Breach of Contract Leads to Corporate Thuggery

This is a case of breach of contract which resulted in one of the most shocking acts of corporate thuggery in modern times. When unable to renegotiate the contract, the corporate party resorted to violence.

Many of the apologists for United Airlines claim that the actions of the airline's staff were justified by its contract of carriage. They were not.

They claim that the airline's actions were justified by Federal statute. They were not.

They claim that the passenger in question, Dr Dao, was unjustified in his refusal to leave the aircraft. He was not.

They claim that passengers always have to obey the instructions of airline crew to leave the aircraft. They do not.

They claim that a passenger can be denied boarding at any time before the aircraft doors are shut. They cannot.

Some claim that the enforcement personnel were justified in using reasonable force to remove Dr Dao. They were not.

This blog will argue that:

• Dr Dao was justified in his refusal to leave the aircraft and
• No amount of force could be construed as 'reasonable' in removing Dr Dao.

The facts: The facts of the case are straightforward and not in dispute. On 9th April, 2017, David Dao, a 69 year old doctor, boarded a flight at O'Hare Airport, Chicago, operated by Republic Airlines on behalf of United Airlines. There is no contest that United Airlines was responsible for the conduct of the Republic staff and the two entities may be treated as one for the purpose of civil liability. I will refer to them as 'the Airline'. The flight was bound for Louisville, Kentucky.

Dr Dao had purchased a ticket. He arrived at the airport in good time. He was presented with a boarding pass. He boarded the plane along with the other passengers. Dr Dao took his seat at the invitation of the Airline.

Shortly after boarding, a member of ground staff boarded the plane and requested that four passengers volunteer to surrender their seats to make way for four staff of the Airline who were required to be present in Louisville the next day.

Vouchers were offered to entice seated passengers to relinquish their seats. None of the passengers accepted this offer. The offer was raised, but still, no passengers accepted the offer.

In frustration, the Airline announced that it would implement 'involuntary denial of boarding'. The Airline selected four passengers, at random, to leave the aircraft. Three of the passengers in question complied begrudgingly. The fourth, Doctor Dao, refused to vacate his seat. 

The Airline thereupon called the airport security personnel, employed by the City of Chicago, to do their bidding. Three security personnel, two wearing uniforms bearing the rubric, 'Police', boarded the plane. They attempted to elicit the cooperation of Dr Dao. He steadfastly refused. Video footage taken by fellow passengers shows that Dr Dao was firm but never obstreperous. "I'm not going," he maintained.

After it was clear that Dr Dao was not going voluntarily, one of the security personnel removed Dr Dao forcibly. Dr Dao was violently hauled from his seat and dragged out of the plane. Minutes later he re-entered the plane, running to the back where he stood, clinging to a curtain, panting, blood streaming down his mouth, and muttering deliriously. According to his lawyer, Dr Dao  was hospitalized. He suffered a broken nose, lost two front teeth and suffered concussion. 

The question: Was Dr Dao justified in law in refusing to vacate his seat? This is the central and most important issue in the case. If Dr Dao was justified in refusing the Airline's instruction to deplane, no amount of force was justified in his effecting his removal. If Dr Dao was not justified in refusing the crew's instruction to deplane it might have been lawful to remove him by force, in which case, the appropriateness of the degree of force used would be in issue.

If the first question is answered in the affirmative, namely, that Dr Dao was justified in refusing to vacate his seat, then the second question is not relevant.

The law: The starting point for this discussion is the law of contract. (For a general discussion of sources of law of passengers' rights, follow this link.) At the time when Dr Dao was seated on the aircraft, he was party to a contract of carriage with the Airline. The contract of carriage (the Contract) gave him the right to be on the plane. It gave him the right to be carried to his destination in Louisville. If Dr Dao was to be removed lawfully from the aircraft, such removal must have been in accordance with the Contract. Alternatively, there would have to be some statutory provision which justified overriding the Contract. In the absence of any relevant, conflicting, statutory provision, the rights and duties of the Airline and Dr Dao were to be found in the Contract.

