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United Airlines' passenger ejection – some thoughts on the legal position

Travel contracts: The legal issues surrounding United Airlines' ejection of passenger Dr Dao

The video footage of United Airlines’ passenger Dr. David Dao being physically removed from his seat caused an unwelcome sensation on social media and a decline in the value of United Airlines’ shares as viewers expressed their disapproval.

Commercially we are all aware that travel carriers routinely overbook because so many passengers fail to show up for travel. If this was not done capacity would be wasted and this inefficiency would drive up fares for us all. But what about the legal issues? Here’s a brief look at them, as they may not have been considered by commentators on social media who were above all responding to the unedifying video footage this incident led to.

The legal issues

1. Did the airline have a contractual right to ask the customer to vacate his seat under the terms of the ticket sale agreement? – Probably yes, buried in the small print somewhere maybe without the airline needing to offer a specific reason or maybe for reasons including a need to re deploy stranded crew members, as was the case here.
2. If a customer breaks their agreement with a carrier by refusing to surrender their seat when so requested, what can the airline do?
   • Remind them of the terms of the ticket sale agreement and explain that a refusal to honour them would give the carrier the right to sue for damages for breach of contract.
   • But before seeking damages the airline also has a duty to mitigate its loss. The obvious way to do this would be by asking if any other passenger was prepared to give up their seat, if needs be offering them an incentive to do so such as a refund or bonus cash or a cheap ticket offer.
3. It’s hard to understand why this was not done or did not work in this case.
4. Let’s assume all of the passengers sit tight and refuse to budge (most unlikely, everyone has their price). The airline could decide to redeploy its stranded crew some other way. For some reason, in this case, someone decided to remedy this probable breach of contract by resort to physical force. Since this happened in Chicago that’s a matter for Illinois law and perhaps also US aviation law.
5. In Jersey, physical coercion is normally the preserve of the Police for criminal issues and of the officers of the Viscount’s depat for civil matters. On an airliner on the ground in Jersey that role would be fulfilled, in the absence of a Jersey Air Marshal force by officers of the States of Jersey Police who will surely have statutory rights to exercise reasonable physical force and to overwhelm resistance.
6. Who took the fateful decision to use force – was it an United Airlines' employee, for whose conduct the airline would be vicariously liable, or was it an independent Govt employed Air Marshal? If the latter, did the way the Marshals exercised their authority break the chain of liability between Dr Dao and United, which might have said – we agreed the Marshals should remove you but not that they should use excessive force to do so.
7. Are the Marshals under the ultimate supervision of the Captain and, if so, how is he to know what is going on and exercise that authority now that pilots have to be sealed into the cockpit?
8. Apart from the contractual and employer’s liability issues, there are security ones too. Once we board an airliner or a vessel we place ourselves in the hands of the Captain and the crew. If they give an order they naturally expect to be obeyed, but problems will arise if the order appears to the passenger and his fellow travellers to be purely commercial and not security related. Perhaps that was the view taken by Dr Dao, but did that exonerate him from his duty to obey the Captain and the crew? Unsurprisingly some commentators are saying it did not.

Plenty of points to ponder here!