In my belief, United Airlines is citing the wrong federal rule to justify its illegal request to force a passenger already boarded and seated to disembark so they could make room for crew members being flown to a new assignment.
Under a federal rule [14 CFR 253], commercial airlines are governed by a document known as a “Contract of Carriage” [COC], a legally binding contract which, among other things, protects the legal rights of passengers, and imposes legal duties upon carriers. United’s COC contains two distinct sections: Rule 21 entitled “Refusal of Transport,” and Rule 25 entitled “Denied Boarding Compensation.”
@United overbook #flight3411 and decided to force random passengers off the plane. Here’s how they did it: pic.twitter.com/QfefM8X2cW
— Jayse D. Anspach (@JayseDavid) April 10, 2017
United is incorrectly citing the denied boarding compensation rule in its COC, and the federal rule upon which it is based [14 CFR 250.5], to justify requiring a passenger who has already been permitted to board and taken a seat to involuntarily disembark.
But that rule, as its title and history clearly establish, applies only if an airline wishes to deny boarding to a passenger, not to remove a passenger who has already boarded an airplane.
The current federal rule grew out of a situation in which Ralph Nader was denied the opportunity to board a flight, even though he had a valid ticket. He sued, in a case which went to the U.S. Supreme Court, and it was eventually held that he was entitled to compensation if he was denied boarding.
As a direct result, the government adopted a rule which permits a carrier to deny boarding to a ticketed passenger, but only after going through a process of seeking other passengers to give up their seats.
United’s Rule 25, as its title clearly implies, applies only to denied boarding. Thus, it uses the word “denied boarding,” and variants such as “deny boarding,” but says nothing about requiring passengers who have already boarded to give up their seats.
Indeed, it states in part, using the word “boarding” twice, that: “other passengers may be denied boarding involuntarily in accordance with UA’s boarding priority.
Clearly, a “boarding priority” does not include or imply an involuntary removal or refusal of transport. Moreover, under well accepted contract law, any ambiguous term in a contract must be construed against – and in the way least favorable to – the party which drafted it.
So, even if United argued that there was some ambiguity in “denied boarding” based upon “boarding priority” – and that it could possibly mean removal based upon a removal priority – a court would be forced to rule against this interpretation because United drafted the contract.
This denied boarding rule, and similar rules applying to Great Britain and the European Union, only permit denying boarding, not removing a passenger who has already boarded. The situations under which airlines are permitted to have a passenger who has already been boarded disembark are contained in a completely separate section the United’s COC entitled “Refusal of Transport.”
Rule 21, entitled “Refusal of Transport,” is very different because it clearly and expressly covers situations in which a passenger who has already boarded the plane can be removed. It states clearly: “Rule 21, Refusal of Transport, UA shall have the right to refuse to transport or shall have the RIGHT TO REMOVE FROM THE AIRCRAFT AT ANY POINT, any passenger for the following reasons.” [emphasis added]
The rule, which unlike the denied boarding rule does provide for removal “from the aircraft at any point,” lists some two dozen justifications including: unruly behavior, intoxication, inability to fit into one seat, medical problems or concerns, etc. But nowhere in the list of some two dozen reasons is there anything about over booking, the need to free up seats, the need for seats to accommodate crew members to be used on a different flight etc.
This is very important because, under accepted legal principles, a law or rule which lists in detail several different factors must be read not to include other factors which were deliberately not included or listed. So, for example, if a rule provides that a license to drive a car may be forfeited by violations of laws governing speeding, intoxication, reckless driving, or driving without a license, it cannot be read to also permit license revocation for parking violations, or for having a burned out license plate illumination light.
In this case, the failure to include over booking, or the need for additional seats, in a long list of justifications for removing a passenger “from the aircraft at any point” means that passengers may not be removed for these non-listed reasons.
The conclusion is further reinforced by the fact that there is a completely separate section of United’s COC which does deal expressly with the need for additional seats, but it provides that the concern must be dealt with by preventing passengers from boarding, not ejecting them once they have boarded.
United also seems to suggest not only that the denied boarding justification applies to ordering an already boarded passenger to give up its seat, but that the carrier did all that it could under the rule to deal with its need to accommodate additional crew members as passengers.
But in asking other passengers, as required by law, to give up their seats for monetary compensation, United offered far less than the minimum specified by the federal rule. It also, although it clearly and legally could have done so, refused to offer more – although the Washington Post recently explained how airlines will sometimes offer passengers thousands of dollars to give up their seats.
Finally, it appears that United is seeking to blame the passenger, claiming that when asked to give up his seat, he acted belligerently – and citing a rule which requires that passengers obey the orders of the flight crew. But, such a requirement applies only to orders which are lawful.
If, for example, the flight crew had ordered two passengers to fight each other for the amusement of the other passengers, or to take off all their clothing, the passengers would not be required to comply, and their forceful removal could not be based upon refusing to follow unlawful orders.
Once someone in possession of a valid ticket has been seated – whether on an airplane, a train or bus, or at the symphony – he cannot be ordered to give up that which he has a valid contractual right to enjoy, simply because his seat is needed for someone else.
While it is of course permissible to remove a seated person is such a situation for unruly behavior, drunkenness, to deal with a medical emergency, etc. – as spelled out here in United’s Rule 21 – simple over booking can only be dealt with by denying boarding originally, pursuant to United’s Rule 25.
John F. Banzhaf III is a professor of public interest law at the George Washington University Law School.
This is an opinion piece. The views expressed in this article are those of just the author.
