SAFETY IN FLIGHT WHEN CAN COMMERCIAL PILOTS REMOVE PASSENGERS WHO MAY BE A THREAT?

By Oliver Beiersdorf and Catherine E. Kiernan ISTOCK.COM/OSTILL © PHOTO BY: PHOTO BY: Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. n May 2018, a woman was removed from a Spirit Air- FAA: Rights of Air Carriers to Exclude or Refuse lines flight from Atlanta to Las Vegas because she to Accept Passengers allegedly ran past a attendant after being told she Congress’s purpose in enacting the FAA was “to pro- was too late to board, refused to leave the plane when mote safety in aviation and thereby protect the lives of Iasked by the flight crew, and screamed profanities at the persons who on board aircraft.”4 To help accom- flight crew.1 Ultimately, all of the other passengers had plish that goal, 49 U.S.C. § 44902(b) of the FAA, to deplane before officers could escort the woman off known as “permissive refusal,” provides pilots with broad of the plane. All of this occurred while the pilots were authority to remove passengers: focusing on completing preflight checks and preparing the aircraft for takeoff to ensure a safe flight. This inci- (b) Permissive refusal.—Subject to regulations of the dent, like many others where passengers are removed Under Secretary, an air carrier, intrastate air carrier, or from commercial flights, was recorded, posted on social foreign air carrier my refuse to transport a passenger or media, and highlighted by various news organizations. property the carrier decides is, or might be, inimical to The woman removed from the Spirit flight safety.5 streamed the entire event via “Facebook Live,” and the video has been viewed more than 4.5 million times on In other words, the stands in the role Facebook alone. of the air carrier and can decide whether to remove a With heightened social awareness regarding the passenger from a flight for safety reasons. This discre- safety of commercial flight as well as evolving airline tion is critical for a pilot in command, who is, according regulations, it is critical that a pilot in command have to the Code of Federal Regulations, “during flight time, in the authority and discretion to remove passengers command of the aircraft and crew and is responsible for who may be a threat to safety. An airplane in flight is the safety of the passengers, crewmembers, cargo, and a unique environment with special risks, and a pilot the airplane.”6 in command often must make quick decisions based Implied preemption of state tort claims. State tort solely on information relayed from other crew mem- claims relating to a passenger’s removal from an aircraft bers. While the public may be able to watch a video for safety reasons are preempted by § 44902(b). While of a situation on a plane that results in a passenger’s the FAA does not contain an express preemption pro- removal multiple times and consider alternatives and vision, § 44902 impliedly preempts state tort claims outcomes in hindsight, pilots and flight crew have to because it is a federal standard directly on point and react in real time to ensure the safety of all passengers constitutes pervasive federal regulatory control in that in an enclosed environment while flying thousands of area. This was recently reaffirmed by the U.S. District feet in the air. Court for the Southern District of California in Regis- Congress, by statute, explicitly gave safety the high- ter v. United Airlines, Inc., in which the court dismissed est priority in air commerce,2 and the Federal Aviation the plaintiff’s state tort causes of action, including false Act (FAA) includes a provision providing the pilot imprisonment, intentional infliction of emotional dis- in command with broad authority to remove passen- tress, negligence, and negligent infliction of emotional gers that are or may be a threat to safety.3 The Tokyo distress, allegedly arising from the plaintiff’s removal Convention provides pilots in command with similar from an airplane due to a confrontation with a flight discretion on international flights, although the limited attendant.7 The court held that “[t]he FAA preempts case law interpreting the Tokyo Convention provides a all state law impinging upon the circumstances under less deferential standard. which an air carrier may remove a passenger from a This article discusses (1) the rights of air carriers to flight for safety reasons.”8 exclude or refuse to accept passengers on domestic and “Arbitrary or capricious” standard. Given the def- international flights under § 44902(b) of the FAA, (2) erential standard in § 44902(b), the majority of courts preemption of claims under § 1305(a)(1) of the FAA hold that the removal or refusal to transport a passenger (commonly known as the Airline Deregulation Act), cannot give rise to a claim for damages unless the car- and (3) the rights of air carriers to exclude or refuse to rier’s decision was “arbitrary or capricious.”9 The U.S. accept passengers on international flights under the Court of Appeals for the First Circuit in Cerqueira v. Tokyo Convention. American Airlines, Inc. clarified that “[t]he arbitrariness

