Recently a shocking ‘urinating’ incident took place board Air India flight AI-102 bound for New Delhi from New York JFK wherein a man allegedly urinated in an inebriated condition on a woman co-passenger. As per media reports, while Air India already issued a show cause notice and de-rostered one pilot and four cabin crew pending the outcome of its investigation, it’s chairman issued a press statement stating that it fell short of addressing the situation the way it should have been. Meanwhile the Director General of Civil Aviation (“DGC”), India’s aviation watchdog, also issued a notice to Air India in this regard. The author endeavours to analyze this shocking incident from a legal perspective.
The DGCA issued a Civil Aviation Requirement (“CAR”) regarding handling of unruly/disruptive passengers being Civil Aviation Requirements Section 3- Air Transport Series M Part VI Issue II dated 08.09.2017. The said CAR was issued under Rules 22, 23 and 29 of the Aircraft Rules that were framed in pursuance of the enactment of the Indian Aircraft Act, 1934 and with the approval of the Ministry of Civil Aviation. The CAR acknowledges the concern that adoption of unlawful/disruptive behaviour in any situation on board the aircraft or during embarkation/disembarkation may interfere with the performance of the duties of the crew members or lessens the ability of the crew member to perform those duties or jeopardize the safety of the aircraft/persons/property on board/good order and discipline on board, aggravate discomfort to other passengers and crew members and may invite penal action in accordance with applicable regulations.
The CAR also recognizes that unruly/disruptive behaviour on board an aircraft is an offence and punishable act and that unruly passengers affect all personnel involved in the process connected with a flight operation. The provisions contained in the CAR are applicable to all Indian operators engaged in scheduled and non-scheduled air transport services both domestic and international for carriage of passengers, all foreign carriers engaged in scheduled air transport operating to and from Indian territory, all airport operators within Indian territory and all passengers during the period of air travel in or over India. The Montreal Protocol, 2014 expands the grounds of mandatory jurisdiction by recognizing under certain conditions, the competence of the State of Landing and the State of operator to exercise jurisdiction over offences and acts on board aircraft. It states that if the aircraft diverts to a third State then that State also has the competence to exercise jurisdiction. This important change should help to close the jurisdictional gap that allows many unruly passengers to avoid facing criminal, administrative or other legal sanctions in a third State for their misconduct. India signed the said Protocol on April 4, 2014 however it is yet to come into force.
The CAR defines inter alia a disruptive passenger. It states that the condition of carriage shall include statutory warning specifying the act, which has been declared unlawful/disruptive under the provisions of the Aircraft Rules, 1937. The CAR further mandates airlines to establish Standard Operating Procedures to deal with unruly/disruptive passengers while at the airport or on board the aircraft. Paragraph 4.8 of the CAR makes it obligatory for passengers to be made aware through display at prominent locations in the airport terminal building that any act, which is considered an offence on the ground and invites penal action as per law, would also be an offence if committed onboard aircraft. This provision is however silent on whether the obligation is only upon the airport operator to whom the said CAR is applicable, or even on the airline operator to do so at its check in desks, airline lounge, bus used to ferry passengers to the aircraft etc.
The IATA came out with its second edition of a guidance on “Unruly Passenger Prevention and Management” in January 2015. The guidance material contains a model Passenger Notification Warning Card that can be handed to a disruptive passenger. The Warning Card outlines in plain language the aircraft commander’s powers under the Tokyo Convention, 1963 and warns of the immediate consequences of continued misbehavior, including the possibility of criminal penalties. As per paragraph 4.6 of the CAR, airline staff should observe early signs of potential unruly behaviour. Therefore the CAR should also contain a provision making it mandatory for airlines to hand over such a warning card to a passenger who appears to be disruptive.
The CAR as per paragraph 4.9, makes an attempt to include various activities which if attracted could make the concerned passenger fall within the definition of a disruptive passenger. This includes although not limited to
These activities are in line with the common types of behaviour to constitute unruly behaviour as discussed by IATA in an International Conference on Air Law on the views on some practical aspects of the issue of unruly passengers organized by ICAO in March/April 2014. IATA has also developed model Briefing Cards to be handed over to law enforcement authorities by an aircraft commander when either disembarking or delivering passengers under the Tokyo Convention. The card explains the powers of the aircraft commander, the right to disembark or deliver passengers and the right and obligations of local authorities under the Convention. These cards are intended to address the lack of awareness demonstrated by many law enforcement officials of their powers and obligations under the Conventions. The Sample Unruly Passenger Incident Report form can also be used by airlines to ensure that all relevant details and evidence about a given event are appropriately recorded. The IATA guidance material prescribes 4 levels of interference namely Level 1 (light), Level 2 (moderate), Level 3 (serious) and Level 4 (Flight Deck) as opposed to the 3 levels of unruly behaviour a prescribed in paragraph 4.10 of this CAR. An unruly inebriation such as the incident in question would attract a level 1 case.
Pertinently paragraph 4.11 of the CAR also puts an obligation on the Pilot-in-Command to quickly assess if the cabin crew can control the unruly passenger and accordingly relay this information to the airline’s central control on the ground. Furthermore as per paragraph 4.12, if the situation so warrants, the airline’s central control in consultation with the Pilot-in-Command has to identify an alternate aerodrome for landing of the aircraft as soon as possible. The CAR does provide for an airline implementing a procedure to ensure that all unruly passenger incidents are reported and documented in an effective manner, not only to gain an understanding of the incident themselves. Upon landing the aircraft, paragraph 4.13 mandates the concerned airline’s representative to lodge an FIR with the concerned security agency at the aerodrome to which the unruly passenger is handed over.
The question that arises is who would be held liable for such an incident in addition to the passenger who commits the unruly act. Generally, Article 10 of the Tokyo Convention i.e. the immunity clause will cover measures taken by the crew or passengers in conformity with the Convention so that no legal remedies can be taken against them. However, excessive use or misuse of those powers is no longer covered by the immunity clause, so that the crew and participating passengers can be held liable. In Langadinos v. American Airlines 199 F.3d 68 (1st Cir. 2000), the airline was held liable for continuing to serve alcohol to an intoxicated passenger who then assaulted the plaintiff.
To conclude that the CAR issued by the DGCA in regard to unruly passengers is a modern and effective legal framework to deal with unruly and disruptive behaviour on board aircraft. In accordance with the aforesaid provisions, an FIR has been registered against the accused passenger and Air India has de-rostered one pilot and four cabin crew for failing to act in accordance with the same pending outcome of the investigation. However in my opinion, the role of the airline has to be also considered as to whether, its central control had a consultation with the Pilot-in-Command to identify an alternate aerodrome for landing of the aircraft as soon as possible. This would of course be subject to if the Pilot-in-Command quickly assessed if the cabin crew could control the unruly passenger and accordingly relayed this information to Air India’s central control on the ground. Furthermore to ensure that sufficient and appropriate information is available for legal and judicial purposes in the event of prosecution, the crew should also be obligated to gather contact information from all passengers who witnessed the incident, as their testimony might be required in later legal proceeding. Such a provision though is sadly missing in the CAR and could cause an impediment to the trial of the accused. In addition, the Government could also refer to ICAO Circular 288 – Guidance Material on the Legal Aspects of Unruly/Disruptive Passengers, and any subsequent update thereto, as a guide in this regard and make suitable amendments to the CAR.