The Contract 

There are two relevant provisions in the Contract: Rule 25, which gives the Airline the right to deny boarding and Rule 21, which gives the airline the right to remove a passenger from the aircraft. In the present case, the Airline conflated these two rights. As we shall see, Rules 21 and 25 are separate and cannot be used in conjunction.

The Airline sought to rely on the Rule in the Contract which provided for 'Involuntary denial of boarding'. The process begins with a request to all passengers to relinquish their 'confirmed reserved space'.


RULE 25 DENIED BOARDING COMPENSATION

Denied Boarding (U.S.A./Canadian Flight Origin) - When there is an Oversold UA flight that originates in the U.S.A. or Canada, the following provisions apply:
1.Request for Volunteers
a. UA will request Passengers who are willing to relinquish their confirmed reserved space in exchange for compensation in an amount determined by UA (including but not limited to check or an electronic travel certificate). ...

In the event that this request to relinquish 'confirmed reserved space' does not produce the desired number of vacancies, Rule 25 2. applies: (emphasis added)

2. Boarding Priorities - If a flight is Oversold, no one may be denied boarding against his/her will until UA or other carrier personnel first ask for volunteers who will give up their reservations willingly in exchange for compensation as determined by UA. If there are not enough volunteers, other Passengers may be denied boarding involuntarily in accordance with UA’s boarding priority....

In this case, a member of ground staff came on board the aircraft and proceeded to implement the procedure in Rule 25. There were 'not enough volunteers'. Dr Dao was selected according to the process in Rule 25.2. There are two problems with the reliance on this Rule in the present case. First, there was no 'Oversold UA flight'. Secondly, Dr Dao had already boarded the aircraft.

No oversold flight. No denial of boarding: Rule 25 provides a procedure for involuntarily denying boarding in the event that the flight is 'oversold'. According to Rule 1 of the Contract,

"Oversold Flight means a flight where there are more Passengers holding valid confirmed Tickets that check-in for the flight within the prescribed check-in time than there are available seats."

"Passenger means any person, except members of the crew, carried or holding a confirmed reservation to be carried in an aircraft with the consent of the carrier."
In the present case there were no more "Passengers holding valid confirmed Tickets". The flight was not overbooked. It was full. If it was overbooked, the overbooking situation would have been handled before boarding and the incident that gave rise to the case would not have happened. 

Instead there were four crew members who, at the last minute, were rushed onto the plane. Rule 1 specifically excludes 'crew members from the definition of "Passenger". It was clear then that this was not an oversold situation. Rule 25 was misapplied.

Denial of boarding cannot occur after boarding: The term 'boarding' is not defined in Rule 1 of the Contract. By the usual rules of interpreting a contract the plain, literal meaning of the term will apply. Boarding is generally understood as the process of getting onto a vehicle. In this case, boarding had already taken place. All of the passengers had boarded the plane and had taken their seats. 

Denial of boarding cannot take place after the fact. Rule 1 clearly envisages that an 'oversold' situation occurs when (and, it may be inferred, only when) Passengers "check-in for the flight within the prescribed check-in time" and there are more such passengers than available seats. The only time to ascertain whether the number of passengers exceeds the number of available seats is at check in. Indeed, that is the usual point at which an oversold situation is addressed: at the time of check-in. In the event that the flight is oversold, you are offered the opportunity to take a different flight. If you are to be denied boarding, involuntarily, check-in would be the only reasonable time to impose such a condition. You cannot be denied something that you have already been granted. That would not be denial. That would be revocation of boarding, which is not provided for in the contract. Indeed, one could imply a term, based on 'custom and usage', that denial of boarding can only take place at the time of check-in, after which the Airline may only resort to revocation of boarding, by way of Rule 21, discussed below.

The language in Rule 25 1.a supports the interpretation that denial of boarding can only occur at the time of check-in. The Rule refers to, "Passengers who are willing to relinquish their confirmed reserved space". It does not refer to or envisage relinquishing their allocated seat. 

A passenger cannot, therefore, be denied boarding once he has been given permission to board. He can only be refused transportation in accordance with Rule 21 which envisages denial of boarding at the time of check-in. The issuance of a boarding pass is the granting of permission to board. Once permission has been granted it cannot be denied. It can only be revoked. Revocation of boarding cannot be implied from Rule 21. It could only apply if there were a specific provision in the contract, such as,

"The Airline may revoke the right of any passenger to board at any time before the aircraft doors have closed, notwithstanding the fact that actual boarding has occurred or permission to board has been granted."

