The Common Carrier Conundrum

     At this point, everyone in the known universe (i.e., Mount Sinai, NY and its immediate environs) has heard more than he cares to know about the April 9 foofaurauw over United Airlines’ forcible deplaning of a passenger. The airline definitely mishandled the matter not once but twice: first in the method used to remove David Dao from the airliner; second in attempting to improve its public-relations position by publicizing unpleasant facts about Dao’s past and his behavior during the incident. So the airline has a self-inflicted black eye from the event that’s unlikely to heal quickly.

     Yet even with all of that, I have some sympathy for UA. It’s a common carrier, as are all airlines that fly out of federally controlled airports, and the law treats such organizations as a lower species of creature:

     A common carrier in common law countries (corresponding to a public carrier in civil law systems, usually called simply a carrier) is a person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport. A common carrier offers its services to the general public under license or authority provided by a regulatory body. The regulatory body has usually been granted "ministerial authority" by the legislation that created it. The regulatory body may create, interpret, and enforce its regulations upon the common carrier (subject to judicial review) with independence and finality, as long as it acts within the bounds of the enabling legislation. [Wikipedia]

     Under the law, a common carrier is obligated to provide its services more or less automatically to anyone who requests them. There are exceptions, of course, but they’re dictated by federal law: e.g., a common carrier must follow the law about who may bring a weapon with him. Anyone not a member of a legally exempted category must be serviced upon request.

     Add that to UA’s obligation under its union contracts to return employees displaced in the course of their duties to their home bases. Suddenly, UA is caught between two fires. Even though it was contractually and legally in the right in selecting a random passenger to be removed, the implied denial of service puts the airline in obligation to that passenger for any losses he incurs for having been removed – and as you can see from the available videos of the incident, David Dao was both vociferous about his losses-to-be and determined to incur a couple of new ones.

     Once again, there are exceptions to the carrier’s liability for such losses:

     Common carriers are subject to special laws and regulations that differ depending on the means of transport used, e.g. sea carriers are often governed by quite different rules from road carriers or railway carriers. In common law jurisdictions as well as under international law, a common carrier is absolutely liable for goods carried by it, with four exceptions:

• An act of nature
• An act of the public enemies
• Fault or fraud by the shipper
• An inherent defect in the goods

     It is unlikely that any of those exceptions will be found to apply to the UA / David Dao case.

     Yes, the airline handled the matter badly. It could have continued to escalate its offer of compensation until cupidity persuaded some passenger to accept. It certainly didn’t need to smear David Dao, though the temptation, given Dao’s determination to make a fight of it, was surely strong. Yet I have some sympathy for any organization that, when caught between Scylla and Charybdis, loses its way. Under such inflexible conditions, with the harsh light of publicity shining upon it, to blunder into either the monster’s jaws or the whirlpool’s maw is easier than the uninvolved might imagine.