Aviation Risk

Turbulence Increasing

Political and cultural clashes are moving off the streets and into the aisles of airplanes.
By: | May 2, 2017 • 8 min read

Turbulence in the air is increasing, and a change in flight plan isn’t the answer.

As cultural and political clashes move from the streets into the air — and onto YouTube — airlines must protect their brands and other passengers before events get out of hand. Liability is generally not an issue unless there is bodily injury, but even then it’s questionable whether an airline would be found at fault when a dispute is between two passengers.

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While incidents involving unruly passengers on airplanes have been increasing, there are no statistics kept on the types of disturbance that have occurred.

Yet, anecdotal evidence abounds. More than 2 million people have watched YouTube videos about the New York attorney who was kicked off a JetBlue flight after verbally accosting Ivanka Trump and her family.

Both supporters and critics of President Trump have been kicked off airplanes after loudly proclaiming their political views, and sometimes refusing to sit next to people who have different opinions.

It’s not just political disagreements that bedevil airlines. Some Orthodox Jewish or Muslim men have refused to sit next to women. Some Muslim passengers have been removed from planes just for speaking Arabic or been refused boarding for praying before take-off.

Some men are asked to switch their seats to avoid having them seated next to unaccompanied underage females. Some women who travel alone have been assaulted by seatmates.

“The airline is truly caught in the middle of this situation and doesn’t want to be there,” said attorney Mark Dombroff, chair of the aviation practice at Dentons law firm. “Yet, they find themselves wrapped up in this cultural tension.

“You overlay heightened awareness of terrorism and cultural sensitivity, and put that in the context of the already stressful environment of aviation and I think it ratchets up the issue on airplanes.”

Two brokers who work with the aviation industry said no insurance claims relating to political or cultural disputes have been filed, according to the claims adjusters they spoke with.

A Difficult Situation

“It’s very difficult to answer on a universal level as to what an airline can do about it,” said Rob Lawson, a partner at the Clyde & Co. law firm, who specializes in aviation. “You’re damned if you do and damned if you don’t.

“Historically, the problem with unruly passengers has been in relation to passengers who have been fueled by alcohol. That’s a very different problem than a cultural issue.”

Mark Dombroff, chair of the aviation practice, Dentons

The number of incidents on-board airlines has been increasing.

From 2007 to 2013, an analysis by the International Air Transport Association (IATA) found one unruly incident per 1,600 flights. In 2015, it increased to one incident for every 1,205 flights. Intoxication was identified in about one-quarter of the reported cases. The majority of the incidents involved verbal altercations, 11 percent involved physical aggregation or damage to the aircraft.

More than half (53 percent) of IATA members surveyed in 2015 said that the frequency of unruly passengers had increased in the past five years, and 40 percent had diverted a flight in the past 12 months due to an unruly passenger.

“The airline is truly caught in the middle of this situation and doesn’t want to be there.” —Mark Dombroff, chair of the aviation practice, Dentons

According to the FAA — which tracks domestic flights as opposed to all flights tracked by the IATA — there was one unruly passenger for every 114,500 flights.

The FAA number reflects “the lowest it has ever been since the federal government has tracked this specific unruly passenger data,” according to Airlines for America (A4A), a trade organization representing airlines.

“The world of airline travel is not easy today. … You have a mix of every conceivable personality, heritage, weight, all sitting in these tiny seats that seem to get smaller all the time,” said Bradley Meinhardt, area president and managing director-aviation, Arthur J. Gallagher & Co., a repeat Power Broker® in the aviation category. “That can be a volatile mix.”

One broker who asked not to be identified said she personally experienced a disconcerting incident on an airline when the Muslim man sitting next to her said he didn’t want to speak with her because she was not a believer. He did not ask that she be moved.

“It was a little uncomfortable,” she said. “This is definitely something that could be an issue and probably will be an issue.”

Decision-Making on the Fly

Safety will always be at the forefront of the airline cabin crew’s response.

“The safety of our passengers and crew are always our highest priority, and the crew members on board the plane are always mindful of the need to keep all passengers safe,” said Kathy Grannis Allen, managing director, airline industry public relations, communications, A4A, in an email.

“Airline employees rely on their extensive customer service training to address the rare instances when passenger disruptions happen on board … . A4A has supported vigorous prosecution of passengers charged with disruptive behavior aboard aircraft,” she said.

“Interfering with the flight crew’s performance of duty is a federal charge [on U.S. domestic flights],” said Dombroff.

Prosecution doesn’t require specific intent to interfere, he said. “The mere fact of it occurring is sufficient.”

For international flights, it’s more complex. In many cases, the country where a passenger leaves the plane does not have jurisdiction to prosecute if the aircraft is registered in another country, according to the IATA, which noted that the Tokyo Convention of 1963 governs offenses on flights.

The consequence is that the offenders are left unpunished, said the IATA, which noted that the high cost of extradition to the original country is likely to deter all but the most serious prosecutions.

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The IATA has worked with some countries to permit “state-of-landing jurisdiction” to permit prosecution of events that occur onboard foreign aircraft.

But more often, it’s not prosecution that’s involved but escorting offending passengers off the plane if they fail to quiet down or comply with instructions from the cabin crew.

The practice of escorting passengers off planes became a huge international controversy in April when United Airlines forcibly removed a 69-year-old physician because it needed seats to fly crew members to another city.

Cell phone videos showed what appeared to be aviation security officers banging the man’s head into an armrest and dragging him from the plane. The passenger, who suffered a concussion and broken nose, planned to sue the airline.

Once a plane is in flight, the captain is the ultimate onboard authority, said Meinhardt.

If an incident occurs in the air, the captain can decide to divert the plane to a closer landing field, where the offending passenger will be removed.

According to the IATA, the cost of a diversion could cost from $6,000 to $200,000, depending on factors such as whether fuel has to be jettisoned to comply with the aircraft’s maximum landing weight limit, landing fees, accommodation, ground-handling charges, passenger compensation and fuel uplift to complete the journey.

IATA best practices call for using de-escalation techniques with unruly passengers “and as a last resort the use of restraints,” said Jonathan Jasper, IATA cabin safety manager, in an email.

Liability Limited

Ejecting a passenger or moving — or refusing to move — passengers is unlikely to trigger an insurance claim or successful litigation by a passenger. And losses associated with diverting a plane would not lead to a successful insurance claim by an airline, either, experts said.

Lawson of Clyde & Co. said that an airline’s terms and conditions usually give it the right to move passengers, to refuse boarding and eject passengers if they behave in an unreasonable manner. Should that occur, “case law says that if you merely are upset by what an airline says to you in the course of a flight, you have no right of action.”

Bradley Meinhardt, area president and managing director-aviation, Arthur J. Gallagher & Co.

The same is true if a passenger upsets another passenger, he said, explaining that the Montreal Convention [a global airline treaty that establishes airline liability] has an exclusive liability code which says the airline will be liable for bodily injury caused by an accident.

“If nothing qualifies as an ‘accident’ and/or you don’t have any ‘bodily injury’ — in the sense those terms are used in the convention — then there is no basis for a carrier to be held liable,” Lawson said.

“You would not be able to claim, for example, the humiliation and vexation of being moved from your assigned seat or, for example, as a result of having to sit next to a woman on a flight — if that was contrary to your religion — because the Montreal Convention does not provide for liability in such circumstances,” he said.

What’s important, he said, is to have clear policies and procedures for how such situations should be dealt with.

“The system is all important,” he said. “If you try to deal with things ad hoc, you are opening yourself up to an unnecessary and potentially avoidable complaint.”

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Meinhardt said even though such conflicts don’t typically trigger an airline’s insurance policies, that doesn’t mean an airline wouldn’t attempt to soothe hurt feelings by offering apologies, flight vouchers or other amenities.

“I think airlines are doing a great job,” he said. “When they have bad press associated with these incidents where a passenger feels they were mistreated or had a situation that unfortunately got out of control, they are very proactive these days.

“They defuse it, accept it or immediately try to resolve it. They don’t keep quiet, but behind the scenes they move to resolve it by reaching out to the passenger.”

Dombroff added: “Airlines are in the business of passenger satisfaction and they want to protect their brand. While there probably isn’t liability, airlines have settled claims filed against them related to these types of issues to resolve the issue and remove themselves from controversy.

