Airline crewmembers are responsible for safety and order in the passenger cabin and necessarily undertake law enforcement responsibilities when planes are in flight. Yet no federal statute clearly defines the police authority of airlines over their passengers. A 1963 treaty, the Tokyo Convention,1 does establish rules applicable to international flights. It took nearly 50 years, but the first U.S. case interpreting the treaty, Eid v. Alaska Airlines Inc.,2 was decided last year in a 2-1 decision of the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court recently denied certiorari in Eid, despite amicus briefs filed by the United States and various carrier and pilot organizations urging the Court to overturn the decision. Eid ruled that under the treaty, airlines are held to a standard of reasonableness rather than a more deferential and higher benchmark that would establish liability only where the airline’s conduct was “arbitrary and capricious.”
Prior to Eid, a series of cases held that an “arbitrary and capricious” standard applied under a federal statute which provides that a carrier “may refuse to transport a passenger…the carrier decides is, or might be, inimical to safety.”3 The U.S. Court of Appeals for the Second Circuit ruled that an airline was within its rights to refuse boarding to a man based on information received from government authorities that he was violent, armed and extremely dangerous.4 The court rejected arguments that the airline was required to investigate the information, and concluded:
