Contributing Editor Serving Up Liability Part 135 charter operators have requirements in addition to page 1

Contributing Editor Serving Up Liability Part 135 charter operators have requirements in addition to

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  • rpoint of Law.J Kent S. Jackson Contributing Editor

    kjackson@jetlaw.com

    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 or Drugs:

    "Except in an emergency, no pilot of a civil aircraft may allow a person who appears to be intoxicated ... to be carried in that aircraft."

    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 proceedings.

    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

    www.AviationWeek.com/bca