The Not-So-Friendly Skies

Yes, believe it or not, United Airlines' ad campaign slogan used to be, "Fly the Friendly Skies of United."  Recent events suggest United isn't living up to that standard.

Or is it?  Most of the opinions I've seen on Facebook are from people whose knowledge of the incident and the facts (ooh, those pesky facts!) surrounding it seems to come from ... Facebook.  And their opinions also appear to be shaped by their preconceived notions (shocker!) about evil corporations.

So your trustworthy Curmudgeon set out to provide the real facts surrounding the United incident, to the best of my ability given that I have to trust various news sources to unearth them.  So I read several accounts, and here's what we know (and may know).

Note that I read accounts from multiple news sources, including Reuters, the Chicago Tribune, NPR and the Louisville Courier-Journal.  I did not resort to blogs for the information below - sage advice to anyone seeking the truth.

On April 9, United flight #3411 was scheduled to fly from Chicago's O'Hare Airport to Louisville, KY.  (The flight was actually operated by Republic Airlines flying on behalf of United Express, the larger airline's regional connector service.  The big airlines - except for Southwest - use regional carriers like this all the time.)

Some accounts state that the flight was overbooked, a common practice among airlines (we'll get into the criticisms of that later).  Those accounts state that United offered booked ticket-holders a $400 voucher and a night's hotel stay to take the next Louisville flight, scheduled for departure on April 10.  Fare on that flight was included in the deal, so that anyone who took it could use the voucher for a future trip.  (Note that other accounts make no mention of the overbooking or of the offers made to ticket-holders at the gate prior to boarding, so I can't confirm the veracity of the accounts that do mention it.)

In any event, presumably some of the ticket-holders took United up on the offer, and United was able to board a completely full flight.

Then, four United crew members came to the gate to board the flight.  Airlines use their own flights to shuttle crews to where they're needed, even if they're not working on that flight.  United needed that crew in Louisville to avoid a delay for the flight scheduled to depart out of Louisville that the crew was needed for.

So United made a calculated decision that I believe any reasonable person would make: it decided to inconvenience four passengers seated on flight #3411 (which had not yet left the gate) rather than inconvenience an entire plane-load of people booked on the flight out of Louisville, who would have missed that flight had the crew not been there to man (or woman) it.

United asked for four volunteers already seated on the flight to give up their seats, again offering the $400 voucher and the hotel stay.  Nobody took the offer, which makes sense; if they hadn't taken the offer before boarding the flight, they weren't likely to take the same offer once they were in their seats.

So United upped the ante to an $800 voucher.  Still no takers.

United then selected four passengers and asked them to exit the aircraft.  Three did so, agreeably.  One did not.

That man was Dr. David Dao, a 69-year-old physician of Vietnamese descent, according to the most reliable articles I could find.  (I only mention his ethnicity because so many have claimed that he was removed from the flight due to anti-Asian prejudice.)  Dr. Dao refused to leave the aircraft (although his wife, also a physician, reportedly had done so peacefully), claiming that he had patients to see at his clinic the following day.

A United manager informed Dao that airport security would be brought onto the plane to remove him if he did not comply willingly.  Dao reportedly replied that he would call his lawyer.

So, United officials asked airport security to board the plane to order Dao to exit the aircraft.  At first, one security officer boarded and told Dao to leave the plane.  He refused.  (Note that airport security at O'Hare is provided by the Chicago Department of Aviation.  Those officers have the same jurisdiction on airport property - including on the aircraft - as a city cop would have on the streets.)

Dao refused the officer's order.  So another officer boarded, and the two tried to persuade him.  He persisted in his refusal to comply with their order.  So a third officer boarded, and began to physically pull Dao from his seat.  That's when things turned ugly, and two passengers captured the ensuing events on camera, posting their videos on social media, where they went viral.

And that's when millions of people who get their "facts" from social media went apoplectic.

One account from one of the passengers who recorded the incident said that the officer "threw the passenger against the armrest."  The video does not show this.  What it clearly shows is that the officer forcibly pulled Dao from his seat while Dao resisted, and his face slammed into the armrest of the seat across the aisle.  There is no video evidence that the officer was intent on Dao's face hitting the armrest.  There is clear evidence that Dao did everything in his power to resist.

Either way, Dao's face was bloodied.  The officers dragged him from the plane, his face bloody and his glasses askew, because he would not leave of his own volition.  Several accounts claimed that he appeared unconscious.

Well, he sure woke up in a big hurry, because once he'd been removed from the aircraft and taken to the gate, he ran back down the jetway, reboarded the plane, and insisted that he had to get home.  So he had to be removed again, this time without injury.

Many social media comments have claimed that United had no right to remove passengers from a flight, some citing legal blogs in an effort to defend their claims, which are false.  Others criticize United for over-booking the flight to begin with, which again, we'll address later.  Still others criticize United for giving its employees a "free ride" when paying passengers have to give up their seats to accommodate that.  We'll address that as well.

