On Sept. 7, 2005 the Department of Transportation issued a notice of proposed rulemaking to invite comments from the airline industry regarding an amendment to the Air Carrier Access Act of 1986. The amendment, if passed as proposed, will affect passengers with respiratory disabilities and their use of medical oxygen and portable respiration assistive devices onboard commercial airlines. The ACAA has already been amended once within the last year (to make the act applicable to foreign air carriers). Now, however, if the amendment passes as proposed, the airline industry (both foreign and domestic carriers) will be forced to take significant measures to comply with the new requirements.
The Department of Transportation’s reasoning behind the amendment is to relieve the difficulties of air travel for people who require a respiratory device (people suffering from emphysema, chronic bronchitis, asthma, sarcoidosis and other lung diseases) and assure them greater access to air travel. The law as it stands now does not require carriers to provide respiratory services on their aircraft. Passengers are also not allowed to bring their personal oxygen devices onboard.1
Against this regulatory backdrop, many major carriers do not provide respiratory services, which means people with respiratory disabilities are proscribed from flying with those carriers. The carriers that do provide services, do so at greatly varying cost to the passenger (anywhere between $0 and $1,500 per flight), at varying oxygen flow-rate capabilities and at varying requirements of notice of intent to use oxygen services (anywhere between 48 hours and one month).2 The proposed amendment attempts to regulate and standardize what passenger-owned devices are allowed onboard and what oxygen services are provided by the airlines (and all this at zero cost to the passenger).
The Department of Transportation has invited comments regarding the proposed amendment. The deadline for submission of those comments has been extended to Jan. 30, at which point the DOT will consider the comments and issue its final ruling.
Compliance: Actions Carriers Will Have to Take To Comply If Amendment Passes as Proposed
This amendment applies to carriers that conduct passenger-carrying service on at least five round trips per week on at least one route between two or more points according to its published flight schedules that specify the times and places between which those flights are performed. There are basically two new requirements for these carriers:
- They must conduct electromagnetic interference, or EMI, testing on devices and then allow those devices that pass the tests to be brought onboard by passengers; and
- They must provide oxygen service to passengers.
Upon request by manufacturers or users, carriers must conduct a one-time test for each model on each plane and during each phase of flight.
All U.S. carriers and all foreign carriers operating to and from the United States must conduct EMI testing on oxygen assistive devices (ventilators, respirators, continuous positive airway pressure [CPAP] machines, portable oxygen concentrators) before the devices can be allowed onboard. When a device manufacturer or a user of a device asks a carrier to allow the device onboard, the amendment will require the carrier to conduct the testing on each of its planes, during each phase of flight. If the device passes the EMI tests, then the carrier will have to allow that device onboard each plane on which it passed and allow its use for every phase of the flight it passed (e.g., takeoff, ascent, cruising altitude, descent and landing).
The framework for testing already exists for portable electronic devices. Therefore, U.S. carriers must first determine whether the devices are “portable electronic devices” as defined by existing regulations. Then, they must test the devices and determine whether they will interfere with the plane’s navigation or communication systems. Foreign carriers will have to comply with the EMI testing requirements from their respective governments.
Testing and evaluation of the devices must be completed 90 days from the date requested. Once testing is completed and the devices are approved, the carriers must permit the approved devices onboard within 30 days. This will allow a manufacturer or user to plan on being able to use (or not being able to use) the device within 120 days from the initial request.
What does this mean for the airlines?
- They will spend considerable time and expense in hiring and/or training personnel to comply with the new requirements;
- More employees or contractors must be trained and/or hired to conduct the tests;
- Carriers will have to bear the expense of the testing;
- Customer service representatives will have to be trained regarding the assistive devices and most likely equipped with a master list of approved devices;
- Customer service representatives will need to be able to inform prospective passengers which models are allowed and which are not, and what phases of the flight and on which planes the devices are approved;
- Customer service representatives will need to inform passengers of the availability of electric outlets for powering their devices and of the need for the passengers to give advance notice of intent to use the outlets;
- Flight attendants will need to be trained to recognize the approved devices and to assist with the devices when necessary;
- Carriers should keep backup batteries for the different approved models where outlets are not available; and
- Carriers must also allow passengers to stow extra equipment (e.g., extra canisters and battery packs) for long flights.
