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Can the Airline Bump You and Then Drag You Off the Plane?

Posted April 11, 2017

By Jonathan A. Karon

In light of the shocking video of the United Airlines passenger being forcibly dragged off an airplane at O’Hare Airport last Sunday, a number of people have asked me if I could provide a little information about your legal rights while flying. Although a little far afield from my usual area of practice, I too was curious, so here’s what I learned. Spoiler alert-the deck is stacked in the airline’s favor.

First, the good news. If you are bumped from a flight, you do have the right to some significant compensation. Department of Transportation (DOT) regulations provide that if a flight is overbooked, the airline must first request volunteers to take a different flight. If there are not enough volunteers, then the airline can kick you off the flight in what is known as “involuntary bumping”. If you are involuntarily bumped, DOT requires that you be given a written statement explaining your rights. If the airline doesn’t provide you with substitute transportation that gets you where you were going within an hour of your scheduled arrival time, then you are entitled to compensation. The amount depends on how long you are delayed and how much your ticket costs (which is why some airlines prioritize bumping passengers who bought the cheapest tickets). In a nutshell: if you are delayed one to two hours you are entitled to 200% of the one way fare, up to a maximum of $675; if you are delayed more than two hours or the airline doesn’t provide you with substitute transportation then it’s 400% of a one way fare, up to a maximum of $1350). You do need to have a confirmed reservation and have checked in by the check in deadline.

Now, according to one travel blog, the same people who brought you baggage check fees, usually try to buy you off with a ticket or a voucher and don’t advertise the fact that you have the right to insist on being paid in money. If you insist, they have to give you a check for the appropriate amount. The DOT’s publication “Fly Rights” is available on-line and is a remarkably helpful guide.

My friend, Dr. Maura Jane Farrelly, who has a habit of posing interesting legal questions, wondered if the airlines also snuck arbitration agreements or other anti-consumer provisions in their airline tickets. The answer is that it’s not on their tickets, it’s on their websites and it’s a document called the “Contract of Carriage”. Each airline has its own, lengthy document, which (and my eyes glazed over when I started to read one) as far as I can tell is designed to limit passenger rights to the maximum extent possible. I didn’t actually see an arbitration agreement in one but there were numerous limitations on liability. If you’d like to see an example of one, you can go to United Airlines’ website.

Finally, can they really physically drag you off a plane? Unfortunately, yes. Federal law (49 U.S. Code § 46504) makes it a criminal offense, punishable by a fine or up to twenty years in prison, to interfere “with the performance of the duties” of a member of a flight crew or flight attendant or to “lessen the ability of the member or attendant to perform those duties.” Now, I haven’t checked to see if there are actually court cases interpreting just what constitutes this kind of “interference” but I’m pretty sure that it gives them cover to take you off a plane.

So, what are the takeaways? If you’re bumped, ask for the money and don’t make them physically drag you off the plane. Also, if you’re going from Boston to New York, take the Acela.

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