The problem with such a clause would be that it would probably vitiate the entire contract of carriage by giving the carrier such a wide discretion to perform or not perform as to remove any obligation whatsoever. A contract is an exchange of mutual promises. If one party can weasel out of the contract without doing anything, there is no contract. As Barwick CJ put it,  "The exemption occupies the entire area of possible obligation". In other words, if the exemption from performance is so wide that there is no binding promise, there is no contract.

Process of boarding not relevant to individual boarding:  Some blog comments have claimed that 'boarding' is a process that is not complete until the aircraft doors are closed. Therefore, boarding can be denied at any time up until that process is complete. This argument is flawed. The contract provides for denial of boarding in respect of individual passengers. 'Boarding' must be seen, therefore, in the context of individual passengers, not the whole process. If an individual passenger has already entered the aircraft he has already boarded. He cannot be denied boarding once he has boarded. He can only be 'removed'.

The only lawful point at which boarding could be denied would be at the time of check-in, for the following reasons: 

• The definition of 'oversold' flight in Rule 1 envisages check-in as the relevant time to determine whether a flight is 'oversold' and only oversold flights give the airline to right to deny boarding.
• Once a boarding pass has been issued, permission to board has been granted. Once a right has been granted it cannot be revoked without an express clause in the contract. There was no such clause in the UA Contract. 
• Thirdly, the usual practice is to deny boarding at check-in. One could argue that in the absence of express conditions to the contrary, custom and usage would imply a term that denial of boarding may only occur at the time of check-in.

No grounds to 'refuse transport': In the absence of the right to deny boarding, the only lawful way that the Airline could remove a passenger would be pursuant to Rule 21.

RULE 21 REFUSAL OF TRANSPORT

UA shall have the right to refuse to transport or shall have the right to remove from the aircraft at any point, any Passenger for the following reasons:

A. Breach of Contract of Carriage – Failure by Passenger to comply with the Rules of the Contract of Carriage.

In order for Dr Dao to have been in breach of contract, he would have had to have fallen within Rule 25. If Rule 25 applied and Dr Dao refused to comply, he would have been in breach of contract. As we have seen, Rule 25 did not apply. Dr Dao was not, therefore, in breach of contract. On the contrary, the Airline was in breach of contract by wrongfully invoking Rule 25 and Dr Dao was within his contractual rights to remain in his seat. 

B. Government Request, Regulations or Security Directives – Whenever such action is necessary to comply with any government regulation, Customs and Border Protection, government or airport security directive of any sort, or any governmental request for emergency transportation in connection with the national defense.

The instruction to deplane, in order to accommodate the Airline's crew members, could not be construed as a matter of security. There was no 'airport security directive'. National defense was not relevant. 

C. Force Majeure and Other Unforeseeable Conditions – Whenever such action is necessary or advisable by reason of weather or other conditions beyond UA’s control including, but not limited to, acts of God, force majeure, strikes, civil commotions, embargoes, wars, hostilities, terrorist activities, or disturbances, whether actual, threatened, or reported.

It would be a long stretch to argue that deplaning Dr Dao was advisable by reason of weather that caused the four crew members to turn up unexpectedly and beyond UA's control. 

D. Search of Passenger or Property – Whenever a Passenger refuses to submit to electronic surveillance or to permit search of his/her person or property.

E. Proof of Identity – Whenever a Passenger refuses on request to produce identification satisfactory to UA or who presents a Ticket to board and whose identification does not match the name on the Ticket. UA shall have the right, but shall not be obligated, to require identification of persons purchasing tickets and/or presenting a ticket(s) for the purpose of boarding the aircraft.

F. Failure to Pay – Whenever a Passenger has not paid the appropriate fare for a Ticket, Baggage, or applicable service charges for services required for travel, has not paid an outstanding debt or Court judgment, or has not produced satisfactory proof to UA that the Passenger is an authorized non-revenue Passenger or has engaged in a prohibited practice as specified in Rule 6.

