SC Lawyer, Jan. 2004, #7. Post September 11 aviation law: a proliferation of litigation, allegations of racial discrimination and prosecutions of unruly passengers.

• Author: By Mark C. Fava

South Carolina Lawyer

2004.

SC Lawyer, Jan. 2004, #7.

Post September 11 aviation law: a proliferation of litigation, allegations of racial discrimination and prosecutions of unruly passengers

South Carolina LawyerJanuary 2004 Post September 11 aviation law: a proliferation of litigation, allegations of racial discrimination and prosecutions of unruly passengersBy Mark C. FavaThe tragic events of September 11, 2001, dramatically changed many aspects of our lives. No aspect has been more drastically impacted than air travel. Since September 11, courts have been faced with litigation as a result of the terrorists' attacks, allegations of air carrier racial discrimination and actions involving unruly passengers. This article provides a brief overview of these hot topics in domestic aviation law.

The airline as a common carrier

Air disasters result in multi-million dollar litigation. In some cases, with evidence of pilot error or mechanical malfunction, the airline's burden of overcoming the "common carrier" standard of care is difficult. "A public carrier is not the insurer of its passengers' safety. It is, however, required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport." Schwamb v. Delta Air Lines, 516 So.2d 452 (La. Ct. App. 1988). It was more than a year before plaintiffs sued the air carriers due to the 9/11 plane crashes. Before 9/11, lawsuits were typically filed within days of an accident. The litigation and subsequent appeals last for years.

The 9/11 litigation now appears to be headed in that direction. The Air Transportation Safety and System Stabilization Act, Pub. L. 107-42, 115 Stat. 230 (2001), passed by Congress on September 22, 2001, governs 9/11 litigation against the air carriers. The Act specifies that the Southern District of New York Federal District Court has exclusive and original jurisdiction over all civil actions. Section 408(b)(3). The substantive law, including the applicable choice of law provision, is governed by the law of each crash site - either New York, Pennsylvania or Virginia. Section 408(b)(2). Judge Alvin K. Hellerstein is the presiding judge, and his rulings can be found at www.nysd.uscourts.gov. The Act specifically caps the air carriers' liability for all compensatory and punitive damages to the limits of their insurance policies. Section 408(a).

The Victim Compensation Fund

Most unprecedented, in the Act, Congress implemented a Victim Compensation Fund to compensate the injured and the personal representatives of the more than 3000 killed. Sections 401-407. New York attorney Ken Feinberg, the appointed special master of the Fund, reviews all claims and decides financial awards with finality. Fund applicants waive their right to sue air carriers although they can proceed against foreign terrorists and their supporters. Section 405(c)(3)(B). As of mid December 2003, the master had issued 1368 awards out of a total of 4534 death claims. For those claims, the average award was $1.8 million with the median award being $1.4 million. With respect to injury claims, the master had issued 400 awards. The lowest award was $500, and the highest amount awarded to date of $7.9 million was given to a burn victim survivor. The deadline for filing for the Fund was December 22, 2003. Highly informative updates on the Fund's progress can be found at its Web site, www. usdoj.gov/victimcompensation.

The Fund has been the subject of criticism. With noneconomic damages limited to $250,000 for death claims for single individuals and the master's ability to offset collateral sources, many criticized awards as being artificially low and a political precursor to tort reform. Early on, a group of potential claimants sued the special master claiming he was abusing his discretion by limiting damage awards. Judge Hellerstein rejected the claimants' arguments, and the Second Circuit affirmed his decision. Colaio v. Feinberg, 262 F. Supp.2d 273 (S.D.N.Y. 2003), aff'd in part, appeal dismissed in part, Schneider v. Feinberg, 345 F.3d 135 (2d Cir. 2003). However, critics should remember that the Fund is not designed as a traditional tort recovery system in which one has to endure years of litigation and must prove negligence to be awarded damages that in turn will be reduced by expenses and a contingency fee. Instead, Congress designed it as a remedial measure to provide fair and rapid financial relief. Several talented South Carolina attorneys have provided exceptional pro bono representation for South Carolina claimants. See sidebar on page 37.

