Like many people, I have watched with somewhat sad feelings the giant mess that has been United Airlines and Dr Dao’s removal in Chicago recently.

Rather than just throw more rocks at the poor folks at United I would like to comment on the issue in a dispassionate way, look at some of the underlying causes and perhaps find a way to address these in a positive manner.

For perspective, I have been in the industry for many years, occasionally working for an actual airline or two. But in my group’s consulting practice and software businesses I have to deal with the operational sides of what the airline does, from an IT perspective.

This unfortunate issue could have occurred on a regular or a storm related day. The occasion should not matter – so in my view there were few to none mitigating circumstances.

Full time

With current global load factors in the 80%+ range, airlines are operating on very tight margins and must accept the consequences of when things go wrong.

Load factor is gauged on actual fare paying passengers. In the United case, the aircraft in question was an EMJ-170, a 72 seat aircraft. Thus four passengers (the deadheading flight attendant crew) coming on at the last moment was a 6% differential. My point is that if you assume that number on average then published load factors under-report how full a plane might be.

System error

I have to say that those who try to defend United are wrong for multiple reasons. Here is an example from “The Street”

This assessment and others was not taking into consideration the failings of an already flawed system.

But that doesn’t excuse the behavior nor will it let United off the hook.

Why? Allow me to explain.

Airlines (who are my customers as I am theirs) have for years (particularly in the US where regulation is a mishmash of contradictory and overly complex points) hidden behind the assumption that, for safety reasons, they are all-powerful and passengers must comply with anything the airline says.

A careful read of the FAA regulations (not something I recommend particularly) reveals the following FAA document.

This would illuminate the issues regarding the now infamous Rule 35 removal.

The term “belligerent” that has been used – including in United’s CEO’s pronouncements is quite specific –  the only reason a passenger can be removed, according to these FAA rules, is if they are being belligerent.

Interestingly when challenged on television, Munoz stated that no fare paying passenger would ever be removed from an United flight. He has set himself up for failure. He should have added that this is subject to clear security concerns.

What has happened here is a mainstream exposure of just one of the many issues in the airline industry that are not good for passengers. Specifically, airline relationships known as codeshares.

Cracking the code

This is the arrangement whereby one airline allows another airline to use the same codes. For clarification there really are two forms of codeshare arrangements. One where there are two operating brands – for example Lufthansa and United – the other where one airline (such as United) contracts out some of its flying to a smaller carrier for economic reasons (in this case, Republic).

These two types of codeshare should not be lumped together but they are.

Allow me to get specific.

It could be argued that United was not legally responsible for the fracas that happened – details to come. The management of United could have hidden behind their legal position, but not owning up to that could actually be worse than admitting that something wrong happened.

Why? Because it would expose the dirty secret that codeshares are not the same as the service offered by the airline selling your ticket.

The regulators have tried for years to address this problem and in the face of the complexity have demurred. Perhaps now it should be dealt with it.

In regular business, the person who sells you the product is on the hook for the product liability. That is business and contract law 101. Airlines in codeshares skirt that issue. For the passenger it should make no difference. But legally it does.

For the consumer –  if it looks like a duck (its painted in the parent carrier’s livery) walks like a duck (operates on routes that are on a parent carrier’s flight number) and quacks like a duck (the flight attendants and pilots speak and wear the same uniforms like they are from the parent airline) then it is a duck.

Paper trails

The binding document that governs what happens to us passengers is contained in the Conditions of Carriage (CoC). This is something that we all agree to and it has a legal disclaimer in all cases. But airlines are not great in disclosing the legal terms.

For example, there are two contracts relevant to website bookings. One for the website use and sales conditions (whether direct or indirect via a travel agency) – the other is for the conditions on which you as a passenger agreed to fly, the CoC.

United, just to make things even more complicated, has another agreement for online sales.

I would defy even the most arcane lawyer to figure some of this stuff out.

Here are the relevant documents that are supposed to explain this all to you in legalese. For reference I am including both the United ones and the CoC for the actual operating airline who was responsible for the flight: look at the section marked codeshare

United Airlines legal agreement for US passenger traffic (look at the section marked codeshare)
United terms and conditions
United Conditions of Carriage
United list of code share commuter carriers
Republic Conditions of Carriage: (check out Rule 35)

In this case, in my view legally, United is off the hook because it was a Republic-operated flight.