Providing Oxygen to Passengers
Carriers must provide oxygen to passengers who have a note from a doctor.
All carriers who operate at least one aircraft with a seating capacity over 60 passengers must provide oxygen assistive services on both their large and small aircraft (both over 60 passengers and under 60 passengers). As the law stands now, carriers are allowed to provide this service, but the amendment will make the service mandatory.
Carriers will have to provide oxygen in either a canister or from an oxygen concentrator with a sufficient flow-rate for any disability. Yet they will only need to provide it on the plane, not in the airport before or after flight or during layovers. Carriers will have six months from the date of the final rule on the amendment to provide the oxygen to passengers.
What does this mean for carriers?
- This means even more expense for carriers;
- Carriers that do not already own the devices will have to either purchase the devices new or perform hydrostatic testing on used devices;
- Flight attendants will have to be trained to operate the devices and check for doctors’ notes; and
- Customer service representatives will have to be trained to inform passengers of exactly what services are provided on which flights, of applicable notice requirements of the intent to use carrier-provided oxygen (48 hours), and of the necessity of a doctor’s note before services can be provided that specifies the quantity of oxygen per hour and maximum flow-rate corresponding to cabin pressure at altitude.
No Charge to Passengers
Oxygen provision is to be treated like any other disability-related service, meaning that the carrier cannot charge for accommodating the use of respiratory assistive devices. They cannot charge for the EMI testing, or for allowing passengers’ devices onboard, or for providing oxygen, or for maintenance of the devices, or for the devices being excess baggage. The only thing carriers may charge for is an additional seat if the equipment actually takes up another seat. The Department of Transportation purports to have conducted a cost/benefit analysis regarding the implementation of the proposed amendment and has concluded that it is cost-beneficial to both U.S. and foreign carriers.
What does this mean for carriers?
$$$$$ (Carriers must bear all the expense for the results of this amendment.)
Carrier Liability Issues and Hypotheticals
Liability Under Air Carrier /Access Act
Depending on where suit is brought, there may or may not be a private right of action under the Air Carrier Access Act. The federal circuit courts are split as to whether the ACAA creates a private right of action by which a plaintiff can sue a carrier in federal district court. The 5th Circuit and 8th Circuit have held that a private right of action does exist under the ACAA, but more recently the 10th and 11th Circuits have held that no private right of action exists.
These later cases have based their decision on a swing in the U.S. Supreme Court in how it construes legislation as creating a private right of action. Therefore, while this precedent exists, plaintiffs in the 5th and 8th Circuits may bring suit in federal district court under the ACAA, but plaintiffs in the 10th and 11th Circuits need to petition the Department of Transportation for review and then appeal to the federal circuit courts.
Liability Under the Warsaw Convention
One of the main avenues by which damages sustained during international flights are recoverable is the Warsaw Convention. Whether damages are recoverable under Warsaw turns on whether the event that caused the damages was an "accident." An "accident" is defined as an "unexpected or unusual event or happening that is external to the passenger" and not "the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft."
A recent U.S. Supreme Court case found an "accident" to have occurred where an asthmatic passenger requested to be moved away from the smoking section and the flight attendant refused.3 The passenger died and the airline was held liable. The attendant’s behavior was considered an "unexpected or unusual" event in light of the relevant industry standard and the carrier’s own company policy.
Following the same reasoning of the court, it is likely that the proposed amendment would make the failure to assist a passenger with oxygen constitute an "accident" within the contemplation of the Warsaw Convention. The proposed amendment will create new duties for carriers and carrier personnel so that behavior of carrier personnel may now constitute an "accident" when it did not before because now the behavior would be considered "unexpected or unusual."