Let me state for the record that I have never worked for an airline, but I fly a lot of miles every year.  I currently hold the highest frequent flyer status offered by Southwest Airlines, my carrier of choice. Last year I had enough Delta miles for my wife to fly first class with me round-trip on a business trip to Hawaii, and for both of us to fly first class back from Hawaii on a separate trip where we went there by cruise ship.  I spend a lot of time on planes, and dealing with the hassles that can come with flying.  I know the drill.

I am also not a lawyer, but I am very well-versed in contract law.  So much so that, on behalf of my employers, I have corrected contracts that were drawn up by lawyers.

With those disclaimers out of the way, these are the facts:

1. When you purchase an airplane ticket, you agree to the airline's Contract of Carriage.  Every airline has one.  This is a legally binding contract between the passenger and the airline.  You cannot complete a ticket purchase without agreeing to its terms.  Most passengers never bother to read it.  Well, I did read United's Contract of Carriage (CoC), and if you want the truth, get off Facebook, ignore the blogs, and read it for yourself.  It's public information, available on United's website.
2. With regard to United over-booking the flight (assuming it did) and offering compensation to volunteers at the gate, that is clearly provided for in its CoC.  Rule 25, "Denied Boarding Compensation," clearly lays out the procedures and compensation for denied boarding at the gate.  This has been erroneously cited as applying in Dao's case, but it does not, as he was not denied boarding.  He was in his seat, and was required to vacate it after boarding.
3. With regard to removing passengers from a flight, that right is vested in the airline by Rule 21, "Refusal of Transport," which states up front, "UA shall have the right to refuse to transport or shall have the right to remove from the aircraft at any point, any Passenger for the following reasons:"  The Rule then lists numerous reasons for which it can exercise that right, most of them having to do with misconduct.  Clearly, Dao and the other three passengers were not asked to leave the aircraft for reasons of misconduct.  However ...
4. One of the sections of Rule 21 is Section C: "Force Majeure and Other Unforeseeable Conditions."  The standard legal definition of a force majeure (French for "superior force") is an event beyond a contracting party's control, such as a major storm, a natural disaster, an act of war ... in other words, what is commonly called an "act of God."
5. Airlines invoke the force majeure clause on a regular basis.  Ever been stranded due to a storm?  I have, numerous times.  And in those instances, the airline doesn't even have the obligation to put you up in a hotel room if you're stuck overnight, because it's due to circumstances beyond its control.  It sucks, but it is what it is.  (They will, however, put you on the next flight that can get out, without an upcharge.)  The clause was invoked for all airlines operating in the U.S. immediately after 9/11, for obvious reasons.
6. Some commenters - and legal bloggers - have asserted that United's removal of Dao and the other three passengers does not meet the test of a force majeure.  On the face of it, they would appear to be correct.  However - we don't know why they needed to get the crew in question to Louisville to begin with.  Airlines do a pretty good job of scheduling crews, all things considered.  But sometimes, a storm in, say, Atlanta prevents a flight from leaving there en route to, say, Louisville.  If the Atlanta-to-Louisville crew was scheduled to man the next flight departing from Louisville, the airline might have to deploy a crew from, say, Chicago to man that flight.  Since the Atlanta storm was what necessitated deploying the crew from Chicago, the airline can invoke the force majeure clause.  That may have been the case here; we just don't know from the accounts that are out there.
7. Also, note that the title of Rule 21, Section C includes the words "and Other Unforeseeable Conditions."  That's sufficiently broad, in terms of contract law, to cover pretty much anything.  Maybe the crew originally scheduled to work the flight out of Louisville got sick.  Maybe they quit.  Maybe they were needed to work another flight because that flight's crew was unavailable for whatever reason.  All of those things would fall under the umbrella of "Other Unforeseeable Circumstances."  So the bottom line is that, one way or the other, United was well within its rights to bump those four passengers to make room for the four crew members.  They weren't on holiday.
8. Imagine you were one of the passengers booked on the flight out of Louisville.  Upon arrival at the gate, you learn that the entire flight was canceled, because no crew was available.  (I've experienced this as well - it happens.)  How would you feel if you learned that the reason your flight was canceled was that four passengers on a flight from Chicago to Louisville refused to allow themselves to be inconvenienced?  Or, imagine you're an airline official, faced with the decision whether to piss off a couple hundred passengers vs. pissing off four.  If you're good at your job, you'll pick the smaller number every time.
9. As noted above, the airport security officers have the same authority in the airport as city cops have on the streets.  If a cop on the street tells you, "Come with me," what do you think will happen if you say, "Sorry, I have to get to work - I'm a doctor, and I have patients to see"?  I'll tell you what's going to happen: you're going with the cop.  And if you force him to, he'll forcibly drag your arse to the station.
10. What determines priority when an airline decides whom to remove from a flight under these circumstances?  The factors include the fare class (some passengers pay more than others for the same ticket, for a variety of reasons), frequent flyer status, whether you're a parent flying with a small child, whether you've checked a bag, etc.  Maybe that seems unfair, but let's think about it.  If you paid $800 for a ticket in coach, and I paid only $300 for the seat next to yours, wouldn't you feel that you had more of a right to stay on the plane than me?  And if you were at the top tier of that airline's frequent flyer program - meaning you bring the airline a lot of money every year, vs. a guy like me who might only fly that airline when nothing else fits my schedule - wouldn't you likewise feel more entitled to your seat than me?  If you were traveling with your child, would you want the airline to pull you off the flight, leaving me - a single traveler - on board?  And if you'd checked a bag, taking the time to pull your bag off the plane would cause further delays for everyone else, so you'd be more likely to stay on the plane than someone like me who rarely checks a bag.  In other words, the airlines' rules for determining the priority of whom to bump are not "mean," they're perfectly sound business decisions.

