The Devil in our Midst
It only takes one unruly passenger to disrupt the travel plans of thousands of people. But dealing with unruly passengers is a tricky business from start to finish
Incidents involving unruly passengers are an ongoing concern for airlines. They are happening in all parts of the world and in all classes of travel. And the fallout from each incident cuts across many aviation sectors, including safety, security, legal, and flight operations.
A disruptive passenger is defined as “a passenger who fails to respect the rules of conduct at an airport or on board an aircraft or [fails] to follow the instructions of the airport staff or crew members and thereby disturbs the good order and discipline at an airport or on board the aircraft.” [ICAO Annex 17 to the Convention on International Civil Aviation (the Chicago Convention) Security Safeguarding International Civil Aviation Against Acts of Unlawful Interference (March 2011)].
The motivational factors behind these events are many and varied. A lack of understanding about why an electronic device needs to be switched off can be a trigger point, for example. Even so, many airlines that participated in an IATA survey on unruly passengers viewed alcohol as the major contributor to disruptive behavior. They observed that passengers, in numerous instances, may have been intoxicated at the time of boarding the aircraft or had access to their own alcohol supply on board.
Whatever the reason behind the problem, the resulting costs to airlines are significant. The cost of a diversion can quickly add up to hundreds of thousands of dollars. Large aircraft may have to dump fuel and then there are landing fees, accommodation costs, ground handling charges, passenger compensation, and the cost of new fuel for the onward journey. In many cases, too, the crew will time out, meaning they cannot continue with the flight due to regulatory restrictions on the amount of hours they can work. A new crew will have to be assigned to operate the onward journey, adding to time and cost.
In late 2011, for example, two intoxicated business executives physically and verbally abused crew and fellow passengers and forced a transpacific flight to divert. The airline estimated the cost of the disruption at around $200,000.
Dealing with an unruly passenger can be a tricky business. In December 2012, IATA issued Guidance on Unruly Passenger Prevention and Management. The guidance material contains a Passenger Notification Warning Card that can be handed to a disruptive passenger, similar to a yellow card in soccer. This card clearly outlines the powers of the pilot in command and warns of the consequences of continued misbehavior.
There are also specifications related to company policy, procedures, and training in the IATA Operational Safety Audit (IOSA) and through IATA’s Recommended Practice 1798a. Additionally, IATA is calling for civil aviation authorities to deter and prevent unruly behavior by promoting passenger awareness of the unacceptability and legal consequences of disruptive behavior in aviation facilities and on board aircraft.
“But really we need to shift the focus from managing these events to the prevention of these incidents in the first place,” says Guenther Matschnigg, IATA’s Senior Vice President, Safety and Flight Operations. “The crew is concerned with safety, security and the comfort of their passengers on board the aircraft and shouldn’t have to be placed in a position where crew members become a police force in the sky.”
A number of steps are needed to move toward a pre-emptive solution. Importantly, it cannot be assumed that this is purely an airline problem. All stakeholders need to be involved in stemming the problem at the source. A collective and unified approach by the aviation industry could result in significant improvements to the problem of unruly passengers.
Airports, for example, can play an important role in helping to avoid such events. Passengers often start drinking at an airport and this needs to be acknowledged by airports and their concessionaires.
But the major project has to be a revision of the Tokyo Convention. This 50-year-old document has served the industry well but it is in desperate need of modernization.
One of the shortcomings is that the Convention limits jurisdiction over disruptive behavior to the state where the aircraft involved is registered. At the time of the adoption of the Tokyo Convention just 3% of aircraft were leased. The figure is closer to 50% today. This boom in leasing clouds the legal picture. More often than not, the state where the aircraft is registered has no connection with the incident in question and therefore its police authorities and courts have no interest in pursuing criminal action against offenders.
“What we need to do is expand the scope of jurisdiction provision in Tokyo Convention to bring it up to date with modern operations,” says Michael Gill, IATA Senior Legal Counsel. “And we also need greater clarity about what constitutes an offense.”
IATA is calling for the state of operator and state of landing as applicable jurisdictions to be adopted in a new international treaty to amend the Tokyo Convention. Having the right legal framework in place will go some way to preventing further incidents. Passengers will begin to understand the serious consequences of any disruptive behavior and police authorities will have the necessary machinery to deal with passengers who are offloaded in an adequate manner.
IATA is also attempting to determine a definition of “in-flight” that more adequately reflects the period when the pilot is in actual command of the aircraft, namely when its external doors are closed following embarkation until they are opened for disembarkation. That would tie in with the scope of other international conventions in the liability and security areas.
To assist airlines and their crew, IATA has developed briefing notes for airlines that explain the various legal positions under the existing wording of the Tokyo Convention. These can be handed over to law enforcement authorities when the aircraft lands and the unruly passenger is disembarked.
Betting on the outcome
Providing greater clarity in the legal framework will go some way to defining the outcome of unruly passenger incidents. At the moment, it is a lottery. Depending on the legislative framework of the country where the plane lands, for example, it could be that a crew member has to personally press charges. Airlines want to ensure a safe workplace but such a scenario may require the crew member to remain in the country for a period as it is often a long process. He or she may not speak the language and this can be personally distressing.
Crew members will already have had to deal with the incident, sometimes getting physically injured and often getting threatened.
Even carriers can be put off by the Byzantine and lengthy legal cases that ensue from unruly passenger incidents. Often, the carriers don’t press charges. Some might invite the disruptive passenger to take a course at the airline on why their behavior was so dangerous. Other disruptive passengers just receive a letter warning them of future behavior, while in extreme cases the passenger might even be banned from using that particular airline.
It is worth pointing out that despite the serious nature of some of these incidents that potentially affect aircraft safety, there has never been a total industry-wide ban on an unruly passenger. There are no standards for airlines sharing information on such passengers and, often, the easiest thing to do is to let the passenger resume his or her onward journey.
Out of pocket
Getting any money back for the costs involved in dealing with the incident is unlikely. If the passenger in question leaves the jurisdiction under which any legal proceedings are occurring, it will often be difficult or impossible to recover these losses. The Tokyo Convention is silent on the right to recourse for airlines.
“IATA believes that to allow carriers the prospect of recovering the operational and post-incident costs arising from an unruly passenger incident, the Tokyo Convention should expressly recognize a right of recourse against the passenger concerned,” says Gill.
“Unruly passenger incidents can be very disruptive both at the time of occurrence and for many months afterwards,” he concludes. “They can affect the travel plans of other passengers and cost airlines hundreds of thousands of dollars. It is time to put in place the right legal structure that deals with these incidents and so dissuades similar unruly behavior in the future.”