TGIF: May 5, 2017 – The “Delta” Between Service and (Wind) Schear

Despite what you may have heard, lawyers are, in fact, human beings with interests and hobbies all their own. They are not, I repeat not, robots sent from the future solely for the purpose of billing hours, drafting documents, and negotiating terms.  Not all of them anyway.  

In TGIF, I touch on some of my own interests primarily through the lens of the “Rules of the Game”, focusing on the rules and incentives that affect many aspects of our daily lives. I may even crack a joke or two. Hard to say.

TGIF will be published regularly on (surprisingly enough) Friday mornings. For more information, check out www.hoeglaw.com or drop Rick a line at rhoeg@hoeglaw.com.

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In the spirit of my last TGIF post, “On Being United“, comes the stirring sequel.

Flight 2222

Editor’s Note: Like most cases tried in the media and not in a court of law, there is a fair amount of dispute regarding the facts on the ground here.  In looking at the issues, I will attempt to keep an even view of the factual possibilities, but keep in mind that stories regularly change as each side gets its say.  The bulk of the facts presented here come from the investigative story posted at heavy.com here.

On April 23, 2017, Brian Schear, his wife, and his 2-year-old son, Grayson, boarded Flight 2222 from Maui to Los Angeles.  The family sat in three separate seats for which they had purchased tickets.

Sometime after boarding, the family was approached by Delta personnel requesting to have young Grayson removed from his seat.  The Delta attendants informed Mr. Schear that they were empowered to make this request because the seat in question was reserved under the name Mason Schear, the family’s 18-year-old son.

Mr. Schear explained to the Delta crew that he had paid for Mason to return to Los Angeles on an earlier flight expressly for the purpose of using the family’s third seat on young Grayson.

He taped the resulting confrontation.

In the video above, the airline’s personnel (i) threaten to have Brian and his wife detained for failure to abide by a directive of the airline staff, (ii) claim that FAA rules prohibit a 2-year-old from sitting in its own seat, (iii) inform the Schears that the airplane will not be permitted to move until they give up Mason/Grayson’s seat, and (iv) finally kick the Schears off the flight and tell them that they are “on their own”.

Wow, there’s a lot to unpack here.  Let’s dive in.

A “Schear” by any other Name

So the very first question is who is in the right in respect of this name issue.

Mr. Schear admits in the video that the ticket is in his other son’s name, and we can presume from the exchange that none of the Schears attempted to have the name on the ticket changed to Grayson’s.  (In fact, it is difficult to imagine how the Schears would have been selected for this request from Delta if the name had, in fact, been changed.) So, when the family was at the gate, we can presume that the gate attendant checked-in only Mr. and Mrs. Schear and that the third seat was marked as unused (likely because one of the Schear tickets already indicated an “infant in arms”.)

What does all that mean for our analysis?  A couple of things.

First, let’s head over to our old favorite: the contract of carriage – Now with 100% more “Delta” flavoring!  A few rules jump out:

Rule 100

The purchaser of a Delta ticket and the passenger intending to use such ticket are responsible for ensuring that the ticket accurately states the passenger’s name. Presentation of a ticket for Delta Domestic General Rules Tariff transportation on Delta by someone other than the passenger named thereon renders the ticket void. Such ticket will be subject to confiscation and will be ineligible for any refund.

So, by the letter of the law, 2-year-old Grayson “presenting” Mason’s ticket would render the ticket void.  It seems likely that the Schears avoided this by simply not presenting the Grayson/Mason ticket for the third seat.

Further:

Tickets are not transferable, but the carrier is not liable to the owner of a ticket for honoring or refunding such ticket when presented by another person.

So, again by the letter of the law, Delta may not have to honor Mason’s “transfer” of his ticket to Grayson (but it could choose to do so if it wished).

Note some of the disconnect here between Mr. Schear and Delta.  Delta views the ticket as “owned” by Mason, simply paid for by a third-party.  They use that exact phrasing in the video above to indicate why they are permitted to do what they are doing.  By contrast, Mr. Schear feels that all three tickets are owned by him, as he paid for them, and that the provided names simply establish his desired passenger list.  To Mr. Schear, there is no transfer here, simply a change in name.

When a ticket is said to be non-transferable, does that mean as between passengers or as between purchasers? There is validity in both interpretations.  In Rule 100 alone, reference is made to the “purchaser”, the “passenger”, and most ambiguously, to the “owner”.  This is unquestionably bad legal drafting.

