rpoint of Law.J Kent S. Jackson
Serving Up Liability
Providing alcohol to passengers is riskier than you think
EARLIER THIS YEAR ON A RED-EYE FLIGHT FROM CHINA, I HAD THE
pleasure of sitting next to a highly intoxicated and unusually
talkative German. As the sun rose and breakfast was served, the
flight atteridant cheerfully passed him another Guinness. He was
happy. She was happy. I was not. Was the FAA?
The airlines, along with Part 135 charter outfits and Part 91
operators, are subject to stringent Federal Aviation Regulations
on boarding intoxicated passengers and serving alcohol during a
flight. Operators and crewmembers that violate the regulations
face FAA certificate action. According to Part 91.17- Alcohol
"Except in an emergency, no pilot of a civil aircraft may allow
a person who appears to be intoxicated ... to be carried in that
The regulation places a single judgment call with the pilot
in command (PIC) - does the passenger appear intoxicated?
It does not let the PIC decide whether the safety of the flight is
compromised by carrying a visibly intoxicated passenger.
A pilot discovered this after flying friends home from a $100
hamburger lunch that included, he maintained, "no more than
four" alcoholic drinks each. Even though his long acquaintance
with those passengers made him confident they would be no
threat to the flight's safety, his position did not persuade the
NTSB, which affirmed a decision by the FAA- which had been
alerted of the activity by witnesses- to suspend his private pilot
certificate for 60 days. In addition, the Board also agreed with
the FAA that by his action the pilot had behaved in a "careless or
reckless" manner in violation of Part 91.13.
Part 135 charter operators have requirements in addition
to being prohibited from boarding intoxicated passengers.
On charter flights, all alcoholic beverages must be served by
the certificate holder, and the certificate holder must "cut off"
passengers who become visibly intoxicated.
60 Business & Commercial Aviation I January 2014
The regulation does not prevent passengers from bringing
their own alcohol aboard, but it does require that the certificate
holder dispense it. This is intended to give the charter operator
complete control over passenger alcohol consumption. Through
legal interpretation, the FAA stated that the certificate holder
may provide a non-required crewmember (flight attendant)
to serve alcoholic beverages. On flights without a cabin crew-
member, operators and pilots must decide how they will
dispense these beverages. A passenger briefing concerning
alcohol consumption, such as "help yourself!" does not fulfill the
requirements of Part 135.121 Alcoholic Beverages.
In addition to FAA enforcement actions, pilots and charter
operators expose themselves to tort liability based in negligence
for violating the F ARs. If a passenger or crewmember is injured
by another intoxicated passenger or the intoxicated passenger
causes or contributes to an aircraft accident, charter operators
and pilots can expect a lawsuit. A civil damage judgment may
be awarded in addition to the assessment of an FAA fine or
certificate action. This is not a constitutional double jeopardy
violation, because double jeopardy does not apply to civil
The lawsuits, or alleged lawsuits, run the gamut from
"passenger sues airline for making him so drunk he beat up
his wife" to a tragic Part 135 floatplane accident that received
significant media attention last spring. In that latter accident,
investigators believe that the fatal crash was caused by a drunk
passenger kicking the pilot's seat forward, which slammed the
pilot into the control panel and caused an unrecoverable dive.
News reports stated that the passengers' families filed lawsuits
against the deceased pilot's estate and the aircraft operator,
claiming that the operator failed to ensure that the passengers
were not intoxicated when they boarded the aircraft.
In a civil case alleging wrongful death or monetary damages,
the cause of action arises under state law. In a case against an
airline from the 1980s, a New York state court found for a plaintiff
who was assaulted by an intoxicated passenger. The court held
that an FAR violation may give rise to a separate cause of action
because the regulations were intended to protect passengers
and crew from being injured by intoxicated travelers. Another
court noted that the standard of care is generally defined by
the violated FAR provision. For example, it would be harder
for a plaintiff to show that a pilot or op~rator was negligent
in boarding a passenger who was drunk but did not appear
intoxicated because the FARs state that a pilot or operator may
not board visibly intoxicated passengers.
Business aircraft and charter passengers pay handsomely for
their private flights, and they expect a high level of pampering
and comfort in transit. Serving them fine spirits en route forces
pilots and charter operators to carefully weigh the risks, and to
determine when and how to say no more. B&CA