The proliferation of litigation

With respect to those who have elected to pursue a traditional legal remedy against the air carriers, the air carriers have been divided into two groups. The first group is composed of the airlines whose aircrafts were directly involved in the horrific terrorist hijackings - United and American. The second group of peripheral carriers is made up of all other defendant air carriers. Just about every carrier with a ticket counter at one of the three hijacker departure terminals is now a defendant. Although air carriers recognize a duty to their own passengers on their own aircraft if negligence is proven, early in the litigation, the carriers filed motions to dismiss the claims of the ground damage victims asserting that there was no foreseeable legal duty to those victims, especially by the peripheral carriers. The South Carolina mother of decedent Scott Powell, filed one of the first cases on behalf of her son who was working as a civilian computer contractor at the Pentagon when the terrorists crashed American Flight 77 into the building. Powell v. Argenbright, Security et al., No. 02 CV10160 (S.D.N.Y. filed Dec. 23, 2003). In their motions to dismiss, the defendants also argued that preemptive federal regulations governed the carriers' acts.

Two days before the second anniversary of 9/11, Judge Hellerstein rejected the defendants' arguments holding that not only were the hijackings foreseeable, but also that the air carriers owed a duty to the ground damage victims. In re September 11 Litigation, 280 F. Supp.2d 2791 (S.D.N.Y. 2003). Using very broad language, the court distinguished little between the primary carriers and the peripheral carriers with respect to foreseeability and legal duty. Stating that absent some discovery it was premature to dismiss any defendants, the court denied the defendants' motions including that of the aircraft manufacturer Boeing against whom a claim for negligent design of the cockpit doors survived. Id. at 290-97.

Subsequently, approximately 46 new defendants were added to the litigation including many other air carriers, airport security screening companies and screening equipment manufacturers. Hundreds of new cases were filed in a proliferation of the 9/11 litigation. The court later denied the defendants' request for leave to file an interlocutory appeal to the Second Circuit. In re September 11 Litigation, No. 21 MC97, 2003 WL 22251325 (S.D.N.Y. Oct. 1, 2003). By the end of October 2003, approximately 362 actions had been filed against all defendants.

Discovery has now begun, although it is limited with respect to the peripheral carriers. For the air carriers, almost all documents requested by the plaintiffs contain "sensitive security information," the dissemination of which is prohibited by federal regulations, thereby requiring an independent review by the Transportation Security Agency to determine if they can be released to the plaintiffs. See 49 C.F.R. § 1520 (2002).

In addition to some of the more traditional plaintiff firms who historically specialize in aviation litigation, the Motley Rice firm in Mt. Pleasant has filed numerous cases in the 9/11 litigation. Mary Schiavo, a recent addition to that firm, was at one time the Department of Transportation (DOT) Inspector General and a frequent critic of aviation safety and the oversight of the FAA. Prior to joining the firm, she was a member of the 9/11 litigation Plaintiffs' Executive Committee. Motley Rice is also representing victims in lawsuits against the alleged terrorist financial support groups that originally included as defendants two members of the Saudi royal family. See Tony Bartelme, Local Lawyers Battle Saudi Princes in Court, The Post & Courier, Oct. 18, 2003. However, on November 14, 2003, in a surprising move, the Federal District Court for the District of Columbia held that the Saudi princes were immune from any liability and dismissed them from the lawsuits. Burnett v. Al Baraka Inv. and Dev. Corp., 274 F.Supp.2d 86 (D.D.C. 2003).

Under the extended New York wrongful death statute, plaintiffs have until March 10, 2004, to file their lawsuits. Plaintiffs' counsel must file amended master complaints by the end of March with the defendants' filing answers to the amended master complaints by the end of April. The deadline for defendants to serve cross-claims and third party claims is June 1, 2004. Order, In re September 11 Litigation, No. 21 MC97, (S.D.N.Y. Oct. 24, 2003).