Rule 135

Delta may cancel your reservation if the reservation does not include the required Secure Flight Passenger Data (full name, date of birth and gender) at least 72 hours prior to your scheduled departure.

This rule is correlated to the Transportation Security Agency’s anti-terrorist requirements which, admittedly, makes sense.  In the present case, there is no question that neither Delta nor the TSA possessed Grayson’s accurate name or date of birth (though he was likely a minimal terrorist risk).  Still, it does not appear that Delta took steps to cancel any reservation, simply that it mandated that the seat be given up after boarding.

Name Correction Policy

The article describing the events of Flight 2222 cited above takes some pains to reference the Delta name correction policy.  Now, “correction” is a funny word in legal parlance. Certainly on its own, the term “correction” implies the fixing of simple mistakes, not the making of wholesale changes;  say, to request that a ticket be corrected if it had spelled the older Schear son’s name as “Maison” for instance.

But it can also be used to correct simple human error.  If the Schears had been planning a complicated trip from the outset and had always intended to have Mason fly out but Grayson fly back, and simply got it wrong when buying their tickets, the policy could be argued to allow them to ask for a change to “correct” their slip of the mind.  In fact, we do that quite a bit in my area of the law.  There’s even an entire certificate to be filed with the state to account for it.

So what does Delta’s name correction policy actually state (in pertinent part)?

Travel agents may make a correction to the first or middle name and reissue the ticket without a waiver code providing the following conditions are met:

  •  All flights on the ticket must be Delta–operated.
  •  Only one reissue for a name correction is allowed per passenger ticket.

Note a few things here.

First, there is a prominent “may” in the operative sentence, not a “shall”.  The policy is discretionary, and Delta does not have to make any changes under it if they don’t want to.

Second, there is nothing in the rule itself that would have prevented the name on the ticket in question from being changed if the Schears requested it (and if Delta acceded to the request).

Finally, as noted above, there is substantial evidence that the Schears never asked for such a “correction” in any event.

On this last point, the evidence is circumstantial, but convincing.  Had the Schears asked to change the name on Mason’s ticket, such ticket would have reflected Grayson’s name, Grayson would have been checked in, and Delta would never have known that there was a seat free for claiming in which to place its overbooked ticket holders.  Since they did know there was a seat available, we can surmise that the Schears never asked for such a change (or were denied the change in question, though we would expect that if that were the case, mention of it would have appeared in the above video).

Why would they not ask for such a change if it was available to them?

I can’t speak for the Schears, but I can imagine the logic is as simple as “It is easier to ask for forgiveness than permission”.  In general, when I am advising my clients, there is often an undercurrent in any such advice that one doesn’t want to stand out from the crowd if one can avoid it.  I would imagine that given the facts we can guess at here, Mr. (or Mrs.) Schear thought there would be no problem simply using the third seat they had purchased, and so no reason to highlight for Delta that they were anticipating doing something a little bit “off” from the rules.

Admittedly, this seems like an odd choice for them to make, as Mr. Schear should have been familiar with airline overbooking policies either from his previous flight experience (he claims in the video to regularly travel by plane) or just by regularly watching the recent news.  Perhaps I am being uncharitable, however, and the Schears did not seek relief under such a policy because they knew there was no “mistake” to correct, and they did not wish to make a claim dishonestly.

Either way, they were pincered by an airline that saw a ticket that had not been checked in and an overbooked passenger to seat.  Had they asked to change the name under Delta’s name change policy (however valid or disingenuous such a request might have been) it is easy to see how this exact scenario could have been prevented.

Arrest, Detainment, and Ejection

In the course of arguing with Mr. Schear, one of the Delta flight attendants invokes the threat of arrest and confinement based on the family’s refusal to follow the directives of the flight crew.  As will be familiar to anyone who does any regular flying, the attendant references FAA authority to make this claim.  After the confrontation, the family is approached by another attendant who states that they must leave the plane and that it will not take off with them aboard regardless of whether or not they now choose to comply.

Let’s take a look at how legitimate these threats and actions were.

First, per Delta’s own Contract of Carriage.

