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More than 100 passengers on a JetBlue aircraft bound for Newark, N.J., were left stranded on the tarmac at Hartford, Conn.’s Bradley Airport for more than seven hours on Oct. 29 when a major snowstorm blanketed the Northeast. The U.S. Department of Transportation is investigating the incident. Hugh Totten, an attorney at Valorem Law Group in Chicago, who has represented airlines and sued airports in construction disputes, told The National Law Journal that JetBlue could be on the hook for some of the first fines to be paid under new rules the department enacted last year. The potential penalty: $27,500 for each passenger stranded on a tarmac for more than three hours. The passengers won’t see a dime, however, he said. His remarks have been edited for length and clarity. The National Law Journal: What exactly happened on this JetBlue aircraft? Hugh Totten: An unexpected snowstorm hit the Northeast and flights from many carriers were diverted from the New York area. JetBlue was hit particularly hard — I think they had six flights diverted to Hartford, Conn. And one plane in particular, flying from Fort Lauderdale, was on the tarmac at the airport for seven hours. The pilot was pleading for help, both to his company and to the airport officials, and ultimately got the police involved because there were some illnesses on the aircraft and people were in very serious shape — no running water, toilets weren’t working, no food. This happened in such a way it was traumatic for most of the people who were on this aircraft. Most of these people were feeling as though they were held prisoner. NLJ: The department now is investigating the JetBlue incident. Do you anticipate fines to come out of this matter? H.T.: My guess would be is there will be some kind of fine. It’s unclear why this plane couldn’t get to a jet bridge and get these people off. There’s all kinds of complexities with that, and it’s really too early to tell. I think the public would have an outcry if there weren’t some kind of fine in this case. If you listen to this pilot and the transcripts of his conversations, he’s saying to the people on the ground he’s not getting any help from his own company. NLJ: How much could JetBlue be liable for, given the number of passengers on the plane? HT: I think if they imposed the maximum fine, it would be somewhere around $3 million. NLJ: How often have fines been levied against airliners since the new rules were passed? H.T.: I’m not aware of any. This would certainly be the most public of all of them. NLJ: Are these new rules adequate to protect passenger rights? H.T.: It was designed that way, but there are exceptions that you can drive a truck through. The pilot can determine there’s a safety reason why he should not go to and proceed to the gate, and operational personnel of the airport can determine that allowing the plane into a gate creates an operational hazard of some form. NLJ: Could passengers sue the airlines for this? H.T.: No. The passengers have no financial recourse for this. JetBlue has refunded everybody’s ticket. But that’s not one heck of a bargain. The back of your ticket has all kinds of fine print that prevents you from filing the lawsuit. You’re in their care, custody and control, and they are responsible for your safety. Which explains in many cases why they don’t want to bring a walking bridge to the aircraft in the snowstorm, because you might fall down the stairs. It’s the kind of calculation they have to make when in the middle of one of these situations. It’s that balancing act of providing for the safety of passengers and then not risking them further to the elements. NLJ: Could passengers sue the airport personnel? H.T.: I think the answer is the same. The airport personnel are not going to be held to have a duty under the airline’s contract of carriage, nor will they be held to have a duty under federal law to the people who are traveling. NLJ: JetBlue got in similar trouble over this several years ago in New York when passengers were left on the tarmac. That incident prompted the department’s new rules. What was different this time, if anything? H.T.: It’s too early to tell. It’s just that there are some delicious ironies here. That was a meltdown of the highest order — the whole system went down for them. But I think what this says to us, as a whole, as a public policy matter, is that we still need to rethink this. And God forbid it’s going to have to take somebody to die before we come up with a better answer for this. Contact Amanda Bronstad at [email protected].

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