Although the litigation is still in its earliest stages, it presents challenges for both sides. The discovery has the potential to be monumental. The court, the federal government and the plaintiffs must resolve the issue with respect to the production of sensitive security documents. The plaintiffs' claims will have to survive another round of dispositive motions that Judge Hellerstein stated he will entertain. Finally, proving negligence against each and every defendant for shocking terrorist attacks against the United States will be no easy task. Should domestic air carriers or private screeners really be held liable for acts of terrorism against the United States when the federal government assessed the terrorist threat and set the standards for aviation screening? Congressman John Mica, chairman of the House Aviation Subcommittee recently stated: "[T]he federal government was at fault for failing to set standards and enact rules that could have prevented the hijackings. On Sept. 11, no federal rules were in place to stop hijackers from carrying box cutters or plastic knives onto aircraft, nor were there uniform standards for private screeners." John L. Mica, Bring Back Private Screeners, USA Today, 24A, Nov. 26 2003.

The air carriers, facing significant financial duress, are now faced with years of costly litigation. Although their insurers will pay much of the litigation expense, the end result will be an exacerbation of an already fragile aviation insurance market with premiums that have skyrocketed since 9/11. One thing is sure at this point - the litigation is going forward and will likely be the most significant litigation of the century.

Allegations of airline racial discrimination

Since 9/11, there have also been numerous racial discrimination claims made against air carriers. The DOT has likewise investigated these complaints resulting in enforcement actions against major carriers. As public carriers, "[a]n air carrier - may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex or ancestry." 49 U.S.C. § 40127 (2002). Although an air carrier cannot discriminate, the airline captain is granted wide discretion in denying boarding. The decision to deny a passenger boarding or remove a passenger will be upheld unless it is arbitrary or capricious. "The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft." 14 C.F.R. § 91.3(a). This standard is engrained in the theory that safety is paramount. Any doubt with respect to a passenger's conduct is best resolved on the ground - not in the air. In most cases, while passengers claim discrimination because of their race, the crew claims safety was a factor in their decision.

As a result of the DOT investigations, the DOT filed an enforcement case in April 2003 against American Airlines attempting to impose a $65,000 civil penalty for various alleged incidents of denied boarding involving racial discrimination. The great majority of those incidents occurred in the months after 9/11. That case is currently pending before the DOT administrative law judge. Enforcement Proceeding, American Airlines, Inc., Violations of 49 U.S.C. §§ 40127, 41310, 41702, 41712, OST-2003-15046-6. American is strongly defending the case. In its answer, American contends: "In these extraordinary circumstances, the pilots-in-command were doing exactly what they were taught to do and what they were instructed to do by the President, the FAA, American and the traveling public - making difficult, time-sensitive decisions on the basis of facts and circumstances known to them at the moment, at all times erring on the side of safety."

On November 19, 2003, United Airlines, facing a similar federal enforcement case, entered into a consent order with the DOT denying all allegations, but committing to provide annual civil rights training for its employees for the next three years at a cost of up to $1.5 million. Consent Order, United Air Lines, Compliance with 49 U.S.C. §§ 40127, 41310, 41702, 41712, OST 2003-14194, Nov. 19, 2003.