Rule 35

…Delta may refuse to transport any passenger, or may remove any passenger from its aircraft, when refusal to transport or removal of the passenger is reasonably necessary in Delta’s sole discretion for the passenger’s comfort or safety, for the comfort or safety of other passengers or Delta employees, or for the prevention of damage to the property of Delta or its passengers or employees. By way of example, and without limitation, Delta may refuse to transport or may remove passengers from its aircraft in any of the following situations:

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4) When the passenger attempts to interfere with any member of the flight crew in the pursuit of his or her duties, or fails to obey the instruction of any member of the flight crew…

A few things to note here.

First, in comparison to the United contract reviewed last month, this provision is quite a bit clearer that the airline can remove passengers from its planes for the reasons specified.  Good for Delta, but maybe not so good for its customers.

Second, it’s important to note that the list of examples given under this Rule are intended to illustrate the stated right, not to expand upon it.  In other words, the only right Delta actually claims here is that it can kick folks of its planes if it is necessary (i) for the passenger’s comfort or safety, (ii) for the comfort or safety of other passengers or Delta employees, or (iii) for the prevention of damage to the property of Delta or its passengers or employees.

Obeying the instructions of its crews is supposed to illustrate a time when these conditions might exist, but it is not at all clear, particularly in this instance, that they do exist simply based on Mr. Schear’s refusal.

As you can see in the above video, Mr. Schear is annoyed, but he is not belligerent or destructive.  This is not a United/Dr. Dao situation.  Other than the animosity related to the request itself, there appears to be no discomfort or risk to other passengers or crew, and at no point does Mr. Schear become destructive.  In order for Delta to win on an interpretation of this section, then, it must be the case that the simple act of defying any order given by Delta crew is seen as causing “discomfort” for Delta employees sufficient to permit removal.

Finally, it’s worth noting that the actual restriction on passenger activity as written in this rule applies to any order of the flight crew, not simply “reasonable” or “lawful” orders.  This is unusual in the context of most laws of a similar stripe. Taken to its extreme, that implies that Delta reserves the right to ask Mr. Schear to, among any other thing you can think of, kiss the stranger seated next to him or be kicked off the plane.

That can’t possibly be the intent of the language, nor permissible under the law, but that is what is written here.

The FAA, the Law, and You

In reading through Delta’s contract (and in hearing the claims of their flight attendants), it seems unlikely that the law is as broad as they are claiming (or conveying to Mr. Schear). A quick look at the applicable FAA literature and laws would seem to bear that feeling out.

First, let’s reference the “FAA Cabin Safety Subject Index“, a 125 page tome published by the FAA to serve as a reference to the thousands of pages of statutes and regulations that govern each and every flight in the United States.

In pertinent part, let us turn to Page 53 (Page 64 in the pdf) which provides helpful cross references to all pertinent regulations governing “Interference with Crewmember[s]”.

You’ll see a lot of overlapping language here.  Government is not so concerned with efficient drafting, but I want to make sure we establish the full playing field.

14 CFR (Code of Federal Regulations) 91.11

No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.

14 CFR 121.580

No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated under this part.

14 CFR 125.328

No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated under this part.

14 CFR 135.120

No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated under this part.

Ok, so all of the regulations are roughly the same (though applicable to different kinds of aircraft or circumstances).  An individual cannot assault, threaten, intimidate, or interfere with the duties of a crewmember.  Since there was clearly no assault, threat, or intimidation by Mr. Schear the only question is whether or not he “interfered” with a crewmember’s “duties”.

But before we get to that question, it’s important to note the simple sleight of hand in these regulations, not present in the actual law that ostensibly governs the situation.

49 USC (United States Code) 46504

An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life.

Do you see it?  Assault, intimidation, and interference are all there, but they are not included in the same way as in the regulation.  Where the regulations state that a passenger may not do any of the four activities (assault, threaten, intimidate, or interfere), in the law itself the only crime is interference.  And in particular, it is only interference achieved “by assaulting or intimidating a flight crew member.”  Simple interference without assault (or intimidation) would not appear to rise to the level of a crime under the statute.

(Note, a pedant could argue that the assault/intimidation component does not apply to the “lessen” standard, but that seems a tortuous way to read the statute.  Interference is clearly a greater risk than “lessening” so there is no reason to apply a greater burden of proof to the first case.  I believe assault and intimidation is best read to apply to all acts under the statute.)

So there is certainly some question regarding whether Mr. Schear and his wife could be arrested for simply not listening to a crew member’s orders without assault or intimidation, but let’s put that aside.  Under the regulations, did Mr. Schear’s refusal “interfere” with a crew member’s “duties”?

