Airline customers: Passengers or prisoners?

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On Wednesday, the White House launched an investigation of a Continental Express flight that stranded passengers on the ground for several hours last week. As the oddly-familiar incident has gained news traction, it has reignited a debate about how airlines should be required to treat passengers.

Here are the details: On Friday, August 7, Continental Express Flight 2816 left Houston, Texas at 9:23 PM. En route to Minneapolis, the flight was diverted to Rochester, Minnesota because of severe thunderstorms. At midnight, the plane was offered access to a bus that would take the passengers the final 85 miles to Minneapolis. Flight dispatchers refused, stating that they planned to wait until the storms cleared. For the next six hours, the passengers remained on the plane as food and water ran out and the toilets jammed and overflowed. At 6:00 am, they were allowed to go into the airport at Rochester. Two and a half hours later, the plane took off and finally arrived in Minneapolis at 9:30, more than 12 hours after leaving on a 2.5 hour flight.
For anybody who can remember back to the days before the recession, such stories are all too familiar. Back then, as overloaded airports led to insane delays, many passenger lobbyists pushed for the adoption of a "Passenger Bill of Rights," which required that airlines provide passengers with sufficient food and sanitary facilities, limit tarmac delays to three hours, and offer financial benefits to stranded customers.

Passenger lobbying resulted in the so-called "Tarmac Task Force," a panel that was given the responsibility of determining standards for grounded airplanes. Dominated by airline industry representatives, the task force debated for a year before it ratified a set of non-binding "recommendations" for airlines and airports. Needless to say, these had little effect upon the problem.

As the task force stonewalled, New York state pushed ahead with its own passenger bill of rights. Although the legislature was able to enact a law guaranteeing that passengers received food, water, clean toilets and fresh air, the new rules were quickly challenged by the Air Transport Association of America. The 2nd U.S. Court of Appeals subsequently struck it down, ruling that it interfered with federal laws governing interstate trade.

Meanwhile, a federal passenger rights bill has been slowly wending its way through Congress. In January, the House of Representatives passed it, after allowing it to molder in committee for over two years. A comparable Senate bill is currently pending.

As airline lobbyists complain about the unfair restrictions being pushed by passenger advocates, it's worthwhile to take a step back and consider what, exactly, is on the table. The minimal standards that are being discussed are surprisingly similar to those required by the Third Geneva Convention (GCIII), which concerns the treatment of prisoners of war. Article 26 of the GCIII states that "The basic daily food rations shall be sufficient [...] to keep prisoners of war in good health. [...] Sufficient drinking water shall be supplied to prisoners of war." The Passenger Bill of Rights, which has been stonewalled in task force meetings, courtrooms, and the halls of Congress, requires the same standards. It is notable that, for much of the ordeal of flight 2816, neither food nor water were available.

Another pertinent article is number 29, which states that "The Detaining power shall be bound to take all sanitary measures necessary to ensure the cleanliness and healthfulness of camps and to prevent epidemics. [...] Prisoners of war shall have for their use, day and night, conveniences which conform to the rules of hygiene and are maintained in a constant state of cleanliness." This phrasing leaves little wiggle-room, and Continental's move to keep its passengers in an airplane with stale air and an overflowing toilet is a clear violation of this standard.

Of course, passengers could always complain: after all, the First Amendment to the Constitution guarantees freedom of speech, which means that passengers should, in concept, be able to voice their grievances. However, a broad application of the Patriot Act has, effectively, suspended freedom of speech on airplanes. A particularly powerful example of this is the case of Nicola Cantisani, a blind interpreter who was dragged off an airplane in (ironically) Philadelphia, imprisoned without food and water, and denied access to legal representation after he questioned flight personnel about a two hour delay. While Cantisanti's story is an extreme example, the plethora of similar tales suggests that customers who question their treatment do so at their own peril.

All of this combines to place airline passengers in a strange twilight zone, in which they are, effectively, without legal designation. Denied the basic protections of the Bill of Rights, yet also denied the international protections of the Geneva conventions, they seem to have no legal recourse. Once a passenger steps aboard a plane, he or she effectively consents to a legal kidnapping.

Of course, Continental isn't a signatory to the Geneva Conventions; for that matter, its passengers were not enemy combatants. Similarly, the Bill of Rights is designed to protect citizens against their government, not against corporations. However, it is odd that America's airlines are not required to maintain the same standard of behavior that the government demands in its treatment of enemy combatants. While interstate commerce is certainly worthy of defense, it pales beside the basic civilian legal protections that America has traditionally held dear.

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