Abstract
The passenger and the consignor and consignee of air freight are the central figures in the air transport equation. Of these, due to the human factor, the passenger attracts more attention. The most vulnerable in air transport is the disabled passenger who does not get attention in the overall global regulatory framework. In November 2008, the Federal Court of Appeal of Canada handed down its decision against Air Canada that it and other carriers do not have the right to charge disabled or obese people for an extra ticket when they need an additional seat or an attendant to accompany them. The Court refused to hear an appeal from the airline, and rejected a Canadian Transportation Agency ruling that the applicant had to satisfy the Agency both that she was disabled by reason of her obesity and that she had encountered an undue obstacle in air travel. The majority of the three-member panel dismissed the application on the preliminary ground that the applicant did not satisfy the first condition. This ruling, although seemingly isolated, brings to bear the need to revisit the subject of the rights of a disabled passenger in the context of global principles as well as regional and national laws with a view to harmonizing them, primarily by incorporating global principles in national legislation. This article discusses global principles as well as regulations applicable in Europe and the United States and inquires as to how domestic jurisdictions should be guided in interpreting global rules within their internal rules and procedures.
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Notes
- 1.
The UN estimates that there are 500 million persons with disabilities in the world today. This number is increasing every year due to factors such as war and destruction, unhealthy living conditions, or the absence of knowledge about disability, its causes, prevention and treatment. The majority of persons with disabilities live in less developed countries where people lack access to essential services such as health care. Moreover, there exists a clear relationship between poverty and disability. The risk of impairment is greater for a family that lives in poverty, while and at the same time, a disabled family member places higher demands on the family’s resources. See http://www.hrea.org/index.php?doc_id=416.
- 2.
Annex 9 to the Convention on International Civil Aviation, 12th Edition: 2005, Recommended Practice 8.22.
- 3.
http://www.aarogya.com/support-groups/disability/the-un-definition-of-disability.html. However, according to activists in the disability movement, the World Health Organization has confused between the terms ‘disability’ and ‘impairment’. They maintain that impairment refers to physical or cognitive limitations that an individual may have, such as the inability to walk or speak. In contrast, disability refers to socially imposed restrictions, that is, the system of social constraints that are imposed on those with impairments by the discriminatory practices of society. Thus, the Union of the Physically Impaired Against Segregation has defined impairment and disability as: an ‘impairment is lacking part of or all of a limb, or having a defective limb, organ or mechanism of the body’. ‘disability is the disadvantage or restriction of activity caused by contemporary organizations which take no or little account of people who have physical impairments and thus excludes them from the mainstream of social activities’. According to the United Nations Standard Rules on the Equalization of Opportunities for Persons with disabilities, the term “ disability ” summarizes a great number of different functional limitations occurring in any population, in any country of the world. People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature.
- 4.
an aircraft is considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation; in the case of a forced landing, the flight is deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board. See Convention on the Suppression of Unlawful Interference Relating to International Civil Aviation, done at Beijing on 10 September 2010. This document could be accessed at http://www.icao.int/icao/en/leb/treaty.htm.
- 5.
Regulation (EC) No. 1107/2006 of the Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air. Article. 2.
- 6.
See State Letter EC 6/18 - 87/38 dated 6 April 1987.
- 7.
The Standards and Recommended Practices on Facilitation inevitably take two forms: first a “negative” form, e.g. that States shall not impose more than certain maximum requirements in the way of paperwork, restrictions of freedom of movement, etc., and second a “positive” form, e.g. that States shall provide certain minimum facilities for passenger convenience, for traffic which is merely passing through, etc. Whenever a question arises under a “negative” provision, it is assumed that States will, wherever possible, relax their requirements below the maximum set forth in the Standards and Recommended Practices. Wherever there is a “positive” provision, it is assumed that States will, wherever possible, furnish more than the minimum set forth in the Standards and Recommended Practices.
- 8.
Annex 9, supra, note 2 in this chapter, at 8.27.
- 9.
Recommended Practice 8.23.
- 10.
Recommended Practice 8.25. See IATA’s view on end to end travel at text pertaining to note 14 infra in this chapter.
- 11.
Supra, note 4 in this chapter. See http://europa.eu/legislation_summaries/transport/air_transport/l24132_en.htm.
- 12.
Recommended Practice 8.26.
- 13.
Recommended Practice 8.38.
- 14.