Interestingly, the first post-9/11 civil cases of individual passengers alleging racial discrimination have resulted in favorable air carrier rulings. The case of Al-Qudhai'een v. America West, 267 F. Supp.2d 841 (S.D. Ohio 2003), is an excellent example of the captain's broad removal discretion. In November 1999, two Saudi passengers boarded an America West flight from Phoenix to Washington, D.C. with a scheduled layover in Columbus, Ohio. Likely influenced by the events of 9/11, the court's summary judgment opinion was not issued until the spring of 2003. In that case, during the boarding process, the plaintiff, Mr. Al-Qudhai'een, ignored the flight attendant's instructions to remain seated, claiming he wanted to sit next to his Saudi traveling companion. Once in flight, although assigned a seat in the economy section, he walked to the first class section, tried to open the cockpit door and attempted to use the forward lavatory. After being told that the forward lavatory was for first class passengers, he went to the aft lavatory. On return to his seat, he asked a flight attendant several questions about the duration of the Ohio layover and whether they would be on the same aircraft to D.C. Relying entirely on conversations with the flight attendant, the captain decided that while on the Ohio layover, both passengers would be deplaned for questioning. Upon arrival in Ohio, they were escorted off the plane in handcuffs and interrogated for four hours by law enforcement including the FBI. Subsequently, when determined not to be a threat, they were released. America West apologized to them and upgraded them to first class for the trip to D.C. Id. at 843-44.

Plaintiffs' suit for discrimination and a number of state law claims was dismissed by summary judgment. The court recognized that the Federal Aviation Act gives the air carrier the right to "refuse to transport a passenger or property the carrier decides is or might be inimical to flight safety." "Such a refusal cannot give rise to a claim for damages under either federal or [state] law unless the carrier's decision was arbitrary and capricious." Id. at 846. (quoting 49 U.S.C. § 44902(b) and Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975))(emphasis added). In evaluating the air carrier's decision, the court makes an objective assessment that includes all circumstances surrounding the decision, the limited facts known at the time, the potential time constraints under which the decision was made and the general security climate in which the events occurred. The court found that the captain's decision was not arbitrary or capricious. Id. at 847 (citing Dasrath v. Continental Airlines, 228 F. Supp.2d 531, 539 (D.N.J. 2002).

The result was similar in the first post-9/11 racial discrimination jury trial. In that case, Ahsan Baig, a Pakistani businessman, was ticketed on a United flight from San Francisco to Philadelphia eleven days after the attacks. The apprehensive flight crew and gate agents claimed that Baig had exchanged glances with others of Middle Eastern descent, that there was a discrepancy in the home address on his photo identification and that confusion about his ticket resulted in an animated discussion at the gate. Based on that series of "red flags," Mr. Baig was denied boarding and questioned but accommodated on the very next flight. Bazeley, Michael, United Wins Sept. 11 Bias Suit, Contra Costa Times, Nov. 29, 2002, 2002 WL 102272342.

In a bold move, United tried Mr. Baig's case in state court before a San Francisco jury in November 2002. The jury unanimously found that United had denied equal access to a public accommodation. Ten of the 12 jurors likewise found that Baig's race was a motivating factor in United's initial refusal to transport him. However, the jury found based on an objective analysis of the facts and circumstances at the time that United's conduct was not arbitrary or capricious resulting in a defense verdict. Id.

Air rage and the unruly passenger

Federal laws prohibit passenger conduct that interferes with the flight crew's duties or "lessons the ability of the member or attendant to perform those duties." 49 U.S.C.

Section 46504; 14 C.F.R. §§ 91.11, 121.580. In the post-9/11 flying environment, passengers, flight crews, the FAA and federal air marshals are extremely sensitive to the actions of those who become the least bit uncooperative while airborne.

Potential sanctions against an unruly passenger include FAA administrative action resulting in monetary penalties and federal criminal prosecutions. Passengers might be surprised by the low threshold by which their hostile words or actions can be interpreted as wrongful crew interference resulting in prosecution. Two post-9/11 unruly passenger cases demonstrate this threshold - one resulted in administrative action and the other resulted in a criminal conviction upheld by the Fourth Circuit Court of Appeals.