57 TORT TRIAL & INSURANCE PRACTICE SECTION THE BRIEF ■ SUMMER 2018 Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. TIP Under the FAA, a pilot’s or capriciousness standard here safety of the aircraft, the pilot does any “discriminatory animus for her decision to is not the same as reasonableness not have an obligation to make a removal from the flight,” instead 10 remove a under a negligence standard.” thorough inquiry into the informa- insisting that she was not a threat to domestic Some courts, including the First tion received or the sources of that safety and that the flight attendants airline and Eleventh Circuits, have gone a information or to conduct an inde- arbitrarily removed her from the air- 14 20 passenger step further and have interpreted § pendent investigation. This is true craft. The court held that cannot give 44902 as an “affirmative grant” of even if it is later determined that rise to a permission to the air carrier, thus the crew exaggerated or made false [s]uch conclusory statements and damages creating a presumption that the statements to the pilot concerning bare assertions that [the plain- claim unless pilots’ decisions and actions were the events leading up to the passen- tiff’s] behavior was not inimical 15 the decision reasonable and placing the bur- ger’s removal. to safety—despite her admitted was arbitrary den on the plaintiffs to show that § In Mercer v. Southwest Air- failure to comply with safety regu- or capricious. 44902 is inapplicable.11 lines Co., the Northern District of lations—do not plausibly support To determine whether a pilot’s California clarified that a plain- a claim that her removal from the decision to remove a passenger was tiff cannot avoid the preemptive flight was arbitrary or capricious.21 arbitrary or capricious, courts con- effect of § 44902 by alleging that sider the facts and circumstances the pilot’s belief that the plain- In support of its holding, the court known by the pilot at the time she tiff was inimical to the safety of the reaffirmed that formed her opinion.12 This includes flight was factually inaccurate.16 consideration of (1) the limited The captain in Mercer ordered that [t]here is no duty on the part of facts known by the pilot at the time, the plaintiff be removed because he the captain to investigate recom- (2) the time constraints in making was believed to be a security threat mendations by flight attendants the decision, and (3) the general based on representations made by for removal of a passenger, and the security climate surrounding the the flight attendants. The plain- captain is entitled to take repre- events.13 Because the pilot often has tiff sued, alleging that § 44902(b) sentations of flight attendants at to make rapid decisions to ensure did not apply to his claims because face value.22 the comment that he was a “secu- rity threat” was merely a pretext for A plaintiff may, however, prove Oliver Beiersdorf is a partner at racial discrimination.17 The court that a decision by an air carrier to Reed Smith and is based in New disagreed, holding that remove or refuse a passenger was York City. He represents foreign and arbitrary or capricious if she can domestic airlines, manufacturers [p]laintiff misses the point. Defen- show that no responsible decision and distributors, ship owners and dant has it right that whether or maker would credit the information operators, and other corporate not the captain was correct in his provided.23 clients in federal and state courts belief that Plaintiff posed a secu- For example, in Cordero v. Cia throughout the United States. rity threat, the fact that the safety Mexicana de Aviacion, S.A., the Beiersdorf’s experience includes of the flight was in question at the Ninth Circuit reinstated the jury representing clients in multidistrict time Defendant acted is what is verdict in favor of the plaintiff, mass tort and other high-stakes relevant to this analysis.18 holding that there was ample evi- litigation. He has tried high-profile dence in the record from which the cases for several notable clients. In Xiaoyun “Lucy” Lu v. AirTran jury could conclude that the airline Beiersdorf also regularly counsels Airways, Inc., the Eleventh Cir- “acted unreasonably in exclud- clients outside of the courtroom on cuit held that conclusory statements ing [the plaintiff] without even the litigation risk management, contracts, by a plaintiff that her behavior most cursory inquiry into the com- and insurance issues. Catherine did not threaten the safety of the plaint against him.”24 In that case, E. Kiernan is an associate in Reed flight were insufficient to prove the plaintiff boarded a regularly Smith’s Complex Litigation Group. that a pilot’s decision to remove scheduled nonstop flight from Los She focuses her practice on defending the passenger was arbitrary or capri- Angeles to Mexico City. In addi- general aviation manufacturers, cious.19 In that case, the plaintiff tion to a long delay on the ground, aircraft component manufacturers, was removed from her flight based the pilot announced that they were and commercial airlines throughout on the flight attendants’ represen- going to make an unscheduled stop the United States. They may be tations that the plaintiff refused to to pick up additional passengers reached at, respectively, obeiersdorf@ comply with safety regulations and along the way. At that point, a pas- reedsmith.com and ckiernan@ would not turn off her phone during senger near the plaintiff became reedsmith.com. takeoff. The plaintiff did not allege loud and insulted the pilot, and the

58 THE BRIEF ■ SUMMER 2018 TORT TRIAL & INSURANCE PRACTICE SECTION Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. pilot warned the passenger that he occur in the terminal that Pwreemption of Claims under would be ejected if he did not con- are unrelated to any decision made the Airline Deregulation Act trol himself. When the plaintiff by the pilot in command during Preemption under § 1305(a)(1) of tried to re-board the plane after the . For example, in the recent the FAA, commonly known as the intermediary stop, he was refused case Doe v. Delta Airlines, the U.S. Airline Deregulation Act (ADA), entry: he was told that he insulted District Court for the Southern Dis- provides additional protection that the captain and the crew. The trict of New York held that § 44902 helps to ensure air carriers have plaintiff responded that they had did not preempt the plaintiff’s state discretion to remove potentially mistaken him for the other passen- law tort claims arising from her dangerous passengers without fear of ger who previously insulted the pilot alleged altercation with a gate agent legal consequences.27 and flight crew. Nonetheless, the Before the ADA was enacted, air carrier refused to reconsider its air carriers’ routes, rates, and ser- decision and reissued the plaintiff’s vices were regulated under the ticket for the following day. The preemptive FAA of 1958 by the Civil Aero- The Cordero court reversed the nautics Board.28 Because the FAA trial court and upheld the jury’s ver- effect of § 44902(b) contained a saving provision pre- dict against the airline, holding that serving preexisting statutory and the jury was properly instructed on does not preempt common-law remedies, air carriers the test for determining whether an were also regulated by the states.29 air carrier acted reasonably (i.e., a claims arising In 1978, Congress enacted the fact-specific test based on what the ADA, the purpose of which was airline knew at the time it formed from situations to eliminate federal regulations of its opinion without consideration of rates, routes, and services to allow other facts later disclosed by hind- that occur in the those aspects of air transporta- sight). The court held that there tion to be set by market forces.30 was ample evidence to conclude To further that purpose, the ADA, that the airline acted unreason- that are unrelated although it did not repeal the sav- ably in not making any inquiry into ing provision of the FAA, included the complaint despite the plaintiff’s to any decision an express preemption provision assertion that he was being mistaken to “ensure that the States would for another passenger. The court made by the not undo federal deregulation with noted that, at trial, the plaintiff regulation of their own.”31 That introduced the testimony of another pilot in command express preemption provision pro- passenger who confirmed that the during boarding. vides that states are prohibited plaintiff had not made any untoward from “enact[ing] or enforc[ing] a remarks or gestures to the captain or law, regulation, or other provision flight crew. having the force and effect of law The plain language of § and subsequent arrest for intoxica- related to [an air carrier’s] price, 44902(b), as well as case law tion in the airport terminal.25 The route, or service.”32 interpreting the scope of pilots’ dis- court held that the plaintiff’s claims In Morales v. Trans World Air- cretion, provides pilots with the were not preempted because the lines, Inc., the U.S. Supreme Court critically important right to remove altercation occurred in the termi- held that the phrase related to in passengers whom they believe might nal, the identities of the gate agent the ADA expresses a “broad pre- be adverse to safety (even if their and person that reported the passen- emptive purpose” and that the concerns turn out to be unfounded) ger to the police were unknown, and ADA preempted the use of state while not precluding relief for pas- there was no indication that their consumer protection laws to regu- sengers in extreme situations where actions were based on the pilot’s late airline advertising, concluding air carriers take unreasonable decision to deny the plaintiff board- that “relat[es]” means “ha[s] a con- actions based on information that ing.26 The court held that, based on nection with, or reference to, could not be considered credible the available evidence, a jury could airline rates, routes, or services.”33 based on the circumstances. find that the plaintiff’s altercation The express preemption provision Airport terminal claims. The in the airport terminal was entirely of the ADA has been interpreted preemptive effect of § 44902(b) is disconnected from the boarding pro- to extend to claims arising out of limited in that it does not preempt cess and the air carrier’s decision to an airline’s refusal to allow a pas- claims arising from situations that deny boarding. senger to board because those

59 TORT TRIAL & INSURANCE PRACTICE SECTION THE BRIEF ■ SUMMER 2018 Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. claims concern the denial or inad- crew arrested her out of spite. The that the second prong of the test equate provision of the airline’s court found that only the alleged for preemption was not met, and “services.”34 spiteful arrest of the plaintiff was therefore the plaintiff’s state tort Preemption of state law claims actionable.39 claims could continue because related to a “service.” Courts con- The court held that the flight sider three factors in determining crew’s actions in asking the plain- where the essence of the claim whether the ADA preempts state tiff to be quiet while they were is that the air carrier abused its law claims.35 First, the court must giving safety instructions clearly authority to provide a given ser- determine whether the activity in implicated a service provided by vice, the air carrier is not entitled question implicates a service pro- the airplane (e.g., safety instruc- to the protection of [the ADA].43 vided by the airline. Many courts, tions) and was not outrageous or including the Fifth and Elev- enth Circuits, have