was allowed to board and take that seat.

Later they come onboard and asked him to get off the plane. At that point that’s no longer being denied boarding, but rather being refused transport. United’s contract of carriage addresses both of these situations:

The contract of carriage lists a bunch of reasons that the airline can refuse transport to someone, though a flight being oversold after a passenger has boarded isn’t one of them. In looking at the Department of Transportation regulations, I don’t see anything that clarifies how they define “denied boarding.”

In light of that, it sure seems like this was a case of refusal to transport, rather than a case of denied boarding, since the passenger wasn’t denied boarding. If this was a refusal to transport case, then United had no legal grounds on which to refuse him transport, based on the contract of carriage.

If that’s the case, did United use police force to incorrectly enforce a contract?

When this story first emerged it sure seemed to me like United may have technically been within their rights to refuse this passenger transport, but even that isn’t looking likely at this point.

It would seem to me that once passengers have boarded, the only way to have them get off the plane is through a voluntary system, by offering compensation that they agree to. Without that, this isn’t a denied boarding case, but rather a refusal to transport case.

This has been a quickly-moving story with myriad updates. The full coverage of the United incident from the One Mile at a Time team is as follows:

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Bruce Stern Guest

May 2, 2017, 8:06 am

The Division of Transport does have clear advice regarding payment as a result of fliers "unwillingly refuted boarding," which could repay when it comes to a considerable hassle. So no matter, sector viewers claimed they were stunned the scenario unraveled the method it provided for United.

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John Hachi Guest

April 28, 2017, 2:41 am

The issue that really seems to be coming to a head is the definition of "denied boarding". In the past, and involuntary bump has been industry accepted as the definition of "denied boarding", whether the person has actually boarded or not. I have personally seen court cases where a person being ordered to vacate his seat and deplane was considered to have been "denied boarding" and every expert, lawyer, and judge in the courtroom just accepted that as an industry standard definition. The reality is that there is no definition for "denied boarding", so maybe that is something good that will come out of all this. Even the law itself clearly doesn't consider the definition of "denied boarding" to be literal. The law -- 14 CFR 250.2b -- does not define "denied boarding", but it does refer to "volunteer for denied boarding." But... how do you volunteer to be denied something? If you volunteer, then you're not being denied anything. Clearly, some new wording and a solid definition are needed to avoid this confusion in the future. I recommend "involuntary re-booking", which is more clear about the intent (missing the flight) and also clearly implies that the person will be transported in the future.

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KEVIN Gold

April 26, 2017, 3:55 pm

I am not sure how to properly format on this page, but I will offer this initial segment about obedience. These are from the Civil Aviation rules, Part 91. 91.5 Compliance with crew instructions and commands A passenger shall comply with any commands given to them by the pilot-in- command pursuant to 91.203. This is about how the PIC can give any command required to maintain safety. 91.203 Authority of the pilot-in-command Each pilot-in-command of an aircraft shall give any commands necessary for the safety of the aircraft and of persons and property carried on the aircraft, including disembarking or refusing the carriage of— (1) any person who appears to be under the influence of alcohol or any drug where, in the opinion of the pilot-in-command, their carriage is likely to endanger the aircraft or its occupants; and (2) any person, or any part of the cargo, which, in the opinion of the pilot-in-command, is likely to endanger the aircraft or its occupants. This is viewed to carry from the PIC to the FA, whether expressly or not, thru 65J below. This is from the 1990 Civil Aviation act. Note it does not say flight crew member, but crew member. 65GDisruptive conduct towards crew member (1)Every person commits an offence who, while in an aircraft,— (a)uses any threatening, offensive, or insulting words towards a crew member; or (b)behaves in a threatening, offensive, insulting, or disorderly manner towards a crew member; or (c)behaves in a manner that interferes with the performance by a crew member of his or her duties; or (d)intentionally interferes with the performance by a crew member of his or her duties. (2)Every person who commits an offence against subsection (1)(a) or (b) or (c) is liable on conviction to a fine not exceeding $5,000. (3) Every person who commits an offence against subsection (1)(d) is liable on conviction to imprisonment for a term not exceeding 2 years or a fine not exceeding $10,000. This is where we talk about delegation. 65JNon-compliance with commands given by pilot-in-command (1)Every person commits an offence who fails to comply with any commands given to the person directly by the pilot-in-command, or indirectly by the pilot-in-command through a crew member, in accordance with his or her duties under section 13 or the rules. (2)Despite section 28(6), every person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $5,000.

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Geekoid Guest

April 26, 2017, 12:37 pm

All these people talking about federal crime, yet no one posting a link to the law that says passenger must do whatever a flight attendant says.

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Dale Weatherwax Guest

April 14, 2017, 4:58 pm

http://www.washingtonexaminer.com/pilots-united-airlines-bankruptcy-never-should-have-happened/article/5954 So, to paraphrase, United reclassified a 15 billion dollar asset as a liability, declared bankruptcy, defaulted on the company pension plan, employee owned stock was allowed to plummet to near zero and was sold off at the direction of a possibly corrupt judge.

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