First a caveat: I am not a lawyer. I’m certainly open to expert legal opinion demonstrating that I’ve got this wrong.
Second, in my humble opinion United fucked up badly even if they are technically right according to law. But it seems to me they’re not. Hat tip to mimi9 for this comment which led me down this path.
Here is United's Contract of Carriage. That’s the legal document which governs the terms of contract for a passenger flying aboard United. I’ve looked through the whole thing and it appears to me the relevant portions are rules 5, 21 and 25.
It appears there were two issues regarding the flight in question, one of which was handled properly, the other which was not. First, before passengers boarded they were told the flight was overbooked. Rule 5(G) says of this situation:
All of UA’s flights are subject to overbooking which could result in UA’s inability to provide previously confirmed reserved space for a given flight or for the class of service reserved. In that event, UA’s obligation to the Passenger is governed by Rule 25.
Rule 25 starts out like this:
RULE 25 DENIED BOARDING COMPENSATION
- Denied Boarding (U.S.A./Canadian Flight Origin) - When there is an Oversold UA flight that originates in the U.S.A. or Canada, the following provisions apply:
- Request for Volunteers
- UA will request Passengers who are willing to relinquish their confirmed reserved space in exchange for compensation in an amount determined by UA (including but not limited to check or an electronic travel certificate). The travel certificate will be valid only for travel on UA or designated Codeshare partners for one year from the date of issue and will have no refund value. If a Passenger is asked to volunteer, UA will not later deny boarding to that Passenger involuntarily unless that Passenger was informed at the time he was asked to volunteer that there was a possibility of being denied boarding involuntarily and of the amount of compensation to which he/she would have been entitled in that event. The request for volunteers and the selection of such person to be denied space will be in a manner determined solely by UA.
- Boarding Priorities - If a flight is Oversold, no one may be denied boarding against his/her will until UA or other carrier personnel first ask for volunteers who will give up their reservations willingly in exchange for compensation as determined by UA. If there are not enough volunteers, other Passengers may be denied boarding involuntarily in accordance with UA’s boarding priority:
- Passengers who are Qualified Individuals with Disabilities, unaccompanied minors under the age of 18 years, or minors between the ages of 5 to 15 years who use the unaccompanied minor service, will be the last to be involuntarily denied boarding if it is determined by UA that such denial would constitute a hardship.
- The priority of all other confirmed passengers may be determined based on a passenger’s fare class, itinerary, status of frequent flyer program membership, and the time in which the passenger presents him/herself for check-in without advanced seat assignment.
...
And so on. This is the rule we see everybody citing regarding how this situation should be dealt with. But note the subject of this rule: DENIAL OF BOARDING. Everything in this rule, which is the rule all the analysis has revolved around, applies before the passengers have boarded.
And indeed, United did find a volunteer to take a later flight. They then proceeded to board the plane.
That gets us to the second event. After the passengers were all aboard, airline personnel came on board and announced that due to the fact they needed to transport four airline employees, four passengers needed to get off the plane. At this point, the relevant rule is not Rule 25, it’s Rule 21.
Here is Rule 21 in full:
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:
- Breach of Contract of Carriage – Failure by Passenger to comply with the Rules of the Contract of Carriage.
- Government Request, Regulations or Security Directives – Whenever such action is necessary to comply with any government regulation, Customs and Border Protection, government or airport security directive of any sort, or any governmental request for emergency transportation in connection with the national defense.
- Force Majeure and Other Unforeseeable Conditions – Whenever such action is necessary or advisable by reason of weather or other conditions beyond UA’s control including, but not limited to, acts of God, force majeure, strikes, civil commotions, embargoes, wars, hostilities, terrorist activities, or disturbances, whether actual, threatened, or reported.
- Search of Passenger or Property – Whenever a Passenger refuses to submit to electronic surveillance or to permit search of his/her person or property.
- Proof of Identity – Whenever a Passenger refuses on request to produce identification satisfactory to UA or who presents a Ticket to board and whose identification does not match the name on the Ticket. UA shall have the right, but shall not be obligated, to require identification of persons purchasing tickets and/or presenting a ticket(s) for the purpose of boarding the aircraft.
- Failure to Pay – Whenever a Passenger has not paid the appropriate fare for a Ticket, Baggage, or applicable service charges for services required for travel, has not paid an outstanding debt or Court judgment, or has not produced satisfactory proof to UA that the Passenger is an authorized non-revenue Passenger or has engaged in a prohibited practice as specified in Rule 6.
- Across International Boundaries – Whenever a Passenger is traveling across any international boundary if:
- The government required travel documents of such Passenger appear not to be in order according to UA's reasonable belief; or
- Such Passenger’s embarkation from, transit through, or entry into any country from, through, or to which such Passenger desires transportation would be unlawful or denied for any reason.
- Safety – Whenever refusal or removal of a Passenger may be necessary for the safety of such Passenger or other Passengers or members of the crew including, but not limited to:
- Passengers whose conduct is disorderly, offensive, abusive, or violent;
- Passengers who fail to comply with or interfere with the duties of the members of the flight crew, federal regulations, or security directives;
- Passengers who assault any employee of UA, including the gate agents and flight crew, or any UA Passenger;
- Passengers who, through and as a result of their conduct, cause a disturbance such that the captain or member of the cockpit crew must leave the cockpit in order to attend to the disturbance;
- Passengers who are barefoot or not properly clothed;
- Passengers who appear to be intoxicated or under the influence of drugs to a degree that the Passenger may endanger the Passenger or another Passenger or members of the crew (other than a qualified individual whose appearance or involuntary behavior may make them appear to be intoxicated or under the influence of drugs);
- Passengers wearing or possessing on or about their person concealed or unconcealed deadly or dangerous weapons; provided, however, that UA will carry law enforcement personnel who meet the qualifications and conditions established in 49 C.F.R. §1544.219;
- Passengers who are unwilling or unable to follow UA’s policy on smoking or use of other smokeless materials;
- Unless they comply with Rule 6 I), Passengers who are unable to sit in a single seat with the seat belt properly secured, and/or are unable to put the seat’s armrests down when seated and remain seated with the armrest down for the entirety of the flight, and/or passengers who significantly encroach upon the adjoining passenger’s seat;
- Passengers who are manacled or in the custody of law enforcement personnel;
- Passengers who have resisted or may reasonably be believed to be capable of resisting custodial supervision;
- Pregnant Passengers in their ninth month, unless such Passenger provides a doctor’s certificate dated no more than 72 hours prior to departure stating that the doctor has examined and found the Passenger to be physically fit for air travel to and from the destination requested on the date of the flight, and that the estimated date of delivery is after the date of the last flight;
- Passengers who are incapable of completing a flight safely, without requiring extraordinary medical assistance during the flight, as well as Passengers who appear to have symptoms of or have a communicable disease or condition that could pose a direct threat to the health or safety of others on the flight, or who refuse a screening for such disease or condition. (NOTE: UA requires a medical certificate for Passengers who wish to travel under such circumstances. Visit UA’s website, united.com, for more information regarding UA’s requirements for medical certificates);
- Passengers who fail to travel with the required safety assistant(s), advance notice and/or other safety requirements pursuant to Rules 14 and 15;
- Passengers who do not qualify as acceptable Non-Ambulatory Passengers (see Rule 14);
- Passengers who have or cause a malodorous condition (other than individuals qualifying as disabled);
- Passengers whose physical or mental condition is such that, in United’s sole opinion, they are rendered or likely to be rendered incapable of comprehending or complying with safety instructions without the assistance of an escort. The escort must accompany the escorted passenger at all times; and
- Unaccompanied passengers who are both blind and deaf, unless such passenger is able to communicate with representatives of UA by either physical, mechanical, electronic, or other means. Such passenger must inform UA of the method of communication to be used; and
- Passengers who are unwilling to follow UA’s policy that prohibits voice calls after the aircraft doors have closed, while taxiing in preparation for takeoff, or while airborne.
- Any Passenger who, by reason of engaging in the above activities in this Rule 21, causes UA any loss, damage or expense of any kind, consents and acknowledges that he or she shall reimburse UA for any such loss, damage or expense. UA has the right to refuse transport, on a permanent basis, to any passenger who, by reason of engaging in the above activities in this Rule 21, causes UA any loss, damage or expense of any kind, or who has been disorderly, offensive, abusive, or violent. In addition, the activities enumerated in H) 1) through 8) shall constitute a material breach of contract, for which UA shall be excused from performing its obligations under this contract.
- UA is not liable for its refusal to transport any passenger or for its removal of any passenger in accordance with this Rule. A Passenger who is removed or refused transportation in accordance with this Rule may be eligible for a refund upon request. See Rule 27 A). As an express precondition to issuance of any refund, UA shall not be responsible for damages of any kind whatsoever. The passenger’s sole and exclusive remedy shall be Rule 27 A).
I’ve read through this half a dozen times now and I fail to see what part applies to a passenger passively sitting in his assigned seat.
Bottom line: As far as I can see, United had no legal basis for ordering this passenger off the flight.
Tuesday, Apr 11, 2017 · 7:05:34 PM +00:00
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jrooth
This opinion column by John Banzhaf, Professor of Public Interest Law at George Washington University, fully supports the interpretation I have given in this diary:
In my belief, United Airlines is incorrectly citing the wrong federal rule to justify its illegal request to force a passenger already boarded and seated to disembark in order so they could make room for crew members being flown to a new assignment.
...
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.
…
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.
I’m already stretching fair use with this quote, so please follow the link to read the whole thing. He shoots down all the counter-arguments I’ve seen offered in comments here.