adopted the definition of service in the ADA The ADA does not shelter airlines specifically to include boarding pro- cedures and handling.36 from suits that do not allege violation Second, the court must determine whether the claim affects the air- of state-imposed obligation but line service “directly or tenuously, remotely, or peripherally.”37 Finally, instead only seek to recover for if the claim implicates an air- line service and affects the service the airline’s breach of its own, directly, the court must determine self-imposed undertakings. whether the underlying allegedly tortious conduct was reasonably necessary to the provision of the unreasonable even if they talked The court reasoned that even service. Analyzing the “reasonable- to the plaintiff in a rude manner. if the plaintiff’s claims directly ness” inquiry of the third prong, the The court also held that the pilot’s implicated the service at issue, Southern District of New York in decision about whether to take off her claims would survive because, Rombom v. United Air Lines, Inc. or return to the gate was “unques- under the plaintiff’s version of the held that tionably” a service provided by the facts (that she voluntarily left the airline because “such a decision plane), arresting the plaintiff was [i]f the tortious act did not occur determines whether the passen- not necessary to promote safety as during the service in question or gers will get to their destination.”40 “she ceased to pose any danger after the tortious act did not further The decision to return to the gate the first asked for the provision of a service in a was not outrageous or unreason- quiet and she departed the plane reasonable manner, the state tort able because the plaintiff did not quietly.”44 claim should continue.38 have any evidence that the pilot’s Similarly, the U.S. Court of decision was “motivated by any Appeals for the Fourth Circuit The court’s analysis in Rombom improper or malevolent scheme.”41 in Smith v. Comair, Inc. held that demonstrates that the preemption Rather, the evidence indicated that although tort claims can be pre- analysis under the ADA is claim the pilot simply relied upon infor- empted under the ADA if they specific and can result in differ- mation received from the flight relate to a price, route, or service of ent treatment for multiple claims crew. an air carrier, claims that arising from the same flight. In As to the plaintiff’s arrest after Rombom, the plaintiff’s tort claims landing, the court found that such stem[ ] from outrageous conduct centered around three distinct an action only implicates a service on the part of an airline toward a actions taken by the flight crew. “if it is the only way to remove a passenger will not be preempted She alleged that she was injured passenger who refuses to disem- under the ADA if the conduct because (1) the flight crew acted in bark.”42 As the airline asserted that too tenuously relates or is unnec- a “rude” and “unprofessional” man- police were summoned because the essary to an airline’s service.45 ner when they told her to be quiet plaintiff refused to disembark, the during the preflight safety briefing, court agreed that this action impli- The court noted that if an airline (2) the captain decided to return cated a service provided by the held a passenger without a safety or to the gate, and (3) the flight airline. However, the court found security justification, a claim arising

60 THE BRIEF ■ SUMMER 2018 TORT TRIAL & INSURANCE PRACTICE SECTION Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. from that action would not be pre- than these rare circumstances, a U.S. case interpretation. To empted because it would not relate pilot is protected in her ability date, Eid v. Alaska Airlines, Inc. is to any legitimate service provided to promptly make time-sensitive the only U.S. court case interpret- by the airline.46 decisions to remove unruly or dan- ing the Tokyo Convention.51 In Contract-based claims not pre- gerous passengers without having to that case, a group of nine plain- empted. By its express terms, the conduct an independent investiga- tiffs alleged that they were forced ADA does not shelter airlines tion. This allows the pilot to focus to disembark an international flight from suits that do not allege vio- on the important job of assuring a based on a flight attendant’s uncor- lation of state-imposed obligation safe flight for passengers and crew. roborated allegation that their but instead only seek to recover for conduct had caused her to “los[e] the airline’s breach of its own, self- Tokyo Convention: Rights of control of the first-class cabin.”52 imposed undertakings. For example, Air Carriers on International The Eid court declined to adopt in Chouest v. American Airlines, Flights the “arbitrary and capricious” stan- Inc., the court held that claims aris- The Convention on Offences and dard for a pilot’s decision to restrain ing out of injuries sustained on a Certain Other Acts Committed on or remove passengers. Instead, the tour bus provided by the airline as Board Aircraft, commonly referred court applied an objective negli- part of a vacation package were not to as the Tokyo Convention, lim- gence standard of reasonableness, preempted by the ADA because its the liability of the air carrier for which it stated was consistent with the provision of ground transporta- intentional flights when a passen- the drafting history and plain lan-

On remand and after nine years of litigation, the Eid case resulted in a trial verdict in favor of the airline because the jury found that the pilots’ actions were reasonable.