An obese person has been medically defined as being well above ones normal weight. A person has traditionally been considered to be obese if they are more than 20% over their ideal weight. That ideal weight must take into account the person’s height, age, sex, and build. Obesity has been more precisely defined by the National Institutes of Health (the NIH) as a Body Mass Index (BMI) of 30 and above. (A BMI of 30 is about 30 pounds overweight.) The BMI (body mass index), a key index for relating body weight to height, is a person’s weight in kilograms (kg) divided by their height in meters (m)squared. Since the BMI describes the body weight relative to height, it correlates strongly (in adults) with the total body fat content. Some very muscular people may have a high BMI without undue health.
See http://www.medterms.com/script/main/art.asp?articlekey=11760.
- 15.
The Programme comprises a range of projects to improve the travel experience and help reduce unnecessary operational costs to the industry. One of the primary delivery channels is self-service options for passengers where it makes sense. In process areas controlled by government authorities, such as Security, Immigration and Customs, Passenger Experience will improve the facilitation of these processes by harmonizing passenger data requirements and enhancing passenger preparedness to reduce queues and process times.
- 16.
- 17.
McKay-Panos v. Air Canada [2006] F.C.J. No. 28 2006 FCA 8 Docket A-100-03.
- 18.
- 19.
On boarding the aircraft in Calgary on August 21, the applicant discovered that the bulkhead seats were actually smaller than the other seats because the tray tables folded into the arm rests rather than the forward chair as they did in other seats. The applicant found that she could barely force herself into her seat. The passenger beside her could not access his tray table because her hips spread onto his arm rest. The flight attendants bumped into her with their serving carts.
- 20.
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703.
- 21.
Id. 723.
- 22.
UNGA/RES/31/123 dated 16 December 1976.
- 23.
The Convention on the Rights of Persons with Disabilities and its Optional Protocol are serviced by a joint Secretariat, consisting of staff of both the United Nations Department of Economic and Social Affairs (DESA), based in New York, and the Office of the High Commissioner for Human Rights (OHCHR) in Geneva.
- 24.
- 25.
Article 3.
- 26.
Article 4 provides that “States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability”.
- 27.
Salomon v. Commissioners of Customs and Excise [1967] 2 QB 116, CA at 141 per Lord Denning M.R.
- 28.
[1931] AC 126 at 147 per Lord Tomlin. See also Barras v. Aberdeen Steam Trawling Co. Ltd. [1933] AC 402; Burns Philp & Co. Ltd. v. Nelson and Robertson Proprietaries Ltd. (1957–58) 98 CLR 495, HC of A.
- 29.
Salomon v. Commissioners of Customs and Excise supra, note 1 in the chapter “Anomalies in Airline Economics”.
- 30.
Brownlie (1990) at 49.
- 31.
[1997] 1 All E.R. 193.
- 32.
Id. At 202.
- 33.
Semco Salvage v. Lancer Navigation, [1997] 1 All. E.R. 502 at 512.
- 34.
Supra, note 28 in this chapter.
- 35.
See Shaw (2003) at 142.
- 36.
Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air Text with EEA relevance.Official Journal L 204, 26/07/2006 P. 0001–0009.
- 37.
Id. Article 1.
- 38.
Treaty establishing the European Community. Air transport in the European Community is fundamentally regulated by two treaties, i.e. the Treaty which establishes the European Coal and Steel Community (ECSC Treaty) and the Treaty which establishes the European Economic Community (EEC Treaty, now called the EC Treaty). The former, which was signed in Paris in 1951, addresses issues related to the carriage of coal and steel through the media of rail, road and inland waterways and as such is not directly relevant to aviation. The latter, on the other hand, admits of issues relating to all modes of transport in the carriage of persons and goods and is of some relevance to aviation.
The EEC Treaty, which was signed in Rome on 25 March 1957, has at its core a Common Transport Policy (CTP) concept which is calculated to achieve the fundamental purposes of the European Community. One of the most salient features of the EEC Treaty is that the tasks of the Community are set out succinctly in Article 2 of the Treaty which provides inter alia for the adoption of a CTP as provided for in Article 3(1) of the Treaty. This provision is linked to Article 74 which in turn provides that the objectives of the Treaty in relation to issues of transportation would be pursued by State Parties within the parameters of the CTP, which is established by the Council of Europe through secondary legislation.
- 39.
Supra, note 36, Article 3.
- 40.