“So long as cultural sensitivity and political sensitivity continue as part of our lives, it will intrude into aviation. It’s inevitable,” he said. “Airlines are the ones caught in the middle. &

Anne Freedman is managing editor of Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

2017 Teddy Awards

The Era of Engagement

The very best workers’ compensation programs are the ones where workers aren’t just the subject of the program, they’re a part of it.
By: | November 1, 2017 • 5 min read

Employee engagement, employee advocacy, employee participation — these are common threads running through the programs we honor this year in the 2017 Theodore Roosevelt Workers’ Compensation and Disability Management Awards, sponsored by PMA Companies.

A panel of judges — including workers’ comp executives who actively engage their own employees — selected this year’s winners on the basis of performance, sustainability, innovation and teamwork. The winners hail from different industries and regions, but all make people part of the solution to unique challenges.

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Valley Health System is all-too keenly aware of the risk of violence in health care settings, running the gamut from disruptive patients to grieving, overwrought family members to mentally unstable active shooters.

Valley Health employs a proactive and comprehensive plan to respond to violent scenarios, involving its Code Atlas Team — 50 members of the clinical staff and security departments who undergo specialized training. Valley Health drills regularly, including intense annual active shooter drills that involve participation from local law enforcement.

The drills are unnerving for many, but the program is making a difference — the health system cut its workplace violence injuries in half in the course of just one year.

“We’re looking at patient safety and employee safety like never before,” said Barbara Schultz, director of employee health and wellness.

At Rochester Regional Health’s five hospitals and six long-term care facilities, a key loss driver was slips and falls. The system’s mandatory safety shoe program saw only moderate take-up, but the reason wasn’t clear.

Rather than force managers to write up non-compliant employees, senior manager of workers’ compensation and employee safety Monica Manske got proactive, using a survey as well as one-on-one communication to suss out the obstacles. After making changes based on the feedback, shoe compliance shot up from 35 percent to 85 percent, contributing to a 42 percent reduction in lost-time claims and a 46 percent reduction in injuries.

For the shoe program, as well as every RRH safety initiative, Manske’s team takes the same approach: engaging employees to teach and encourage safe behaviors rather than punishing them for lapses.

For some of this year’s Teddy winners, success was born of the company’s willingness to make dramatic program changes.

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Delta Air Lines made two ambitious program changes since 2013. First it adopted an employee advocacy model for its disability and leave of absence programs. After tasting success, the company transitioned all lines including workers’ compensation to an integrated absence management program bundled under a single TPA.

While skeptics assume “employee advocacy” means more claims and higher costs, Delta answers with a reality that’s quite the opposite. A year after the transition, Delta reduced open claims from 3,479 to 1,367, with its total incurred amount decreased by $50.1 million — head and shoulders above its projected goals.

For the Massachusetts Port Authority, change meant ending the era of having a self-administered program and partnering with a TPA. It also meant switching from a guaranteed cost program to a self-insured program for a significant segment of its workforce.

Massport’s results make a great argument for embracing change: The organization saved $21 million over the past six years. Freeing up resources allowed Massport to increase focus on safety as well as medical management and chopped its medical costs per claim in half — even while allowing employees to choose their own health care providers.

Risk & Insurance® congratulates the 2017 Teddy Award winners and holds them in high esteem for their tireless commitment to a safe workforce that’s fully engaged in its own care. &

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More coverage of the 2017 Teddy Award Winners and Honorable Mentions:

Advocacy Takes Off: At Delta Air Lines, putting employees first is the right thing to do, for employees and employer alike.

 

Proactive Approach to Employee SafetyThe Valley Health System shifted its philosophy on workers’ compensation, putting employee and patient safety at the forefront.

 

Getting It Right: Better coordination of workers’ compensation risk management spelled success for the Massachusetts Port Authority.

 

Carrots: Not SticksAt Rochester Regional Health, the workers’ comp and safety team champion employee engagement and positive reinforcement.

 

Fit for Duty: Recognizing parallels between athletes and public safety officials, the city of Denver made tailored fitness training part of its safety plan.

 

Triage, Transparency and TeamworkWhen the City of Surprise, Ariz. got proactive about reining in its claims, it also took steps to get employees engaged in making things better for everyone.

A Lesson in Leadership: Shared responsibility, data analysis and a commitment to employees are the hallmarks of Benco Dental’s workers’ comp program.

 

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]