tion by an airline is not a service as ger’s claims arise from actions taken guage of the Tokyo Convention defined in the ADA.47 by the pilot or flight crew to pre- requiring the pilot to have “rea- The cases interpreting the ADA serve order and safety on board.48 sonable grounds” to take action.53 reinforce the protections provided Article 6 of the Tokyo Conven- Applying that standard, the Eid to air carriers and ensure that state tion specifically authorizes the pilot court held that a jury could find law cannot undermine federal reg- in command of an international that it was inappropriate for the ulations. Because the permissive flight to “take reasonable measure pilot in command to immediately refusal provision in § 44902(b) and including restraint” when he “has divert the plane to Reno, Nevada, the preemption clause of the ADA reasonable grounds to believe” that based on the uncorroborated both can be interpreted to preempt a passenger “committed, or is about statement of the flight attendant claims arising from an air carrier’s to commit” a criminal offense or without asking follow-up questions decision to exclude or refuse to an act that jeopardizes the safety of or looking through the cockpit accept a passenger on a domestic the aircraft or “good discipline on window to view the cabin.54 The flight, defendants commonly move board.”49 The Tokyo Convention court emphasized that a jury could to dismiss under both theories. further provides in Article 10 that, conclude that a reasonable cap- While defendants have both tain should have tried to find out statutes as potential sources of [f]or actions taken in accordance “something” before undertaking an immunity for pilots’ and air carri- with this Convention, neither emergency landing.55 ers’ decisions to refuse or remove the aircraft commander, any The dissent in Eid criticized the a passenger, courts conduct a fact- member of the crew, any pas- majority for failing to understand specific analysis under both § senger, the owner or operator of the deferential standard imposed by 44902(b) and the ADA. Thus, the aircraft, nor the person on § 44902(b) and also contended that a plaintiff may still have legal whose behalf the flight was per- the adoption of an arbitrary or capri- recourse in the exceptional situ- formed shall be held responsible cious standard is consistent with ation where an air carrier acted in any proceeding on account of the objectives of the Tokyo Con- outrageously and unreasonably or the treatment undergone by the vention, which deems “individual committed a tortious act unrelated person against whom the actions freedoms an important but second- to the services it provides. Other were taken.50 ary goal” of the convention.56

62 THE BRIEF ■ SUMMER 2018 TORT TRIAL & INSURANCE PRACTICE SECTION Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The dissent also noted that the Arab Emirates, the International deference in any review of majority misconstrued the hold- Air Transport Association, the actions taken by him or her ing by the Israeli court in the 2006 International Federation of Air in accordance with this Con- case Zirky v. Air Canada, which Line Pilots’ Associations, and the vention and any actions taken at the time was the only other International Union of Aero- shall be assessed in light of the published decision interpreting space Insurers submitted a working facts and circumstances actually the Tokyo Convention’s reason- paper with a proposed amend- known to him or her at the time ableness standard in Article 6.57 ment to Article 10 of the Tokyo that those actions were taken.65 The dissent argued that the Zirky Convention.61 court’s interpretation of Article The working paper discussed This standard would have ensured 6 was in line with the plain lan- the Eid decision and the dangers that interpretation of the Tokyo guage of the Tokyo Convention associated with its