Anytime there's an incident in the media - especially if said incident winds up going viral on social media, where everyone has an opinion, informed or otherwise - the blame game immediately ensues.  Unfortunately, knowledge of the facts is not a prerequisite to play the game.  So naturally, many people were quick to judge United, and place the blame on its shoulders.  Let's unpack that.

United was clearly within its legal rights, and had sound reasons for its actions.  It offered compensation to those it removed from the flight, even though the CoC does not obligate it to once everyone has refused to volunteer to take a later flight.

Airport security had the authority to order Dao off the plane, and when he refused a direct order from the authorities, they had every right to remove him.

Thus the blame first and foremost rests with Dao.  Secondary blame might rest with airport security.  Maybe they could have taken more care in removing him from his seat to protect him from smacking his face on the armrest.  However, he was physically resisting, and that can result in unfortunate consequences.

But I can find no fault with United here.  And I say that as someone who hates flying United so much, I'd rather walk barefoot from Chicago to Boston in the dead of winter than fly United.  I've been known to book Southwest flights that take me from Kansas City to Atlanta to Charlotte to D.C. rather than take a direct KC to D.C. flight on United.

Why?  Because their fare rules are overly complicated.  Their fees are excessive (Southwest doesn't charge checked bag fees for up to two bags).  I can chat up a Southwest flight attendant and get free drinks.  United's flight attendants are universally surly.  It flies three-hour routes on flying cigars with two seats on each side of the aisle, leaving me with sciatic nerve pain.  And they're rarely on time.

But I don't refuse to fly United because it might over-book a flight, or it might be faced with a force majeure that leaves me stranded overnight, or it might have to ask me to vacate my seat if I don't volunteer.  That's just part of flying, and it can happen on any airline.

A final note about over-booking, and this is where the pre-conceived bias against corporations comes into play:

Airlines do not exist for their passengers.  They exist for their shareholders.

The anti-corporation crowd will cry, "That's just wrong!  Those evil corporations!"

Well, if you have a 401(k), you're a corporate shareholder, even if only indirectly through mutual funds.  And you're pretty unhappy when your account is losing money.  So you should be glad the airline is about the shareholder, because chances are, you are one.

Airlines make the most money when flights are full.  But sometimes people (especially business travelers) change flights at the last minute to get home earlier.  (You would too if you spent 100+ days a year on the road, like I do.)  Or they have to take a later flight to accommodate a client meeting that ran long.  That leaves empty seats.

So the airlines over-book, based on mathematical formulas that consider the frequency of cancellations.  Inevitably, that sometimes results in having to ask for volunteers to take a later flight, if the number of cancellations is less than expected based on experience.  It's just the way it works.

Decry it if you will.  Rage against the corporate machine.  Go all Bernie Sanders and Elizabeth Warren and call for the end of all corporations.

But know this:  if every corporation in the world ceased to exist tomorrow, we'd all be dead in a fortnight (the snowflakes would die first, as their survival skills are likely the weakest).  Think of it - without corporations, many of us wouldn't have jobs.  We'd have to live off the land, in a thatch hut we built with our own two hands, Wearing fig leaves and walking barefoot, because we wouldn't have cars or be able to buy gas.  Our lives, and our livelihoods, are dependent upon corporations.

The ultimate irony of the anti-corporation crowd is this: their preferred forum for venting their rage is ... Facebook.

Guess what?  Facebook is a corporation.  Its stock is publicly traded.  It makes business decisions for its own profit, and for the benefit of its shareholders.  Its market capitalization ranks it as the fifth-largest public company in the U.S.  Bonus points if you're perusing Facebook on an Apple device; its market cap is #1.

How do I know this?  Simple: I'm a Facebook shareholder.  (Apple, too.)  And my investment in Facebook is up nearly 75% over the last year and a half or so.

So keep on ranting about how terrible United is for removing Dao from flight #3411.  Just do it on Facebook, preferably using your iPhone, because you're helping me retire more comfortably.

*******

Update: we have now learned that Dr. Dao had his license to practice medicine revoked in 2005 after being convicted of trading prescription drugs for gay sex.  He was also placed on corrective action by a hospital he previously worked for.  The reason?  Disruptive behavior.  He was referred for anger management treatment as part of the corrective action.