Interference is a relatively easy threshold to meet.  If the Delta employees were engaged in “duties” while making their request to the Schears, then the family’s refusal to comply with such request is quite clearly “interference”.  The question then is if by asking the Schears to place Grayson on their laps, the Delta attendants were pursing their “duties”.

To that question, I would answer a cautious “yes, they were”.

Title 14 of the Federal Code of Regulations (governing the operation of aircraft) does not separately define the term “duties” as it relates to flight attendants or crew members. The term is instead used as a catch-all for all responsibilities such a person might have, and appears 90 separate times in the relevant rules.

Not all such times relate solely to what we might think of as governmental duties.  A few examples:

14 CFR 121.135(b)(2) (Emphasis Added)

The manual may be in two or more separate parts, containing together all of the following information, but each part must contain that part of the information that is appropriate for each group of personnel…(2) Duties and responsibilities of each crewmember, appropriate members of the ground organization, and management personnel.

14 CFR 121.391(d) (Emphasis Added)

During taxi, flight attendants required by this section must remain at their duty stations with safety belts and shoulder harnesses fastened except to perform duties related to the safety of the airplane and its occupants.

14 CFR 121.394(d) (Emphasis Added)

The time spent by any crewmember conducting passenger boarding or deplaning duties is considered duty time.

14 CFR 121.542 (Emphasis Added)

Duties such as company required calls made for such nonsafety related purposes as ordering galley supplies and confirming passenger connections, announcements made to passengers promoting the air carrier or pointing out sights of interest, and filling out company payroll and related records are not required for the safe operation of the aircraft.

So, in the Schear case we have Delta crew members identifying an occupied seat without (to their perspective) a correlating checked-in passenger.  They then go through the process of seeking to vacate that seat, as they felt was their right, which may be any one of: (i) an FAA obligation, (ii) a TSA obligation (due to the erroneous name), or (iii) a Delta obligation (pursuant to the non-transferability of the subject ticket as set forth in the Delta contract of carriage).

The regulations do not delineate between government and company-mandated obligations in establishing the concept of a crew member’s “duties” (reference is in fact made to both such classes of duties), so in any case, the attendants are likely justified in considering the process here as part of those same “duties”.

A process undoubtedly interfered with by Mr. Schear.

The Rights of a 2-Year-Old

Finally, one of the earliest claims made by Delta crew members in the above video is that Grayson Schear could not possibly be permitted to sit in the seat the Schears would like to put him in, owing to the fact that it is against the law (or FAA regulation) for a 2-year-old to have its own seat.

Simply put, the issues here are quite complicated.

First is the issue of Grayson Schear’s age itself.  If Grayson is in fact two years old, it actually appears a violation of the relevant regulations, by my reading, to treat him as an infant in arms capable of sitting on a parent’s lap, at all.

From 14 CFR 121.311 (Emphasis Added):

No person may operate an airplane unless there are available during the takeoff, en route flight, and landing—

(1) An approved seat or berth for each person on board the airplane who has reached his second birthday; and

(2) An approved safety belt for separate use by each person on board the airplane who has reached his second birthday

If Grayson is two years old, this regulation states that he must have his own seat and belt, not the opposite.  So let’s assume that some of the facts in the story are wrong and that young Grayson Schear is in fact “almost” two years old.

The FAA certainly doesn’t seem to have any problem with a 1-year-old getting its own seat.

From the FAA’s customer help website:

Airlines currently allow children under the age of two to fly free of charge as “lap children,” not the safest way for a child to travel. Many airlines offer half-price tickets so parents can be guaranteed that their child can travel in a CRS or device. Parents should call their airline to ask for a discount and/or ask what the airline’s policy is for using empty seats.

An odd position to take if a separate seat for a toddler were illegal.

And in case you were wondering, a “CRS or device” is also not a clear requirement.  From the same website:

The FAA does not require the use of CRS’s on commercial airplanes…

Now, things get a little confused from there (again, just a taste of regulation reading).

Though the FAA states plainly that it does not require CRS devices for a toddler, 14 CFR 121.311 states the following:

Notwithstanding the preceding requirements, a child may:

(1) Be held by an adult who is occupying an approved seat or berth, provided the child has not reached his or her second birthday and the child does not occupy or use any restraining device; or

(2) Notwithstanding any other requirement of this chapter, occupy an approved child restraint system…

The regulation goes on to specify a number of requirements of the “approved child restraint system”.  And while the regulation is framed with a permissive “may”, it also puts forth what appears to be a very pertinent prohibition.

