Air rage: choice of law for intentional torts occurring in flight over international waters.

• Author: Firak, Nancy Lee

1. AN INSTANCE OF AIR RAGE IN FLIGHT OVER INTERNATIONAL WATERS: THE HENCH CASE(1)

   Jennifer Olson, a fifteen-year veteran airline flight attendant for Delta Air Lines, was allegedly attacked and seriously injured when Christopher Bull Hench, a passenger, tried to break into the cockpit of an aircraft while it was over international waters en route from Cincinnati, Ohio to Frankfurt, Germany.(2) Ms. Olson was assigned to work in the first class section of the aircraft, adjacent to the cockpit door.(3) Mr. Hench, a passenger in the business class section of the aircraft, was separated from Ms. Olson by a bulkhead and curtain.(4)

   The flight began rather routinely.(5) As part of the preliminary flight preparation, all passengers were given the requisite safety instructions orally as well as by video.(6) These instructions included information that this was a non-smoking flight.(7)

   Around midnight, a flight attendant working in the business class smelled smoke coming from the lavatory in her work area.(8) No passengers were seen leaving the lavatory so the flight attendants decided to monitor the situation more closely.(9) The flight attendants noticed Mr. Hench, on two different occasions, exiting the lavatory in a "cloud of smoke" even after being repeatedly warned that smoking was not permitted on the flight for safety reasons.(10) The flight attendants approached Mr. Hench several times to advise him that smoking was not permitted on the flight, but he continuously ignored them by putting headphones on his head.(11)

   After several unsuccessful attempts to keep Mr. Hench from smoking, the flight attendants approached the captain.(12) Alarmed by the situation, he sent the co-pilot to speak with the disobedient passenger.(13) Mr. Hench repeatedly questioned the co-pilot's authority, put on his headset and refused to acknowledge the co-pilot's presence.(14) The co-pilot told Mr. Hench that "he wasn't finished with him" and turned toward the front of the aircraft.(15) Soon after the co-pilot walked to the front of the aircraft, Mr. Hench bolted toward the cockpit.(16) As he proceeded from business class to first class heading toward the cockpit door, he shoved Ms. Olson out of his way.(17)

   Mr. Hench reached the cockpit door and began pounding on it.(18) The pilot was alone in the cockpit, and inadvertently unlatched the door.(19) It began to open and Ms. Olson placed herself between Mr. Hench and the cockpit door.(20) The passenger continued to pound on the door, struggled with and shoved Ms. Olson.(21) In spite of equipment that muffled his hearing, the captain heard Ms. Olson being slammed against the cockpit door.(22) While struggling to keep Mr. Hench from entering the cockpit, Ms. Olson grabbed the emergency telephone to notify the captain to re-latch the cockpit door.(23) Eventually, the co-pilot returned and accompanied Mr. Hench to his seat.(24) At the request of the captain of the aircraft, an attendant "recruit[ed] two of the largest passengers she could find" to assist in restraining Mr. Hench if another altercation ensued.(25)

   Mr. Hench continued to berate the attendants making angry comments and accusations.(26) He also demanded alcoholic beverages and was aggressive and hostile when service was refused.(27) The captain confronted Mr. Hench and promised him the authorities would meet him in Frankfurt.(28) When the aircraft landed in Frankfurt, Germany, Federal Aviation Administration (FAA) officials and the local police escorted Mr. Hench off the aircraft.(29)

   As a result of the altercation with Mr. Hench, Ms. Olson alleges that she has sustained severe back, neck and other injuries that have kept her from full-time employment.(30) She alleges that she has been able to work sporadically, but continues treatment with a neurologist, physical therapist and primary care physician.(31) In addition, Ms. Olson is receiving treatment for Post-Traumatic Stress Disorder.(32)

   As will be shown, Ms. Olson's strongest cause of action lies in an intentional tort claim for battery, assault, and for intentional, or perhaps even negligent, infliction of emotional distress.(33) While this may seem obvious, complex issues arise with respect to the choice of law for acts causing injury over international waters.(34) Because this accident occurred over international waters, it is difficult to determine what state or nation's tort law and/or remedies shall apply.(35) There is little, if any, case law imposing civil liability for injuries sustained by a passenger in situations other than in an airline crash. Research has been conducted on choice of law actions arising from airline accidents that occur within the territorial waters of a particular state.(36) However, no research has been conducted on the issues that arise in a case such as Ms. Olson's. This article focuses on these issues and on one principle question: which state or nation's law should apply in a suit by a flight attendant against a passenger? We begin with a survey of the current problems occurring in the air--especially the problem of "air rage."