My assessment (and I am not a lawyer) is that United did do something wrong – failing to adequately disclose that formally, it was Republic’s conditions of carriage that would have superseded its own. For this transgression it is likely to get fined.

I note this because United doesn’t list Republic as one of the carriers whose conditions might supersede United’s, at least not in the formal legal disclosure part. It does list a predecessor airline but DoT will find that a transgression.

Full disclosure is required even if it’s buried.

United is not the only airline which does this and, if nothing else, all airlines’ CoC should be monitored. Failing to keep it up to date should be regarded as a legal failure and subject to a regulatory disciplinary action.

Lawyers will have a field day with this as they can now bring a case against both United and Republic (in addition to the other parties involved in this case).

Captain speaking

The only person who could legally authorise the removal of the passenger was the captain. There are a lot of things that went wrong here. But we know that safety is not supposed to be compromised  –  in the air but also on the ground. When the aircraft is active and the pilot has to be on board he or she has the responsibility. That is a cast iron rule.

United and Republic both failed to consider the safety of the passenger in question. We have not heard anything from Republic on its responsibility in this matter. Dr Dao had a legal right to be there. United and Republic only had the right to remove him if he failed to meet certain conditions. Those conditions didn’t seem to have occurred here – something that everyone seems to agree on.

Next steps

Rather than say United and other airlines are all bad – let’s look for things that should be fixed and reasonably so. Here is a partial list of actions that FAA, United and other airlines should undertake for the future.

1.    Each airline should have a clear line or responsibility for the actions on the plane. If the aircraft is painted in United colours, if the aircraft is under contract to United then the responsibility should be 100% United. No exceptions.

2.    There should be a clear differentiation in the codeshare world as I noted in the introduction. There needs to be a distinction for contract (typically commuter) carrier flights versus a major partner branded flight such as a United flight operated by Lufthansa. When this is a contract relationship such as the Republic case –  the parent selling carrier must accept full responsibility for the actions of its staff – any disclaimer for commuter flights should not be allowed.

3.    All airlines should have a new policy that permits the correct authority to compensate up to the legal domestic $1350 cash not the current authorized $800 (in credit NOT cash) that the many airlines operate under today.  That authority should be delegated to the gate agent or an instantly available supervisor. I note that in the wake of this incident Delta modified its policy and raised the amount. Just don’t think they did so without throwing in some extra conditions!

4.    Once the aircraft is loaded passengers should have a clear right to know what can happen. Paying passengers should never be offboarded. (I will make some exceptions which is airline non-essential personnel or any standby passenger) except for legitimate security concerns.

5.    Offboarding should be regarded as an FAA transgression for which the airline should be fined. Note that this is different from overbooking (actually more accurately overselling) where the problem occurs before the flight is fully boarded.

6.    All airlines should improve the operations implementation that could have prevented this from happening in the first place by having the four flight attendants go to where they had to go by car or other means.

7. The  captain must personally come out of the cockpit and deal with the issue, as he is legally required to do so. It does not appear that he did so in this case. Either way either the clear policy needs to be available and the decision maker should be the captain.

8.    Airlines do have differing policies on removing people from aircraft. This should be standardized. That is a matter of safety and consumer protection as well as common sense for the airlines.

9.    United’s PR department and those who recommended that the CEO’s correct response was to defend the employees first should rethink their crisis communications. This was clearly mismanaged.

10.    United’s response to these incidents needs to be documented and an immediate response to the situation be clear but accept the customer is right as a principle.

Passengers, right

One lesson learned from this whole episode for passengers; read the documentation and know your rights. Know what clicking that little box online actually means to your rights when flying.

One lawyer I know recommends a few simple rules.

1.    Don’t antagonize the airline staff. Whether they are right or wrong – they don’t necessarily know what is right but they will act as if they do

2.    Be clear and calm when dealing with an airline representative. The entire process leading up to boarding an aircraft can be stressful. Try and avoid becoming too agitated.

3.    If the airline insists that you deboard or denies you boarding in the first place– ask for the formal rules that require you to not get to your destination as you assume you contracted. In Europe there are specific requirements which are much clearer.

Earlier this week the DoT updated its “Got Flights? Know your rights” page.