Except as provided [in a valid CRS], no certificate holder may permit a child, in an aircraft, to occupy a booster-type child restraint system, a vest-type child restraint system, a harness-type child restraint system, or a lap held child restraint system during take off, landing, and movement on the surface.

As a “lap held child restraint” would appear to describe an airplane’s standard seat belts, these regulations would suggest that the FAA does, in fact, require a CRS (of some kind) in cases where a toddler is otherwise sitting in its own seat.  (The FAA’s allowance here appears to be solely for lap holding, not for separate seat occupancy.)  A backwards way to get there, to be sure, but a requirement all the same.

But even with that interpretation, there are a few things to note:

(1) The regulations don’t bother to limit the application here to a child less than two years of age.  If we are really being silly, “I am a child of someone, do I need to get into a CRS?

(2) This restriction only applies to take off, landing, and taxing.  As part of the above video, we hear Mr. Schear offering to put Grayson on his lap for take-off provided they can sit him down in-flight.  Delta crew says that is not permissible.  The regulations would appear to differ.

(3) There are a few exceptions for parent and airline(!) provided CRS devices.  In other words, Delta may have been able to provide a compliant seat if it were so inclined. That clearly does not appear to have come into play here.

So, muddled as it is, Delta is probably correct to state that (assuming he is not 2) Grayson is not permitted to simply sit by himself for taxiing or take-off without a valid CRS, but the Schears are right to state that he should be permitted his own seat once the flight is in the air.

Like so much of this story, each side has a valid interpretation of their rights.

Summary

4,000 words later, what have we learned?

(1) If the Schears didn’t have Mason’s name changed on the ticket, and didn’t otherwise attempt to check in the third seat, Delta was probably within its rights to view such seat as unoccupied and the Schears as “trespassing” (or similar) through little Grayson’s occupancy.

(2) Because the Delta employees were validly trying to clear what they felt was an unlawfully occupied seat, they were likely exercising their “duties” as understood in the federal aviation regulations.

(3) Mr. Schear undoubtedly interfered with the exercise of those “duties”, but by doing so without assault or intimidation it would not appear that he should run the risk of arrest or detainment under the law.

(4) There is some question as to whether the refusal to follow an instruction of the crew, if done calmly and without threat, should rise to the level of permitting Delta to invoke its removal powers under the Contract of Carriage, but given their “colorable” claim of following applicable law, regulations, and contract terms, Delta would appear to have at least some cover to claim that the Schears’ refusal was de facto disruptive.

(5) If Grayson Schear is two years old, his own seat was likely mandated by law, not prohibited.

(6) If Grayson Schear was not two years old, the Schear’s proposal to have him sit on their laps solely for takeoff was likely reasonable, and the airline should not have dismissed it out of hand.

Which is all a (very) long way of saying, Delta has a much better claim here than United did in the Dr. Dao case, but the PR imagery may, once again, be significantly most costly than simply accommodating the Schear family would have otherwise been.

As I stated in my United piece:

At the end of the day, contract terms are “words on paper”.  Just because you have the right to do something doesn’t mean you should (not just to be a nice citizen, but, in some cases, to avoid losing millions).

Business, political, and logistical considerations all need to play a role. If the Contract of Carriage said United could kidnap its passengers, steal their belongings, and perform psychological tests upon them, then perhaps they could, legally, but it would still be a PR disaster.  “Legal” does not mean “ethical“.  There’s more to running a business then simply doing what the lawyers say is acceptable under your “Terms and Conditions”.

Really something for these airlines to consider.

Word of the Week – Unremitting

Never stopping, becoming weaker, or failing

“Despite all logic to the contrary, the airlines’ efforts to lower their public standing proved unremitting.”

You know, if I’m not careful, this whole blog may just wind up turning into a line-by-line review of airline carriage terms.

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Thanks for stopping by.  Want to tell me how wrong I am?  How right? Feel free to leave a comment down below, and be sure to check out the rest of Rules of the Game and www.hoeglaw.com for legal insights, commentary, and (hopefully) helpful articles.

Have a great (early) Friday everybody!

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