Articles from the Silver Shemmings Ash Team on contractual matters, recent case law changes and items of interest in the construction and property world

Air Rage And The Law by Jon Sharp

January 8, 2019 | Silver Shemmings

Now we have all been there, we have all sat on a flight next to a person we would rather not have sat next to in normal circumstances. This is usually harmless enough – your fellow passenger may have fallen asleep on your shoulder, snored rather loudly, talked to you when frankly you just want to sleep, or your fellow passenger may have been of a size that that has made you rather uncomfortable, but no lasting damage.

A few months ago though, I had an experience at the other end of the scale. On a flight to Edinburgh, I sat in my aisle seat, with another passenger in the window. The flight was nearly fully loaded, and the middle seat was empty. Both my fellow passenger and I hoped it would stay that way, so we could have a little more room.

The seat was taken by the last person to board the plane. She firstly asked if I would sit in the middle seat as she “was a nightmare when she sat in the middle seat”, I declined and was called something rather unpleasant in return. I had noticed a rather odd smell as she sat down which I thought it was perfume but soon realized that this was more or less pure alcohol. She then proceeded to abuse the airline, talk to herself, loudly, every word followed with a plethora of obscenities. She stood up before the seat belt sign was off as she needed the toilet urgently, and then ordered more drink. She was served, as I suspect the stewardesses thought it would create less trouble than declining, but she was so intoxicated she could not find the money to pay for it.

Worse was to come – on arrival at Edinburgh, there was the inevitable wait for the steps (as an aside, all airports seem to have a lack of steps – I am thinking of going in to business making them) and this drove her into a rage. A torrent of foul mouthed abuse was hurled at the cabin crew, which I will not repeat here. A lady with young children asked politely if she would mind her language, she received comments suggesting that she was rather tense, was descended from our canine friends, and needed to get out more. Her husband rose and I have little doubt that he would have taken violent action, but fortunately the steps arrived, the door opened, and passengers parted to allow her to exit first, which she did with a final salvo of abuse at the cabin crew.

This scenario is becoming increasingly common, there is the recent incident of a man abusing a women on the plane in a disgraceful manner, such that if those words were repeated in a restaurant, the man would have been arrested. The point is that such behavior is likely to cause other passengers to react, and this could lead to an outbreak of violence – bad enough on the ground, but imagine in the air?

So what does the law say about such behavior once on board an aircraft?

The starting point is the Airlines own terms and conditions, below are EasyJet’s:

18. Conduct Onboard and at the Airport and the Right to Refuse Carriage
18.1 General Requirements
18.1.1 Passengers are reminded that in accordance with applicable Law, the captain is in command of the aircraft and every person on board shall obey his or her lawful commands. All our captains are given authority to direct passengers who misbehave, are disruptive, or otherwise cause problems to resolve the issues as best they can in all the circumstances. This may include the use of physical restraint and, where possible, removal from the Flight of such persons.
18.1.2 If you conduct yourself on board the aircraft or at the airport so as to:
(a) endanger the aircraft or any person or property on board or at the airport; and/or
(b) obstruct the crew or airport staff in the performance of their duties; and/or
(c) fail to comply with any instruction of the crew or airport staff; and/or
(d) use any threatening, abusive or insulting words towards the crew or airport staff or behave in any of these ways towards the crew or airport staff; and/or
(e) behave in a disorderly, unpredictable, unsafe or aggressive manner or in a manner to which another passenger may reasonably object, We may take such measures as we deem necessary to prevent continuation of such conduct, including your restraint or removal from the aircraft or the airport, as well as termination of your continued travel on a flight. You may be prosecuted for offences committed on board the aircraft or at the airport. You will be liable to us for all costs arising from your improper conduct on board the aircraft or at the airport. If a diversion has been necessitated by a passenger’s behaviour, resolution of the issue may involve handing over those passengers to security or legal enforcement agents at the diversion point.
18.1.3 If as a result of your conduct we decide to divert the aircraft for the purpose of offloading you, then you must pay to us all costs and expenses which we incur of any nature whatsoever as a result of, or arising out of, that diversion. If a passenger causes any damage whatsoever or his or her actions cause easyJet to incur any costs, easyJet will hold that person or persons liable for any costs, damages or resulting liabilities incurred. Any such costs incurred by us as a result of the provisions in this Article 18.1.3 may be levied on you via deduction of such costs from the credit card or debit card used to make your booking
18.1.4 In accordance with UK civil aviation safety requirements, all easyJet Flights are non-smoking. Passengers should note that smoking is strictly forbidden, and measures will be taken to stop any passenger smoking on board an easyJet aircraft.
18.1.5 At our discretion, easyJet will supply and serve, where appropriate, alcoholic beverages to passengers onboard. However, passengers are prohibited from consuming alcoholic beverages on easyJet flights where the passengers or other third parties have supplied the alcohol

Most airlines have such policies – but the issue lies with “ behave in a manner which another passenger may reasonably object to”. A few lads on a plane being a bit excitable as they are going on holiday may be objectionable to some passengers, but not others. So this puts the airline in a difficult position and airlines have to be careful – Regulation EC261/2004 removes virtually any defences to compensation claims from passengers therefore wrongful removal of a passenger would lead to further civil claims.

Whilst on the ground, with the aircraft door open, a disruptive passenger can be arrested by the authorities in the country where the aircraft is located. Practically, that is the approach that most airlines take – there is a disruptive passenger, call the police, and let them make the decision to arrest. If the Police make that decision, the airline no longer have to make a judgement call. Once the door is closed however, the position changes, the relevant law is the law of the country where the aircraft is registered – the Captain takes over as in effect the policeman and it is his judgement call as regards disruptive passengers. This is exactly the same as a ship at sea but when the aircraft crosses into a country’s airspace, especially the US who claim to have Special Aircraft Jurisdiction over all aircraft in it’s airspace, akin to a ship in territorial waters who have to obey the laws in the those waters, then the position as to which legal system takes responsibility for the disruptive passenger becomes complex.

Normally, the Captain radio’s ahead to report a disruptive passenger and the arriving countries authorities take the appropriate action, but a challenge to the jurisdiction of the arriving country by the disruptive passenger is not unheard of!

My view is that it will only be a matter of time before we have a serious air rage incident – the law needs to be clear and robust as to whose responsibility the disruptive passengers are and we need an international agreement setting out the consequences of such actions no matter which country you are in, and clear guidance as to which country prosecutes disruptive and potentially life-threatening passengers.

Finally, just for once, I am on the side of the airline – it should be the case that the airline is immune from any type of claim if it exercises its discretion in relation to refusal to board, or removal before flight, of any passenger.

Author Jonathan Sharp is a Consultant Solicitor at Silver Shemmings Ash. Jonathan has practiced in the City for close to 30 years and has a wealth of experience in the insurance industry and has a number of reported cases that demonstrate his abilities as a leader in the areas of dispute resolution, insurance, marine, aviation, general commercial matters and social media. Jonathan regularly presents seminars and lectures to the public insurers banks and other lawyers, on a range of topics, including social media

He has also conducted a number of Arbitrations, before both the LMAA and ICC and dealt with boundary disputes, defended planning applications, and property transfers after matrimonial issues. Jonathan’s cases speak for themselves – his clients trust him to deal with complex litigation in an efficient manner

At Silver Shemmings Ash, we provide seminars and training alongside our core activities in contentious and non-contentious matters, the purpose if these is to facilitate a greater knowledge and understanding of construction and property law. There remains a considered lack of training in such areas for companies and one to which we look to address

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