Judges revive suit by passengers booted from Alaska flight

July 30, 2010

http://blog.seattlepi.com/aerospace/archives/216339.asp

A federal judge improperly dismissed a lawsuit by Egyptian and Brazilian passengers booted off an Alaska Airlines flight in 2003, an appeals panel ruled Friday.

The ruling is significant as it is, according to the majority ruling, the first U.S. case and the second anywhere to interpret the 1963 Convention on Offenses and Certain Other Acts Committed on Board Aircraft. That treaty authorizes pilots to forcibly restrain and boot off passengers and deliver them to law enforcement, and grants airlines immunity from liability if pilots have reasonable grounds to support their actions.

“We are mindful of the claims … that flight commanders must be given wide latitude in making decisions to preserve safety and orderly conduct aboard an aircraft in flight,” Ninth U.S. Circuit Court of Appeals Chief Judge Alex Kozinski wrote in the ruling. “But passengers also have a legitimate interest in being treated fairly and with dignity; they are, after all, captives of the airline for the duration of the flight, and may be stranded far from home if not allowed to continue on the flight they have paid for.”

Reacting to the ruling Friday, Gilbert Gaynor, a lawyer for the passengers, said: “It really is a reminder to the airline industry that passengers are human beings and that, while security is very important and the law recognizes that security is very important, you still have to treat people reasonably, and that includes people from other cultures.”

Alaska Airlines, which is based in Seattle, did not immediately respond to a request for comment.

The lawsuit stems from a Sept. 29, 2003, flight from Vancouver, B.C., to Las Vegas. A group of nine — Egyptian businessmen headed to a convention to meet with a manufacturer of natural-gas equipment, plus their wives and a Brazilian fiancee — took up all but three first-class seats.

Here’s the account from the group and a separate American passenger providing the only independent version:

Flight attendants told Egyptian passengers who stood to stretch that they couldn’t stand outside the flight deck

One flight attendant told passenger Reda Ginena, who complained of back and circulation problems, that he could stand in the rear of the first-class cabin. But then another flight attendant, Robin Duus, rudely told him to sit down, continued to hector him after he did so and then ordered him to fill out an inflight disturbance report, which was designed to be filled out by flight crew, not passengers.

When the Ginena pointed out that he wasn’t supposed to fill out the form, Duus started pacing and yelling. When Ginana’s wife complained of this treatment, Duus thrust an inflight disturbance report at her and then called to the flight deck to have the pilots land the aircraft.

The American passenger said Duus “had been glaring at (the Egyptian) group every time she passed through the first class cabin. She wasn’t looking at me like that.”

The pilots diverted to Reno, where police and Transportation Security Administration officials removed the group but, despite the entreaties of Captain Michel Swanigan, declined to arrest them and, in fact, cleared them to continue flying.

Swanigan refused to reboard the group, but the passengers were able to fly to Las Vegas on American West, even though Alaska urged America West not to allow them to aboard.

After the Alaska flight took off again, a flight attendant announced to the remaining passengers that plaintiffs had interfered with the flight crew and were responsible for the diversion. Following the incident, Alaska issued a statement saying “many of us feel that we were let down because these people were not arrested and also puzzled and dismayed” that the group was able to fly on America West.

Alaska also reported the group to the Joint Terrorism Task Force, leading FBI agents to publicly detain the businessmen on the afternoon of their rescheduled meeting with the natural-gas equipment maker.

The passengers’ version of events is important because a judge must consider the evidence in the light most favorable to the plaintiffs in deciding whether to dismiss a lawsuit in summary judgment.

U.S. District Judge Robert Clive Jones of Nevada granted Alaska Airlines summary judgment in dismissing the passengers’ claims for damages due to delay under the 1929 Convention for the Unification of Certain Rules Relating to International Carriage by Air. Jones ruled that the 1963 convention gave the airline immunity to the claims.

But Kozinski, writing for himself and Circuit Judge N. Randy Smith, said that the evidence, viewed in light most favorable to the plaintiffs, could lead a jury to conclude the captain did not have reasonable grounds to believe that plaintiffs posed a threat to the security or order of the aircraft.

Furthermore, international convention only allows pilots on international flights to deliver passengers to police, as Swanigan did, if he has reasonable ground to believe they have committed a crime, the judges noted. “Viewing plaintiffs’ version of the facts, they did absolutely nothing that anyone could reasonably believe was criminal.”

Concluding, the judges wrote:

A jury may reasonably conclude that there was no emergency here. None of the passengers had made any threats, brandished a weapon or touched a flight attendant. Nor had any of the flight crew informed the captain that any of the passengers had done anything to endanger the plane. Even assuming the truth of everything that Captain Swanigan and his crew now say happened, a jury could conclude that the captain acted unreasonably in diverting the plane to Reno, forcing plaintiffs to disembark, turning them over to the authorities and then refusing to let them re-board the flight after the police had cleared them. …
The record contains substantial evidence that would support a jury’s finding that Captain Swanigan and his crew acted unreasonably toward the plaintiffs.

In a partial dissent, District Judge S. James Otero argued the standard should be whether the captain’s actions were arbitrary and capricious, not unreasonable.

Swanigan’s decision to divert the jet to Reno was not arbitrary or capricious, and was properly dismissed by Jones, Otero wrote. He said the captain’s decision to have the group removed from the jet in Reno should go to trial, but using the arbitrary and capricious standard.

All three judges agreed that Jones properly ruled that defamation claims regarding statements Swanigan and other crew members gave to police and the TSA in Reno were not allowed under international treaty because they were part of the disembarkation process. But the appeals judges also agreed in reversing Jones’ dismissal of defamation claims regarding comments a flight attendant made after the passengers were gone.

Finally, the three judges upheld Jones’ dismissal of seven new defamation claims based on statements Alaska’s employees made to America West Airlines, to the Joint Terrorism Task Force and in internal newsletters.

The judges agreed that the plaintiffs brought their motion to file the supplemental complaint under the wrong rule. They said it’s up to the trial judge whether to allow the passengers to refile the motion correctly.

The case drew briefs from Egypt and the U.S. Department of Justice, American-Arab Anti-Discrimination Committee, Air Line Pilots Association, International Air Transport Association and Air Transport Association of America.

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Judges revive suit by passengers booted from Alaska flight

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