For example, the U.S. Court of Appeals for the 4th Circuit held that an "accident" did not occur when a flight attendant supplied the respiratory-disabled passenger with what was deemed to be an empty oxygen canister.4 At the time of that decision, there was no statutorily created duty for the carrier to supply oxygen to passengers. Arguably, the proposed amendment’s creation of a duty for carriers to supply oxygen to passengers would make the failure to supply the oxygen an "unexpected or unusual event" and therefore recoverable under Warsaw.
Liability Understate Law Negligence Claims
The materials accompanying the proposed amendment to the Air Carrier Access Act specifically state that it does not preempt state law. The law of preemption is a quagmire, but similar acts have been held to not preempt state law tort claims.5 Therefore, it is important to examine situations that could arise that would allow a plaintiff to bring a state law negligence claim against a carrier.
Hypothetical ‘What If' Situations
Here are just a few examples of possible situations that could lead to carrier liability for negligence in the context of onboard medical oxygen:
Outlets unavailable. What if a passenger follows the airline’s requirements for advance notice of intent to use the plane’s outlets as a power supply (or backup supply) for her approved oxygen device, yet the carrier must switch the aircraft at the last moment? The new aircraft does not contain the necessary outlets. The problem could be realized before the flight disembarks, at which time the passenger would not be able to take the flight. Or worse, the problem may not be realized until after the flight disembarks, and then serious health consequences to the passenger could occur. Under either situation, the carrier could be deemed negligent because it did not act as a reasonable carrier under the circumstances by not providing the necessary power source for the oxygen device.
Battery failure. What if a passenger brings onboard his own approved device and his batteries run out? The proposed amendment’s accompanying material states that the carrier should keep reserve batteries for each model that is brought onboard just in case such a contingency occurs. Therefore, a carrier that does not keep reserve batteries for a passenger’s respiratory device could be deemed negligent because it did not act as a reasonable carrier under the circumstances.
Batteries fail while passenger is sleeping. What if a passenger’s respiratory device runs out of batteries while the passenger is asleep? The passenger could stop breathing and never wake up. Flight attendants may not even be aware a problem existed until the plane lands and the passenger is found dead. Although this may be a difficult case for a plaintiff to make, it is possible that a carrier could be deemed negligent for its failure to recognize the problem and take action, or for not having some system in place that alerts the carrier that a respiratory device has failed.
Failure to provide devices or providing defective devices . What if a carrier does not provide the proper device (or any device) requested by a passenger (e.g., the device does not provide the correct flow-rate, or it fails or malfunctions)? The proposed amendment requires the carrier to provide the requested oxygen assistance. Failure to do so could be deemed negligent because the carrier did not act as a reasonable carrier under the circumstances and provide the necessary care.
Lack of customer service training on devices . What if a customer service agent informs a passenger that the passenger’s device is allowed on the plane, but when the passenger tries to board the plane, the device has actually not passed the EMI testing and is not allowed onboard? The passenger would not be able to take the flight and damages could result because the carrier did not behave as a reasonable carrier under the circumstances by properly notifying the passenger whether the device was allowed.
What if a customer service agent informs a passenger that oxygen service will be available on a flight and it is not available? The problem could be discovered before the passenger boards, at which point the passenger would not be able to take his flight. Or worse, the problem may not be discovered until the flight has departed and serious health consequences to the passenger could occur. In either case, the carrier could be deemed negligent for not acting as a reasonably prudent carrier under the circumstances by not properly informing the passenger what was provided (or for not noticing the problem before allowing the flight to depart).
Lack of flight attendant training on devices . What if a flight attendant does not properly operate a device (whether provided by the carrier or the passenger) and a passenger is injured or dies? The proposed amendment requires the carrier to provide the oxygen and, arguably, to assist with allowed passengers’ devices. Therefore, a carrier could be deemed negligent for failing to operate a device in such a way as to be effective in meeting its duty of care.