In FAA v. Sikora, FAA Docket No. CP02EA0013, (Kolko, J., January 30, 2003), passenger Piotr T. Sikora boarded a flight at New York's La Guardia Airport bound for Cincinnati on November 20, 2001. Sikora, who was assigned the dreaded center seat on an oversold Boeing 757, bounced from seat to seat during boarding, trying to secure a better seat, only to be repeatedly disappointed when the passenger actually assigned to that seat arrived. A flight attendant told Sikora three times to take his assigned seat. When he continued his quest for a better seat ignoring the flight attendant's instructions, the flight attendants decided Sikora's actions were interfering with passenger boarding and their duties. Once notified of such, the captain left the cockpit during preflight checks and confronted Sikora, directing him to sit in his assigned seat. Sikora responded with a litany of profanity. The captain then told Sikora to get his belongings and requested assistance from a passenger service agent to have him deplaned. While yanking his carry-on bag from the overhead bin, his bag hit the captain in the back. His tirade of profanity continued as he was escorted off the aircraft. Id. at 2-3.

In a subsequent action by the FAA against Sikora, the administrative law judge found he violated the federal regulations prohibiting flight crew interference on three separate occasions and fined him $3,300. The judge stated: "It is critical that passengers respect and obey flight attendants' instructions. Flight attendants have authority flowing from the primary, and vital, responsibility to help assure the flight's safety-. They respond to in-flight emergencies as well as guarantee that passengers and luggage are prepared properly for takeoff, flight and landing. Failure to respect the attendants' authority breaks down the integrity of a process primarily designed to ensure safe passage. It ultimately presents an unacceptable risk for flight safety. It is a serious matter." Id. at 6.

In a federal government prosecution, United States v. Gilady, No. 02-4463, 2003 WL 1826695 (4th Cir. Apr. 9, 2003), passenger Mordhai Gilady boarded a flight on November 11, 2001, in Orlando en route to New York's La Guardia. Also due to seat assignment dissatisfaction, Gilady became very agitated stating he would not sit in his assigned seat. Once in flight, he got within inches of the flight attendants, yelling at them and using "extreme profanity." The flight diverted to Dulles as a result of his conduct with an off- duty New Jersey police officer, appropriately named Lieutenant Decker, kindly volunteering to sit next to Gilady until the plane landed. Id. at *1-2.

At a criminal trial, the flight attendants testified that Gilady's behavior was intimidating and precluded them from completing their in-flight duties. Gilady was convicted of interfering with the crew and violating 40 U.S.C. § 46504. The judge sentenced him to two years supervised probation and ordered him to pay the airline $2,799.02 in restitution. On appeal, Gilady conceded that his conduct - albeit "inappropriate, obnoxious and rude" - surely did not arise to being "assaultive or intimidating" to sustain a criminal conviction. Id. at *2.

The Fourth Circuit upheld Gilady's conviction, finding that his profane language and obnoxious conduct were sufficient to amount to intimidating acts. The Court stated: "Given the heightened awareness after September 11 and the flight attendants' testimony that they were frightened by Gilady's conduct, this Court concludes that there is sufficient evidence in the record to support a finding that a reasonable person would have been placed in fear by Gilady's conduct-." Id. at *3. Travelers might indeed be weary, tired, frustrated and extremely unhappy with their seat assignments, but it is unlawful to direct those frustrations and profanity towards the crew on the aircraft if doing so intimidates them or interferes in the least bit with their duties.

Conclusion

The events of September 11 will have a profound impact on aviation law, and the outcome of the litigation could impact air travel for many years. While being ever cautious and observant of passengers who might pose a safety threat, air carriers must continue to strive to remain free from discrimination and be true public accommodations. Disruptive and unruly passenger cannot be tolerated and should be prosecuted to the fullest extent provided by law. Air transportation continues to be one of the safest modes of public transportation. In spite of these cases, the skies remain for the most part very friendly. The air carriers still love to fly, but the times sure have changed.

Mark C. Fava is a member of the South Carolina and Georgia Bars and in house counsel for a major airline. The opinions included in this article are entirely his and are in no way reflective of those of his employer.

Copyright (c) 2004 by the South Carolina Bar. All rights reserved. No part of this publication may be reproduced without written permission.