2. AIR RAGE

   1. Generally

      The term air rage has been coined to describe conduct occurring during air travel, which can fall anywhere on a behavioral continuum from socially offensive to criminal.(37) Air rage describes intentional acts that are highly disproportionate to motivating factors, which endanger the flight crew and/or other passengers and potentially jeopardize the safety of the aircraft itself.(38) The conduct often occurs when the plane is in the air.(39) While the term usually refers to a passenger's misconduct, some sources have applied it to intentional misconduct by the flight crew.(40) The term has also been applied to intentional conduct of an airline company manager.(41)

      The rise in air rage incidents has increased the number of injuries sustained in the air and the corresponding potential for litigation.(42) "America witnessed such an explosion in litigation concerning aviation matters that the courts have heard and decided more aviation cases within the last decade than at any other time during the history of the Nation."(43) With the current mobility of Americans, this is not likely to change in the near future. The Federal Aviation Administration's twenty-fourth annual aviation forecast, released March 26, 1999, reported that in 1998, United States airlines carried 643.3 million passengers.(44) An "increase of 2.5% is predicted for 1999 ... with [one billion] people expected to travel by air in 2010."(45)

      The air rage phenomena is relatively new, and has not been studied in an organized way. Reports of aggressive conduct during air travel have only recently been reported in the media and on the Internet although the number of reports and the outrageousness of the conduct are impressive.

      For example, one airline had to deal with an investment banker who defecated on a food cart during a flight from Buenos Aires to New York.(46) The banker was given two years of probation, three hundred hours of community service, and a five thousand-dollar fine.(47) In addition, he had to pay fifty thousand dollars in restitution to the airline and reimburse other passengers for their tickets.(48)

      Another example occurred when a passenger on a U.S. Airways flight consumed illegal drugs and struggled with a flight attendant who was blocking the passenger from forcing his way into the cockpit to bless the pilots.(49) The passenger was eventually restrained but not before he "tossed [the flight attendant] across three rows of seats [causing her to] suffer[] a separated shoulder and other injuries."(50)

      Another passenger aboard a U.S. Airways flight was refused a drink and threw a flight attendant against the door, threatening to throw her out of the plane.(51) The pilot was forced to turn the aircraft around and the authorities picked the passenger up at the airport.(52) The passenger was sentenced to four years in jail for the assault, two hundred hours of community service upon his release from jail, submission to drug and alcohol testing and restitution of $611.35 to the airline for expenses associated with turning the plane around.(53)

      A final example involves a passenger traveling to Boston who became enraged when a male flight attendant asked him to remove his radio headset during taxiing and struck the flight attendant "so hard that he sent him into the next row of seats."(54) Upon landing in Boston, the passenger was escorted off the plane by deputies.(55)

      These phenomena of air rage are not limited to American air carriers.(56) An Australian woman attacked two flight attendants and tried to force open an exit door while a plane was in the air.(57) An incident aboard a Virgin Atlantic flight involved an intoxicated passenger arguing with his wife.(58) A woman aboard a British Airways flight who was denied entry into the United States "got drunk on the return flight and went berserk, attacking cabin crew and causing mayhem."(59) A British rock star is currently serving a jail sentence after being "convicted of threatening to chop off an airline stewardess's hands."(60) An intoxicated male passenger attacked an Airtours flight attendant, reportedly "smash[ing] her over the head with a duty-free vodka bottle," that resulted in eighteen stitches.(61) In another incident, a man traveling from London to Bangkok ran about the aircraft, ripped the headphones off the head of another passenger, and bit the headphones in half when the passenger ignored him.(62) He then punched out the inner protective window of the plane's rear door.(63) The plane, carrying 395 passengers, was diverted to New Delhi.(64) British Airways reports this incident "as one of the worst cases of air rage they have ever seen."(65)

      One court has said "[a]ir travel in modern society presents formidable safety and security concerns and often passengers with criminal intentions are the source of that threat."(66) But even passengers...