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

2018 Risk All Stars

Stop Mitigating Risk. Start Conquering It Like These 2018 Risk All Stars

The concept of risk mastery and ownership, as displayed by the 2018 Risk All Stars, includes not simply seeking to control outcomes but taking full responsibility for them.
By: | September 14, 2018 • 3 min read

People talk a lot about how risk managers can get a seat at the table. The discussion implies that the risk manager is an outsider, striving to get the ear or the attention of an insider, the CEO or CFO.

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But there are risk managers who go about things in a different way. And the 2018 Risk All Stars are prime examples of that.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Goodyear’s Craig Melnick had only been with the global tire maker a few months when Hurricane Harvey dumped a record amount of rainfall on Houston.

Brilliant communication between Melnick and his new teammates gave him timely and valuable updates on the condition of manufacturing locations. Melnick remained in Akron, mastering the situation by moving inventory out of the storm’s path and making sure remediation crews were lined up ahead of time to give Goodyear its best leg up once the storm passed and the flood waters receded.

Goodyear’s resiliency in the face of the storm gave it credibility when it went to the insurance markets later that year for renewals. And here is where we hear a key phrase, produced by Kevin Garvey, one of Goodyear’s brokers at Aon.

“The markets always appreciate a risk manager who demonstrates ownership,” Garvey said, in what may be something of an understatement.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Dianne Howard, a 2018 Risk All Star and the director of benefits and risk management for the Palm Beach County School District, achieved ownership of $50 million in property storm exposures for the district.

With FEMA saying it wouldn’t pay again for district storm losses it had already paid for, Howard went to the London markets and was successful in getting coverage. She also hammered out a deal in London that would partially reimburse the district if it suffered a mass shooting and needed to demolish a building, like what happened at Sandy Hook in Connecticut.

2018 Risk All Star Jim Cunningham was well-versed enough to know what traditional risk management theories would say when hospitality workers were suffering too many kitchen cuts. “Put a cut-prevention plan in place,” is the traditional wisdom.

But Cunningham, the vice president of risk management for the gaming company Pinnacle Entertainment, wasn’t satisfied with what looked to him like a Band-Aid approach.

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Instead, he used predictive analytics, depending on his own team to assemble company-specific data, to determine which safety measures should be used company wide. The result? Claims frequency at the company dropped 60 percent in the first year of his program.

Alumine Bellone, a 2018 Risk All Star and the vice president of risk management for Ardent Health Services, faced an overwhelming task: Create a uniform risk management program when her hospital group grew from 14 hospitals in three states to 31 hospitals in seven.

Bellone owned the situation by visiting each facility right before the acquisition and again right after, to make sure each caregiving population was ready to integrate into a standardized risk management system.

After consolidating insurance policies, Bellone achieved $893,000 in synergies.

In each of these cases, and in more on the following pages, we see examples of risk managers who weren’t just knocking on the door; they were owning the room. &

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Risk All Stars stand out from their peers by overcoming challenges through exceptional problem solving, creativity, clarity of vision and passion.

See the complete list of 2018 Risk All Stars.

Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]