G. Across International Boundaries – Whenever a Passenger is traveling across any international boundary if:The government required travel documents of such Passenger appear not to be in order according to UA's reasonable belief; orSuch Passenger’s embarkation from, transit through, or entry into any country from, through, or to which such Passenger desires transportation would be unlawful or denied for any reason.

 None of the above rules is relevant.

H. Safety – Whenever refusal or removal of a Passenger may be necessary for the safety of such Passenger or other Passengers or members of the crew including, but not limited to:1. Passengers whose conduct is disorderly, offensive, abusive, or violent;2. Passengers who fail to comply with or interfere with the duties of the members of the flight crew, federal regulations, or security directives;3. Passengers who assault any employee of UA, including the gate agents and flight crew, or any UA Passenger;4. Passengers who, through and as a result of their conduct, cause a disturbance such that the captain or member of the cockpit crew must leave the cockpit in order to attend to the disturbance;

(sub-rules 5 to 19 deal with a variety of situations that are not relevant here, including improper attire, being manacled, being deaf and dumb, pregnant, etc.) 

Dr Dao was not removed because he posed a threat to safety. He was not disorderly, offensive, abusive or violent, even when provoked. He was removed because he failed to comply with an unlawful request to deplane. 21 H. did not apply to the facts of this case.

No legislative basis for removal: In the absence of justification under Rule 25 or Rule 21, the Airline was not contractually entitled to order the removal of Dr Dao from the aircraft. Dr Dao was entitled to insist on his contractual right to be transported. Any lawful removal would have had to have been on the basis of legislation in order to be lawful. The most likely place to find relevant legislation would be 14 CFR, the Code of Federal Regulations dealing with Aviation. I searched:

§ 91.11 Prohibition on interference with crew members and its counterpart in 49 U.S. Code § 46318 - Interference with cabin or flight crew.

These provisions are not relevant here as Dr Dao did not 'interfere' with the crew. He sat in his seat and awaited take-off, as did all of the other passengers.

§ 91.3 Responsibility and authority of the pilot in command.(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.

Also, not relevant as the issue of who sat on the aircraft was not an operational issue. Operation of the aircraft refers to using or piloting the aircraft and not deciding who sits on it qua passenger. 

Federal Aviation Regulations provide:

Sec. 121.533 — Responsibility for operational control: Domestic operations.
(a) Each certificate holder conducting domestic operations is responsible for operational control.(b) The pilot in command and the aircraft dispatcher are jointly responsible for the preflight planning, delay, and dispatch release of a flight in compliance with this chapter and operations specifications.
(c) The aircraft dispatcher is responsible for—
(1) Monitoring the progress of each flight;
(2) Issuing necessary information for the safety of the flight; and
(3) Cancelling or redispatching a flight if, in his opinion or the opinion of the pilot in command, the flight cannot operate or continue to operate safely as planned or released.
(d) Each pilot in command of an aircraft is, during flight time, in command of the aircraft and crew and is responsible for the safety of the passengers, crewmembers, cargo, and airplane.
(e) Each pilot in command has full control and authority in the operation of the aircraft, without limitation, over other crewmembers and their duties during flight time, whether or not he holds valid certificates authorizing him to perform the duties of those crewmembers.

Contract alone governs facts of this case: The pilot has full authority, without limitation over the crew, but not over the passengers. On the contrary, he has a duty, during flight time, to ensure the safety of the passengers. There is no federal legislation that contradicts the provisions of the Contract. In the absence of any federal legislation to the contrary, the contract is the only source of law governing the facts of the present case.  

No amount of force justifiable. Threat of force would be assault: The airline attempted, unlawfully, to use Rule 25 of the Contract to remove Dr Dao from the aircraft. It then attempted to justify its actions by way of  Rule 21. Rule 21 did not apply to the facts of the case. Nor did Rule 25. The Airline was therefore in breach of contract by removing Dr Dao. 
No federal legislation justified the Airline's breach of the Contract. It follows, then, that the Airline's determination to remove Dr Dao was unlawful. Accordingly, no amount of force would have been lawful in removing Dr Dao from his seat on the aircraft. 

Without justification, the use of force to remove Dr Dao was battery. Indeed, even the threat of using force to remove him would have been an assault.