Airlines are increasingly facing flight delays caused by disruptive passengers with abusive and/or threatening behaviour.
The scale of the problem
IATA reports that in 2015 there were 10,854 incidents of disruptive passengers reported by airlines, 11% of which were reported to include physical aggression, and 40% of airlines had diverted a flight as a result of an unruly passenger.
These issues are often caused by passengers drinking too much, either before boarding, on the flight or both. Other causes can be stress caused by the anxiety of flying or even not being able to smoke for an extended period, or high profile individuals making excessive demands, as in the case of the Korean Air “nut rage” incident.
The daughter of the airline’s chairman forced the plane to taxi back to the JFK terminal to remove the crew member who had served her macadamia nuts in a bag instead of on a plate. Although her prison sentence was eventually suspended, she did spend several months behind bars.
The potential costs involved
If a flight needs to be diverted to land so that the disruptive passenger can be removed as quickly as possible – to ensure the safety of the other passengers and crew – the cost is very high. British Airways has told AD Aerospace that the average cost of an unscheduled landing is £40,000.
But the costs may not just stop there, with other losses such as penalties from the airport and the possibility that the resulting delay could leave the airline open to flight delay compensation claims of up to €600 per passenger under EU261/2004 from the other passengers.
This applies to flights departing from an EU airport (including airports in Iceland, Liechtenstein, Norway and Switzerland) and operated by any airline, or arriving at an EU airport and operated by an EU airline where the flight is delayed by three hours or more, provided that the delay is not caused by an extraordinary circumstance.
Claiming damages from disruptive passengers
The Tokyo Convention of 1963 governs criminal offences on board an aircraft that jeopardise safety. In 2014, the ICAO adopted the Montreal Protocol 2014, which strengthens the airline’s position with disruptive passengers by:
- Allowing the passenger to be prosecuted in any of the nation states where the operator is located, the destination of the flight and the nation state where the flight is diverted to, which will make it easy to prosecute once the passenger disembarks
- Clarifying what constitutes unruly behaviour by simply requiring reasonable grounds to believe that a serious offense has been committed
- Expressly recognising an airline's right to seek compensation for expenses caused by unruly behaviour
The protocol requires the ratification, acceptance, approval or accession of 22 nations to take effect. As of January 2017, there were 30 signatories and eight ratifications and accessions.
Should a successful prosecution take place to claim for damages from the disruptive passenger, any resulting judgment or order can then be enforced by the appropriate authorities in the defendant’s country.
If the defendant is based in England or Wales, a High Court Enforcement Officer (HCEO) can enforce the judgment, even if it was awarded in another country in the following manner:
- EU judgments – can be enforced as if they are local judgments
- The Lugano Convention – this applies to enforcement between Norway, Iceland and Switzerland. The enforcing court has discretion about whether to allow enforcement under certain circumstances
- Bilateral agreements – the judgment needs to be final and for a specific sum, then it can be registered and enforced in England and Wales