"The triggering factors are many and varied but intoxication through alcohol, narcotics or medication, often starting before a passenger boards the aircraft are the most common."
An unruly or disruptive passenger is one who fails to respect rules of conduct at an airport or on board an aircraft or (fails) to follow instructions of the airport staff or crew members and thereby disturbs the good order and discipline at an airport or on board the aircraft, according to Annex 17 to the International Civil Aviation Convention 1944. An aircraft is considered to be in flight from the moment power is applied for the purpose of take-off until when the landing run ends.
Tokyo Convention
The Convention on Offences and Certain Acts committed on Board Aircraft (Tokyo Convention, 1963) governs the offences and other unlawful acts that occur on board an aircraft in flight, including unruly and disruptive behaviour by passengers.
Approximately 185 countries (known as contracting States) out of the 191 United Nations (UN) countries have ratified this convention making it one of the conventions with the highest number of ratifications. Kenya ratified the convention on 22nd June 1970 and it became effective on 20th September 1970. The convention applies only to civilian aircraft and criminalizes acts which, whether or not are offences, may jeopardize the safety of the aircraft or persons or property aboard it or which jeopardize good order and discipline on board while that aircraft is in flight.
The aircraft’s State of Registration is mandated to exercise jurisdiction over offences and acts committed on board and each contracting State is required to take such measures as may be necessary to establish its jurisdiction as the State of registry over offences committed on board aircraft registered in such State. The convention does not however, exclude any criminal jurisdiction exercised in accordance with national law. Unruly Passengers Since the entry into force of Tokyo Convention 1963 on 4th December 1969, the number and type of unruly and disruptive passenger events on commercial flights has increased steadily.
According to the International Air Transport Association (IATA) statistics, in 2010, there was one unruly passenger incident for every 1,359 flights while in 2011, there was one unruly passenger incident for every 1,200 flights.
Aviation Law
The triggering factors are many and varied but intoxication through alcohol, narcotics or medication, often starting before a passenger boards the aircraft are the most common.Other causes include irritation with other passengers’ actions on board, frustration linked to a passenger’s journey, mental breakdowns or episodes (such as acute anxiety, panic disorder or phobias), mental conditions (psychosis, dementia or bi-polar disorder), and environmental factors that surround flying,(such as gathering of large crowds at airports, sitting and travelling in a confined space, fear of flying and fear of possible unlawful interference events.
Huge Losses
Cases of disruptive passengersnot only result in inconveniences to the flight and passengers but also cause huge losses in terms of costs to airlines which may run into millions of shillings. The costs include the cost of diversion. In extreme cases and where the safety of a flight is at risk, the pilot-in-command would divert a flight mid-journey to disembark an unruly passenger.
Consequently, the affected airline would suffer losses due to cost of refueling as the aircraft may be required to dump fuel for unexpected early landing for the onward journey, additional landing fees and ground handling charges at the port of disembarkation. In some cases, accommodation costs and passenger compensation may be incurred due to delays.
Additionally, new members of crew may be required in case of time out. The resultant delays may also cause missed schedules, inconveniences and have a negative impact on the airline brand and reputation.
Restraint aboard
The pilot-in-command of an aircraft is empowered under Article 6 of the Tokyo Convention 1963, when he/she has reasonable grounds to believe that a person has committed, or is about to commit, on board the aircraft, an offence or act, to impose upon him/her reasonable measures including restraints. This is in order to protect the safety of the aircraft or of persons or property on board and further, ensure good order and discipline is maintained on board an aircraft and the Pilot- in-Command deliver such person to competent authorities or to disembark him/her in accordance with the provisions of the convention.
Airlines use different methods to restrain unruly passengers including the use of flex-cuffs (a type of plastic strap that functions as a handcuffs and easier to carry than metal handcuffs), seatbelts,adhesive tape, shoe laces, neck ties or whatever is available to immobilize unruly passengers on the seats. In Australia, the use of stun guns (an electroshock weapons that momentarily disables a person with an electric shock) is permitted. The convention grants immunity to the aircraft commander, members of the crew, any passenger, owner or operator of the aircraft, person on whose behalf the flight was performed against any liability on account of the treatment meted on the person against whom the actions were taken in accordance with the convention.
Legal Frameworks
The Tokyo Convention 1963 does not clarify what constitutes an offence and neither is there a documented list of what constitutes an offence. The International CivilAviation Organization (ICAO) has provided some guidance material but different States have different definitions of what acts amount to an offence. Therefore, there is no clarity in the legal framework to help define incidents of unruly passengers. However, one can generally state that it depends on the individual circumstance and the main consideration is if the behavior jeopardizes the safety of an aircraft in-flight then it is an offence under this Convention.
Common offences include illegal consumption of narcotics or cigarettes, refusal to comply with safety instructions, verbal confrontation with crew members or other passengers, physical confrontation with crew members or other passengers, uncooperative passengers, making threats that could affect the safety of crew, passengers and aircraft, sexual abuse or harassment.
Hot Water
Some reported cases of unruly behaviour include an Air Asia flight from Bangkok, Thailand to Nanjing, China in December 2014 which was forced to turn around after an irate passenger deliberately threw boiling water on a flight attendant. According to the airline, a Chinese couple who were travelling with a tour group became furious when they were seated apart. Instead of calming down when flight attendants were able to seat them together, the woman ordered instant noodles and boiling water and then proceeded to chuck the scalding water on a flight attendant after a dispute over payment.
Ebola Scare
In October 2014, a coughing and sneezing passenger flying from Philadelphia, USA to the Dominican Republic shouted “I’ve been to Africa and I have Ebola!” Consequently, the aircraft was held on the tarmac for more than an hour after landing, while emergency workers in hazmat suits removed the passenger from the aircraft. The passenger pleaded that he had only been joking but the airport had to take precautions. On 9th March 2014, a groom flying from Atlanta USA to Costa Rica forced Delta Air Lines flight to divert to the Cayman Islands after he got into an argument with his new wife en route to their honeymoon. Theplane then proceeded to USA
with the wife on board leaving him
in the custody of the Cayman Islands’
authorities.
Kisumu Passenger
In Kenya, on 17th November 2014 a passenger was charged before a Kisumu Court, accused of causing a one-hour delay for 27 other passengers by smoking an electronic cigarette on KQ aircraft flight 874. According to the charge sheet, the passenger refused to follow instructions by flight authorities to stop smoking.
Legal Loopholes
The biggest challenges with the existing legal framework dealing with offences committed on board an aircraft under Article 3 of the Tokyo Convention is the limited jurisdiction. The convention only recognizes the State of registry as competent to exercise jurisdiction.
This may have been true as at 1963 when the convention was negotiated but developments in the aviation sector has necessitated a review. In March/April 2014, ICAO convened a diplomatic conference in Montreal, Canada at which the contracting States came up with a protocol that among other issues addresses jurisdiction. Although the Montreal protocol, 2014 is not yet in force, it has extended jurisdiction to the State of landing (when the aircraft on board which the offence or act is committed lands in its territory with the alleged offender still on board) and to the State of the operator(when the offence or act is committed on board an aircraft leased without crew to a lessee whose principal place of business or, if the lessee has no such place of business, whose permanent residence is in that State.
Further, the current legal framework does not provide an enumeration of offences and penalties. This may pose a challenge in some jurisdictions if their Constitutions provide that a criminal offence must be clearly stated and attendant penalty stipulated. The ICAO has provided circular number 288 to provide guidance on what constitutes an offence but that remains just guidance material and not a penal code.
Mr. Wayong’o is a Legal Officer at the Kenya Civil Aviation Authority (KCAA)
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