Failure to maintain provided devices . What if a carrier provides a device to a passenger upon request, yet the device emits contaminated, impure oxygen because it was not properly maintained? What if the provided device has corroded or become otherwise damaged and it malfunctions or explodes? The carrier could be deemed negligent for not acting as a reasonably prudent carrier under the circumstances by not properly maintaining the respiratory devices.
Improperly stored provided devices . What if the carrier does not properly store its oxygen devices during flight and they ignite or explode like some did on ValuJet flight 592 in 1996?6 The carrier could be deemed negligent since it is the carrier that has the duty to keep the oxygen onboard. Therefore, it would have the duty to safely stow the devices.
Improper testing . What if a passenger brings an allowed device onboard after the carrier has performed the EMI testing, yet the device does interfere with the plane’s navigation or communication systems? Mistakes and miscommunications resulting in a crash or a midair collision could occur. The carrier is required to test the devices before allowing them and could be deemed negligent for not properly performing the testing.
Delay in implementing new procedures . What if a carrier follows the timeline proposed by the amendment for either testing and allowing passengers’ devices onboard or for providing devices for passengers, but the carrier could have reasonably provided the service to passengers at an earlier date than required, and as a result a passenger sustains injuries or dies in the meantime because of a lack of available respiratory devices? Merely following minimum standards of the amendment does not absolve a carrier from complying with state tort law. Therefore, apart from any timeline supplied in the amendment, a carrier could still possibly be held liable for not supplying the oxygen within a reasonable time (especially if other carriers begin providing the services within less time than is required by statute).7
Codeshare partner noncompliance . What if a carrier books a flight for a passenger but a codeshare partner carriers the passenger on at least one leg of the flight? Then, what if the codeshare partner fails to supply the necessary oxygen the booking carrier promised the passenger? It may be held that the booking carrier had a duty to make sure the passenger’s request to be supplied with oxygen was fulfilled, whether on its own plane or not. Conversely, the codeshare partner may be held liable for not providing the oxygen even if it was never given notice by the booking carrier of the request to supply. The codeshare partner may need to make sure that all its passengers are supplied with oxygen if they need it.
Failure to protect trade secrets of device manufacturers while testing . What if a manufacturer requests a carrier to conduct the EMI testing on a new model, but while the carrier has control of the model, some trade secrets regarding the design of the model escape into the hands of the manufacturer’s competitors? Carriers may have a duty to protect the trade secrets of the manufacturers whose products are under their control. A carrier may be held liable for leaks of trade secrets.
The state law negligence discussion above is also applicable to claims involving international flights that are governed by the Montreal Convention. The Montreal Convention has a two-tier liability structure: strict liability for personal injury damages up to 100,000 SDR8, and damages can be recovered beyond 100,000 SDR if negligence of the carrier can be shown. Therefore, negligence is the standard by which a plaintiff can recover more than 100,000 SDR.
1 There is an exception for two models of portable oxygen concentrators that, as of July 12, 2005, carriers are now allowed, but not required, to permit passengers to carry onboard: the Air Sep Lifestyle and the Inogen One.
2 These figures are from a 1997 study published in CHEST, the Cadiopulmonary and Critical Care Journal.
3 Olympic Airways v. Husain, 540 U.S. 644 (2004).
4 Hipolito v. Northwest Airlines Inc., 15 Fed.Appx. 109 (4th Cir. 2001) (not selected for publication).
5 See Stone v. Frontier Airlines Inc., 256 F. Supp. 2d 28 (D. Mass. 2002) (holding the Airline Deregulation Act did not preempt state law tort claims).
6 ValuJet Flight 592 crashed May 11, 1996, after oxygen generators held in the cargo bay ignited, causing a fire and killing everyone onboard. However, in that case, it was the aviation repair station, whose employees loaded the oxygen generators, that was found liable.
7 A 2002 case held that, because of industry practice and the news media, an airline was aware of the need to have defibrillators onboard planes, and although the airline was complying with statutory minimum standards, it could still be held negligent under state tort law.
8 Standard Drawing Rights.