imposition of Convention was consistent with and established a deferential stan- an objective reasonableness stan- the deference provided to pilots on dard similar to the arbitrary and dard requiring the pilot to make domestic flights under the FAA and capricious standard applied to deci- that pilots and flight crew would sions by pilots in command under some sort of evaluative enquiry know the limits of their discretion the FAA. In support, the dissent about the behaviour of the pas- regardless of a flight’s destination. noted that the Zirky court held that sengers in question to determine Unfortunately, the recommenda- the proper standard for reasonable- whether reasonable grounds tions in the working paper regarding ness conferred “extensive and wide exist to use the power conferred the definition ofreasonable grounds authority” upon the captain and by the [Tokyo] Convention.62 in Article 6 were not adopted in the emphasized that “facts are not to be Montreal Protocol 2014. Because examined by hindsight . . . but at The working paper emphasized the standard for reasonable grounds the time of the actual event.”58 that such an interpretation was is undefined, it remains to be seen The Eid court’s interpretation problematic because whether other courts will adopt the is significantly different from the Eid court’s less deferential objective strong protections afforded under protection from legal proceed- reasonableness in controversies aris- § 44902(b) and appears to require ings for the airline and its ing under the Tokyo Convention. that pilots take the time to inves- employees under Article 10 tigate the legitimacy of their crew’s of the convention is critical if Conclusion representations about events occur- crews are to have the confidence in modern society can ring in the cabin despite their to deal with any challenge to present significant safety and secu- primary duty to safely pilot the safety and security on board an rity concerns, and the pilot in aircraft. aircraft.63 command is required to make deci- Interestingly, despite the less sions swiftly based on information deferential standard, on remand In support of this view, the work- provided by the crew while at the and after nine years of litigation, ing paper also included an index same time continuing to safely plan the Eid case resulted in a trial ver- discussing how the reasonable the flight or pilot the aircraft. A dict in favor of the airline because grounds standard in Article 6 has pilot seeking to ensure a safe flight the jury found that the pilots’ been or likely would be inter- must be confident that she has the actions were reasonable.59 preted by different jurisdictions authority and discretion to remove Proposed amendments to the around the world. The working a potentially dangerous passen- Tokyo Convention. After Eid, paper noted that “[t]he diver- ger without fear that a court could on April 4, 2014, the Interna- gence in the case law on this second-guess her decision. With- tional Organization issue clearly demonstrates the dif- out that high level of discretion, adopted the Protocol to Amend ficulty that courts have had in § 44902 of the FAA, the ADA, the Convention on Offences and applying this key provision of the and Articles 6 and 10 of the Tokyo Certain Other Acts Committed Convention.”64 Convention cannot have the criti- on Board Aircraft at Montreal The working paper urged that cal, practical impact necessary to (Montreal Protocol 2014).60 In an Article 10 be amended to add an ensure that commercial air travel attempt to clarify and unify courts’ additional paragraph providing continues to be safe. interpretation of the “reasonable that In the example of the May 2018 grounds” standard in Article 6 and removal of the passenger from a in light of the less deferential stan- [t]he aircraft commander will Spirit Airlines flight, the pilot dard announced in Eid, the United be accorded a high degree of may have been presented with a

