Metropolitan News-Enterprise


Monday, August 2, 2010


Page 1


Ninth Circuit Revives Suit By Passengers Removed From Airline


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday reinstated part of a lawsuit by a group of passengers who were forced by Alaska Airlines to disembark from a flight before their voyage was completed.

Writing for a three-judge panel, Chief Judge Alex Kozinski said an international treaty only granted immunity if the carrier acted reasonably in removing the passengers from the flight, and reversed a grant of summary judgment by a federal judge in Nevada.

The panel also held that the airline was immune under the Convention on Offenses and Certain Other Acts Committed on Board Aircraft, or the Tokyo Convention, from a defamation claim for statements its flight crew made to authorities after the plane was diverted. However, the judges said the airline was not immune from a similar claim over an in-flight announcement blaming the plaintiffs for the delay after the plane took off without them to complete the voyage.

The nine plaintiffs—a group of Egyptian businessmen and others—were removed from the first-class section of a 2003 flight from Vancouver, British Columbia, to Las Vegas after it was diverted to the Reno-Tahoe Airport following an altercation with a flight attendant.

The plaintiffs alleged that the delay caused some of them to miss their meeting in Las Vegas with a Texas-based manufacturer of natural gas equipment for whom the businessmen were interested in becoming distributors.

Plaintiffs’ Response

Santa Barbara attorney Gilbert Gaynor, who argued for the plaintiffs before the Ninth Circuit, told the MetNews that the case “reminds the airline industry that although security is important, the law recognizes that, passengers are still human beings and they need to be treated reasonably, and that includes passengers from other cultures.”

A spokesperson for Alaska Airlines, however, commented that the ruling “was about the legal process, and not the substance of the plaintiffs’ claims or the propriety of our crew’s actions.”

Both Gaynor and the Alaska representative said their clients were reviewing the opinion to determine whether to challenge the decision.

According to the plaintiffs, and another first class passenger, the altercation arose when one flight attendant asked one of the plaintiffs—a man in his 60s who was standing to stretch—to move to the back of the first class cabin away from the flight deck entrance. When he complied, another flight attendant ordered him back to his seat and began hectoring him about standing in the aisle.

When the passengers protested their treatment, the flight attendant asked the pilots to land the plane. Once it was on the ground, police and the Transportation Security Administration cleared the plaintiffs to continue flying, but the pilot declined to allow them to reboard.

Instead, the plaintiffs booked seats on America West and were allowed to proceed to Las Vegas, even though Alaska contacted America West and urged that they be denied passage.

Report Filed

Alaska later filed a report with the FBI’s Joint Terrorism Task Force, which led to the detention of the plaintiffs at the convention and interrogation about their Muslim faith, mosque affiliations and employment histories. The detention and interrogation caused the businessmen to miss a rescheduled meeting with the Texas company, the plaintiffs claimed.

The plaintiffs filed suit under another international treaty governing air carriage, the Warsaw Convention, for damages due to the delay, and a variety of state-law defamation and intentional infliction of emotional distress claims.

U.S. District Judge Robert Clive Jones dismissed the state-law claims as preempted, and granted Alaska Airlines summary judgment on the Warsaw Convention claim on the ground that the airline was entitled to immunity under the Tokyo Convention. He also denied the plaintiffs leave to file a supplemental complaint alleging seven new defamation claims based on evidence they obtained during discovery.

However, Kozinski wrote on appeal that airlines are immune from liability for conduct covered by the Tokyo Convention only to the extent flight commanders act reasonably in exercising the powers granted to them to remove passengers. He said it was up for a jury to decide whether the crew had reasonable grounds to divert the plane and whether it acted reasonably once the plane was on the ground.

The chief judge agreed with Jones that statements made by the flight crew to law enforcement when it landed were protected under the convention, but he said that the subsequent in-flight announcement was not protected because the convention did not apply where the plaintiffs had already disembarked and were no longer on board.

Turning to the request to supplement the complaint, Kozinski opined that Jones properly rejected it because it dealt with events that occurred before the complaint was filed, not events that occurred later.

Judge N. Randy Smith joined Kozinski in his opinion, and U.S. District Judge S. James Otero of the Central District of California, sitting by designation, concurred in part and dissented in part. Otero wrote that “the unintended but probable consequence of the standard my colleagues adopt for judging the in-flight conduct of a pilot under the Tokyo Convention is risk to passenger and crew safety—an affront to the principal purpose of the Tokyo Convention.”

The case is Eid v. Alaska Airlines, Inc., 06-16457.


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