Federal Aviation Administration-Federal Bureau of Investigation-Air Transportation Security
| Decision Date | 29 September 1978 |
| Docket Number | 78-54 |
| Citation | 2 Op. O.L.C. 219 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Federal Aviation Administration-Federal Bureau of Investigation-Air Transportation Security (49 U.S.C. § 1357(e))- Management of Aircraft Hijacking (49 U.S.C. § 1472(o)) |
Leon Ulman Deputy Assistant Attorney General Office of Legal Counsel
Federal Aviation Administration-Federal Bureau of Investigation-Air Transportation Security (49 U.S.C. § 1357(e))-Management of Aircraft Hijacking (49 U.S.C. § 1472(o))
This is in response to your inquiry for our views on several questions in connection with the management of a commercial aircraft hijacking. You informed us that the Federal Aviation Administration (FAA) is authorized to direct the management of a hijacking situation while an aircraft is in flight. 49 U.S.C. § 1357(e).[1] The Federal Bureau of Investigation (FBI) is responsible under 49 U.S.C. § 1472(o) for the remaining aspects of the management of a hijacking by the Federal Government. You ask the following specific questions about the tort liability of the United States and a commercial air carrier arising from the activity of these Federal agencies once an aircraft has been hijacked.
2. Does the FBI and/or the FAA, either under question 1(a) or 1(b) above, have any authority to enter into a hold harmless agreement or otherwise make certain commitments which may legally bind the U.S. Government?
We answer in sequence. [ 220]
The initial issue concerns the liability of the carrier for actions of the United States in the management of a hijacking, whether taken with or without the consent of the carrier. Significant difference exists in the liability of the carrier for domestic and international air transportation.
A carrier's liability for personal injury occurring in international air transportation to, from, or through the United States is governed by the Warsaw Convention [2] as modified by the Montreal Agreement.[3] In essence, these two international agreements provide that the carrier is liable up to $75, 000 per person, absent negligence, for death or bodily injury on board an aircraft or in the process of embarking or disembarking.[4] It has been uniformly held that an "accident" imposing liability within the meaning of the Warsaw Convention extends to the intentional acts of third parties, including hijacking and sabotage.[5] While the courts have split on the issue, district courts in New York -¢and California have held that the Convention permits recovery for mental distress caused by a hijacking regardless of physical injury.[6] Thus, a carrier would be strictly liable to a passenger covered by the Warsaw Convention[7] for no more than $75, 000, irrespective of fault. Its consent or lack of consent to acts of Federal employees would not affect this liability.
The liability of a carrier to a passenger not covered by the Warsaw Convention is a matter of State tort law.[8] Because we are aware of no reported cases involving the management of a domestic hijacking, [9] we can only state those general principles of tort law that would apply to a carrier in responding to the criminal act of a third person. As a general rule, a common carrier, including an air carrier, has a common law duty to use the highest degree of [ 221] care in protecting its passengers from injury, [10] such as the duty to take reasonable action to defend passengers after it has been notified that an assault is occurring.[11] What would be reasonable action in response to such an assault depends on the particular facts of the case, and at least one commentator indicated that the carrier's employees have a duty to refrain from any action that reasonably may provoke greater violence or expose passengers to greater risk of harm.[12] In the light of the high standard of prescribed care imposed upon common carriers, we may argue that an air carrier could be liable for those of its actions during a hijacking which unreasonably increased the risk of harm to the passengers.
Assuming that the carrier is liable for negligent mishandling of a hijacking, the question presented is how the actions of the United States would affect that liability. As a rule, the carrier would not be liable for independent Government action which it did not request and has no power to prevent.[13] When the Government acts in conjunction with the carrier, however, the matter is more complex.
Several cases involve the negligence of a person acting under the command of a law enforcement officer to render assistance in apprehending a criminal. At common law, and by statute in many States, an individual is obliged to obey a law enforcement officer's request for assistance.[14] However, it appears that an individual assisting a law enforcement officer is still required to exercise the due care appropriate to the circumstances.[15] Thus, in Jones v. Melvin, it was held that a driver engaged in pursuit under the direction of a police officer was [ 222] negligent because he operated the vehicle at a faster speed than his ability to maintain control. We are aware of no common law authority excusing an individual's negligence, even when acting under the direction of law enforcement officers.[16]
Federal law governing the operation of aircraft has reaffirmed this principle.
As a general rule, the pilot in command of an aircraft is the final authority for its operation, and instructions from Government air traffic controllers do not relieve him of his responsibility.[17] In 1974, Congress enacted 49 U.S.C. § 1357(e)(2), which provides that the FAA "shall have exclusive responsibility for the direction of any law enforcement activity affecting the safety of persons aboard aircraft in flight" involved in a hijacking.[18] The legislative history expressly allocates responsibility between the FAA and FBI but does not change the paramount authority of the pilot. Representative Kuykendall, the manager of the bill in the House, explained it to the House as follows:
The gentleman . . . has asked possibly one of the most important questions we have discussed in this bill. That is actually, not so much what the jurisdiction of the FBI and FAA may be, but what the jurisdiction of the air crew is .... [W]e decided that the pilot-from the moment he boards the aircraft until the moment he departs, is in charge. The passengers or the crew may be gone during this period.
This is in the report, it is not in the law, but unless the ground forces have reason to know that this pilot is disabled and is unable to operate the aircraft, then he is in charge and the aircraft cannot be disabled from outside unless permission is given.[19]
Similarly, the Senate committee report states:
Finally, of course, the aircraft commander is the person who must acquiesce to the hijacker in the execution of his demands. We are concerned that in some instances the aircraft commander has not been consulted or been given an opportunity to make input into decisions being made on how to deal with a hijacking in progress .... The aircraft commander must not be ignored because, as is usually the case, the ultimate safety of all aboard during a hijacking incident is dependent upon the skill, courage, and decisions of the aircraft commander.[20]Thus, Federal law enforcement officials were not authorized to direct the pilot in command in the management of a hijacking. While they may request or [ 223] advise that he should take action, final decisionmaking remains with him. Under general principles of respondeat superior, the carrier would be liable for any negligent decision he makes.
A carrier, therefore, would be strictly liable for up to $75, 000 in damages per person for injuries in a hijacking, covered by the Warsaw Convention, regardless of the actions of the United States. To persons not covered by the Warsaw Convention, the carrier would be liable for its own negligence in the handling of a hijacking. While the carrier and its employees may have a legal duty to cooperate with Federal law enforcement officials in managing a hijacking, the available case law indicates that the carrier would nevertheless be liable for negligence in the course of such cooperation. The legislative history of 49 U.S.C. § 1357(e)(2) clearly reserves final authority to the pilot in command, and the advice or suggestions of Federal law enforcement officials would not relieve the carrier of liability for the pilot's negligence.
You further inquire whether the FAA or the FBI has authority to indemnify a carrier for its liability in connection with the management of a hijacking incident. We conclude that, with certain limited exceptions, they do not.
While the Constitution does not preclude the Government from entering into an indemnity contract, the Anti-Deficiency Act R.S. § 3732, 41 U.S.C. §11, prohibits a contractual arrangement by the Government "unless the same is authorized by law or is under an appropriation adequate to its...
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