63 TORT TRIAL & INSURANCE PRACTICE SECTION THE BRIEF ■ SUMMER 2018 Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. disruptive passenger who could 21. Id. at 661–62. 42. Id. at 224. threaten the safety of the aircraft 22. Id. at 661. 43. Id. and those on board. The discre- 23. Id. 44. Id. tion afforded to pilots under the 24. Cordero v. Cia Mexicana de 45. Smith v. Comair, Inc., 134 F.3d FAA should allow them to remove Aviacion, S.A., 681 F.2d 669, 672 (9th 254 (4th Cir. 1998). potentially dangerous passengers Cir. 1982). 46. Id. at 259. with confidence and thus protect 25. 129 F. Supp. 3d 23 (S.D.N.Y. 47. Chouest v. Am. Airlines, Inc., everyone on board. n 2015). 839 F. Supp. 412, 418 (E.D. La. 1993). 26. Id. 48. Convention on Offences and Notes 27. Id. Certain Other Acts Committed on 1. Michael Bartiromo, Dis- 28. Northwest, Inc. v. Ginsberg, Board Aircraft, Sept. 14, 1963, 20 rputive Spirit Airlines Passenger 134 S. Ct. 1422 (2014). U.S.T. 2941, 704 U.N.T.S. 219. Refuses to Leave, Forces Whole 29. Id. 49. Id. art. 6. Flight to Deplane, Fox News (May 30. Northwest, 134 S. Ct. at 1424 50. Id. art. 10. 11, 2018), www.foxnews.com/ (citing Morales v. Trans World Air- 51. 621 F.3d 858 (9th Cir. 2010). travel/2018/05/11/disruptive-spirit- lines, Inc., 504 U.S. 374 (1992)). 52. Id. at 869. airlines-passenger-refuses-to-leave- 31. Morales, 504 U.S. at 378. 53. Id. at 866–67. forces-whole-flight-to-deplane. 32. 49 U.S.C. § 41713(b)(1) 54. Id. at 869. html. (1997); see also Northwest, 134 S. Ct. 55. Id. at 869–70. 2. 49 U.S.C. § 40101(a)(1) (2000). at 1429. 56. Id. at 885. 3. Id. § 44902. 33. Morales, 504 U.S. at 384. 57. Civil File No. 1716-05 A (Haifa 4. In re Mex. City Aircrash of 34. Williams v. Trans World Air- Magistrate Ct. 2006). October 31, 1979, 708 F.2d 400 ,406 lines, Inc., 509 F.2d 942, 948 (2d Cir. 58. Eid, 621 F.3d at 882. (9th Cir. 1983); see also Rauch v. 1975). 59. Ginena v. Alaska Airlines, Inc., United Instruments, Inc., 548 F.2d 35. Rombom v. United Airlines, 04-cv-1304-MMD-CWH (D. Nev. 452, 457 (3d Cir. 1976). Inc., 867 F. Supp. 214 (S.D.N.Y. Mar. 4, 2013). 5. 49 U.S.C. § 44902(b). 1994); Williams, 509 F.2d at 948; 60. Protocol to Amend the Con- 6. 14 C.F.R. § 121.533(d) (2018). Chouest v. Am. Airlines, Inc., 839 F. vention on Offences and Certain 7. 2017 WL 784288, at *2 (S.D. Supp. 412, 415–16 (E.D. La. 1993). Other Acts Committed on Board Air- Cal. Mar. 1, 2017). 36. Koutsouradis v. Delta Air Lines, craft at Montreal, Apr. 4, 2014. 8. Id. Inc., 427 F.3d 1339, 1343 (11th Cir. 61. Int’l Conference on Air Law, 9. Williams v. Trans World Air- 2005); Branche v. Airtran Airways, Amendment to Article 10 of the Tokyo lines, Inc., 509 F.2d 942, 948 (2d Cir. Inc., 342 F.3d 1248, 1257 (11th Cir. Convention 1963 (UAE, IATA, 1975); Cerqueira v. Am. Airlines, Inc., 2003); Hodges v. Delta Airlines, Inc., IFALPA, & IUAI, Working Paper, 520 F.3d 1, 14 (1st Cir. 2008). 44 F.3d 334, 335 (5th Cir. 1995). DCTC Doc. No. 15, 2014), www.icao. 10. Cerqueira, 520 F.3d at 14. 37. Rombom, 867 F. Supp. at 222 int/Meetings/AirLaw/Documents/ 11. Id.; Xiaoyun “Lucy” Lu v. (citing Morales, 504 U.S. at 389). DCTC_15_en.pdf. AirTran Airways, Inc., 631 F. App’x. 38. Id. 62. Id. ¶ 2.6. 657, 661 (11th Cir. 2015). 39. Id. at 223. 63. Id. ¶ 2.10. 12. Ruta v. Delta Airlines, 322 F. 40. Id. 64. Id. ¶ 2.8. Supp. 2d 391, 397 (S.D.N.Y. 2004); 41. Id. 65. Id. ¶ 2.12. Williams, 509 F.2d at 948. 13. Cerqueira, 520 F.3d at 14. 14. Id. 15. Al-Qudhai’een v. Am. W. Air- lines, Inc., 267 F. Supp. 2d 841, 848 (S.D. Ohio 2003). 16. Mercer v. Sw. Airlines Co., 2014 WL 4681788, at * 5 (N.D. Cal. Sept. 19, 2014). 17. Id. 18. Id. (emphasis in original). 19. 631 F. App’x 657 (11th Cir. 2015). 20. Id. at 661.

64 THE BRIEF ■ SUMMER 2018 TORT TRIAL & INSURANCE PRACTICE SECTION Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.