Article 8 places responsibility on a managing body of an airport in which a person with disabilities is, to provide certain assistance with regard to: communicating their arrival at an airport and their request for assistance at the designated points inside and outside terminal buildings; moving from a designated point to the check-in counter; check-in and register baggage; proceeding from the check-in counter to the aircraft, with completion of emigration, customs and security procedures; boarding the aircraft, with the provision of lifts, wheelchairs or other assistance needed, as appropriate; proceeding from the aircraft door to their seats, storing and retrieving baggage on the aircraft; proceed from their seats to the aircraft door; disembarking from the aircraft, with the provision of lifts, wheelchairs or other assistance needed, as appropriate; proceeding from the aircraft to the baggage hall and retrieve baggage, with completion of immigration and customs procedures; proceeding from the baggage hall to a designated point; reaching connecting flights when in transit, with assistance on the air and land sides and within and between terminals as needed; and move to the toilet facilities if required. Where a person with a disability or person with reduced mobility is assisted by an accompanying person, this person must, if requested, be allowed to provide the necessary assistance in the airport and with embarking and disembarking. Ground handling of all necessary mobility equipment, including equipment such as electric wheelchairs subject to advance warning of 48 h and to possible limitations of space on board the aircraft, and subject to the application of relevant legislation concerning dangerous goods. Temporary replacement of damaged or lost mobility equipment, albeit not necessarily on a like‐for‐like basis. Ground handling of recognized assistance dogs, when relevant. The airport must also provide communication of information needed to take flights in accessible formats.
- 41.
Code of Good Conduct in Ground Handling for Persons with Reduced Mobility.
- 42.
The service must be delivered in a harmonised, transparent, non-discriminatory way and must be subject to audits and reviews in accordance with the European Ground Handling Directive. It must improve levels of customer service and safety to PRMs, through a seamless service from quality supplier/s, implemented with quality staff, equipment and a quality organisational structure, operating to meet and exceed prescribed customer service and safety standards.
- 43.
49 U.S.C. 41705. Congress enacted the Air Carrier Access Act (ACAA) in 1986. The statute prohibits discrimination in airline service on the basis of disability.
- 44.
§ 382.7.
- 45.
§ 382.65 stipulates inter alia that each carrier providing scheduled service shall establish and implement a complaint resolution mechanism, including designating one or more complaints resolution official(s) (CRO) to be available at each airport which the carrier serves. The carrier is required to make a CRO available to any person who complains of alleged violations of this part during all times the carrier is operating at the airport. Furthermore, this provision, inter alia, provides that carriers are required to categorize disability-related complaints that they receive according to the type of disability and nature of complaint. Data concerning a passenger’s disability must be recorded separately in the following areas: vision impaired, hearing impaired, vision and hearing impaired, mentally impaired, communicable disease, allergies (e.g., food allergies, chemical sensitivity), paraplegic, quadriplegic, other wheelchair, oxygen, stretcher, other assistive device (cane, respirator, etc.), and other disability. Data concerning the alleged discrimination or service problem related to the disability must be separately recorded in the following areas: refusal to board, refusal to board without an attendant, security issues concerning disability, aircraft not accessible, airport not accessible, advance notice dispute, seating accommodation, failure to provide adequate or timely assistance, damage to assistive device, storage and delay of assistive device, service animal problem, unsatisfactory information, and other.
- 46.
§ 382.31.
- 47.
§ 382.49.
- 48.
A flight means a continuous journey of a passenger in the same aircraft or using the same flight number. The rule provides several examples of what constitutes a “flight” and what does not.
- 49.
Abeyratne (1995), pp. 52–59.
- 50.
No. 10-3550-cv (2d Cir. Dec. 1, 2011).
- 51.
O’Keefe (2006), pp. 408–421.
- 52.
Chicago Convention, supra, Article 44 d). All ICAO’s aims and objectives as contained in Article 44 addresses the primeval importance of the air transport product and the need to ensure that it serves the passenger and cargo consignor well.
- 53.
Supra, note 1 in this chapter.
References
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Brownlie I (1990) Principles of public international law, 4th edn. Oxford University Press, Oxford, p 49
O’Keefe C (2006) Air travel for the disabled: isn’t it time for a harmonized approach? Air Space Law XXXI/6:408–421
Shaw MN (2003) International law, 9th edn. Cambridge University Press, Cambridge, p 142
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Abeyratne, R. (2012). Rights of the Disabled Passenger. In: Aeronomics and Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-28945-3_6
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