A person who hires a common carrier of passengers gratuitously is called a passenger of a carriage. But, a person who hires a common carrier of passengers for compensation cannot be classified as a passenger of a carriage. Under the Warsaw Convention, a passenger is a person who enters a carriage for the primary purpose of either going from one place to another or for the recreational enjoyment of the journey itself, in consistency with the contract of carriage. An air carrier, intrastate air carrier, or foreign air carrier can refuse the transportation of the following[i]:
- a passenger who does not consent to a search to find out whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance; or
- the property of a passenger who does not consent to a search of the property to find out whether the property unlawfully contains a dangerous weapon, explosive, or other destructive substance.
However, pursuant to 49 USCS § 41310 an air carrier or foreign air carrier must not subject a passenger, place, port, or type of traffic in foreign air transportation to any unreasonable discrimination. Likewise, an air carrier or foreign air carrier must not subject a passenger in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry[ii]. Upon receiving a complaint alleging discrimination in foreign travel, the secretary of transportation shall investigate the matter, will take action on appropriate complaints, and shall report the decision to the secretary of state. The secretaries of state and transportation will then begin negotiations with the appropriate government to end the discrimination. If discrimination does not cease within a reasonable time through negotiations then the secretary of transportation shall establish a compensating charge equal to the discriminatory charge. Such compensating charge will be imposed on a foreign air carrier of that country as a condition to accepting the general declaration of the aircraft of the foreign air carrier when it lands or takes off[iii]. The practice of overbooking however does not amount to discrimination. Generally, the remedies available to a ticketed passenger who is knocked down from an overbooked flight are:
- to accept the airline’s offer of alternative transportation;
- to accept compensation from the airline in the form of money, travel vouchers, or a combination thereof; or
- to seek damages in court.
All passengers and property, including U.S. mail cargo, carry on and checked baggage, and other articles that are to be carried aboard a passenger aircraft will be subject to screening, under the supervision of a uniformed federal personnel of the Transportation Security Administration[iv]. In addition to providing for the screening of all passengers and property, the under secretary of transportation for security must also prescribe[v]:
- · regulations to protect passengers and their property from acts of criminal violence or aircraft piracy;
- · regulations that require each operator of an airport regularly serving an air carrier to establish an air transportation security program to ensure the safety of passengers; and
- · regulations to authorize the operator to use the services of qualified state, local, and private law enforcement personnel.
Further, it is well established under the Federal Aviation Act that every carrier must file with the Civil Aeronautics Board (CAB) and print and keep open to public inspection tariffs showing all rates, fares, and charges for air transportation. In addition, they must also show all classifications, rules, regulations, practices, and services in connection with such transportation, to the extent required by regulations of the board. Upon the filing of the tariff with the CAB, the tariff becomes a part of the contract under which the passenger and his/her baggage are carried. Therefore, the tariffs filed with the CAB constitute the contract of carriage between passenger and airline. And such tariff will conclusively determine the rights and liabilities between the parties[vi]. The CAB has the primary jurisdiction to determine the validity of a filed tariff. The tariffs are both conclusive and exclusive and they may not be supplemented by reference to outside contracts, private agreements, or understandings. Generally, passengers on a domestic flight are conclusively deemed to have had notice of the contents of the carrier’s tariff and are consequently bound by its limitation as a matter of law[vii]. Accordingly, the tariff provisions are binding on the passenger, even if the passenger does not actually know about the provisions of the contract[viii]. Pursuant to 49 USCS § 41707, an air carrier may incorporate by reference in a ticket or written instrument any term of the contract for providing interstate air transportation, to the extent the secretary of transportation prescribes by regulation. In Eastern Air Lines v. Williamson, 282 Ala. 421 (Ala. 1968), the court held that “tariffs filed, pursuant to federal statute, with the Civil Aeronautics Board by an air carrier, and approved by the Board, constitute a part of the contract for the carriage of property or a passenger’s baggage, and, to the extent that an air carrier’s duly filed tariffs limiting liability for loss of a passenger’s baggage are valid, they become a part of the carrier’s contract with the passenger. The liability of an interstate airline carrier with respect to the baggage of a passenger is limited under the carrier’s tariff to the value stated therein where no higher valuation was declared or additional charges paid, as required by the tariff. An air carrier is not liable for the loss of baggage in an amount in excess of the limits specified in the tariff, which was filed with the proper authorities, such tariff being binding on the passenger regardless of the passenger’s lack of knowledge thereof or assent thereto. Where a tariff is filed by an air carrier for interstate transportation, the applicable law with respect to loss of or damage to baggage or freight resulting from negligence is federal law, and under such law and pursuant to the Federal Aviation Act, air carriers may limit their liability for negligence.” The inclusion of baggage carriage is considered an essential and necessary part of the transportation of passengers, and the regulations which determine and fix the rate of passage fare takes into account the responsibility assumed by the carrier and the value of service rendered to the passenger. Hence, when lawfully established, the tariff forms a part of the contract of travel. It has the effect of law and its provisions are binding upon both the passenger and the carrier. It is not essential to the applicability of the tariff limitations that the passenger is informed that a choice of rates is available, because the presumption is that s/he knew the provisions of such schedule[ix].
[i] 49 USCS § 44902.
[ii] 49 USCS § 40127.
[iv] 49 USCS § 44901.
[v] 49 USCS § 44903. [vi] Enwerenuzor v. Iberia Airlines of Spain, 1994 U.S. Dist. LEXIS 81 (E.D.N.Y. Jan. 5, 1994).
[vii] Goldstein v. Eastern Airlines, Inc., 1972 U.S. Dist. LEXIS 12981 (E.D. Pa. June 29, 1972).
[viii] Fontan-de-Maldonado v. Lineas Aereas Costarricenses, S.A., 936 F.2d 630 (1st Cir. P.R. 1991).
[ix] Kellett v. Alaga Coach Lines, Inc., 34 Ala. App. 152 (Ala. Ct. App. 1948).