regarding implicit consent
 

Recently a friend had a non-refundable ticket and was flying the same flight as I was. When she checked in, I noticed that she had been SSSS’d and I informed them that she would be “secondaried” at the checkpoint and what that would entail.
At the checkpoint she asked if she passed the screening and did not alarm would she still require a pat down. At first the screener would not say one way or the other but she refused to pass through or put bags on the x-ray belt until they confirmed or not. They finally admitted that she would be subjected to secondary regardless because of the random assignment. She picked up her stuff and left. She went to the airline counter and asked for a refund.
At first the airline pointed out that the ticket was non refundable and she responded that she did not agree to a body search as part of the contract of passage. After a few minutes with a supervisor she was refunded her monies.
The questions I have are:
1. If she had placed her belongings on the belt and passed through the metal detector and then refused screening could she still walk away?
2. Since she did receive her refund on a non-refundable ticket how is consent to search an implicit part of the contract of passage?

^ ^

Good for your friend!!!

If you buy a refundable walk-up ticket and you get SSSS, definitely refund it.

In this case, if haraSSSSment is not specified in the CoC, then I think she is entitiled to a refund if she has not started the "screening" process.

I don't know about other airlines, but here is United's policy.

UA WILL REFUSE TO TRANSPORT...ANY PASSENGER...WHO REFUSES TO PERMIT SEARCH OF HIS/HER PERSON OR PROPERTY FOR EXPLOSIVES OR A CONCEALED, DEADLY, OR DANGEROUS WEAPON OR ARTICLE....SUCH CARRIER WILL, AT THE REQUEST OF THE PASSENGER, REFUND IN ACCORDANCE WITH RULE 260 (INVOLUNTARY REFUNDS).

Rule 260 provides for a full refund of the initial ticket price (or a commensurate fraction thereof depending if the ticket has been partially used).

You know, this is an interesting can of worms that just got opened -- how to get your refund on your non-refundable ticket. Show up, check in, don't check in any bags, get to the checkpoint, refuse to be screened.....

Nice! ^

However, I think if we try this more than once, then the airlines will add the following statement to the contract of carriage.

PASSENGERS WHO HAVE PREVIOUSLY PURCHASED TICKETS AND REFUNDED UNDER RULE 260 (INVOLUNTARY REFUNDS) FOR REFUSAL TO BE SCREENED WILL BE DENIED FURTHER REFUNDS FOR REFUSAL OF SCREENING. FURTHER SAID PASSENGERS WILL HAVE ALL FUTURE NON-REDUNDABLE TICKETS FOR TRAVEL ON UA/*A CANCELLED WITHOUT REFUND.

This is an example of what UA could add to the COC if this got used too much. Basically this becomes a no-fly list for each airline. Do it too much and you cannot fly anywhere with anyone.

Then they would add the following statement to website under terms and conditions of sale

NOTICE TO PASSENGERS: IN FURTHERANCE OF TRANSPORTATION SAFETY ADMINISTRATION PROCEDURES, ALL PASSENGERS WILL BE SCREENED PRIOR TO TRANSPORT. BY PURCHASING THIS TICKET YOU AGREE TO SECURITY SCREENING IN ACCORDANCE WITH CURRENT TSA GUIDELINES, WHICH MAY INCLUDE SECONDARY SCREENING AT TSA/AIRLINE DISCRETION. REFUSUAL TO BE SCREENED WILL NOT BE CAUSE FOR A REFUND OF ANY NON-REFUNDABLE TICKET.

just a thought. I just think we don't want to open this can of worms.

I totally disagree. This is a can that should definitely be opened. If the airlines start having the refund tickets and start getting grief from pax, then they might start putting pressure on the TSA to cease and desist.

As to your first question, almost definitely not. Existing case law on airport screening states that once passengers enter the screening process, they must continue until cleared, else criminals would have a "guaranteed means of exit" in the event they were detected.

As to your second question, search isn't necessarily implied into the contract between the carrier and the passenger, because the carrier is no longer the entity conducting or requiring the search. Frankly, I'm surpised more carriers don't have a provision similar to the one MSP-MSY posted from UA. The carrier here was probably under no legal obligation to refund the ticket...I think your friend just got a good break.

I seriously doubt the airlines can contractually obligate us to agree to TSA procedures that are put in place after we purchase our ticket. An good example would be a ticket purchased prior to but flown after the TSA pat-down/grope policies were put in place in September. Given the inconsistency in TSA screening policies from day to day, this argument could be stretched quite a ways.

Another case is that we don't know if we're going to get SSSS at purchase. We should have the option to refund the ticket once we see the SSSS on the BP. Especially since the TSA claims the airline is the one choosing to SSSS us (although we all know that's a farce in most cases).

I don't want to screw over the airline, but if just a few dozen/hundred pax did this, the airlines might apply some pressure to the TSA to have some modicum of respect for passenger rights.

please elaborate.

See post #9 and #11 in this thread:

http://www.flyertalk.com/forum/showthread.php?t=354774

Under the current system, the airlines run pax names through the secret selectee/no-fly lists, so the TSA can with some degree of honesty, blame the airlines when the pax gets selected. Of course, the airlines are forced by the TSA to use these lists. But TSA wll tell you to take it up with the airline if you disagree with being selected. So I submit the pax should have the right to demand a refund from the airline if selected.

If/when "Secure Flight" (CAPPS II+) gets implemented, TSA will take over the selectee/no-fly check and the TSA won't be able to blame the airlines. However, the TSA has little motivation to fix persistent false positives on these lists that harass innocent pax. TSA's current track record for getting people off the selectee/no-fly list is abysmal unless the pax in question is a member of congress.

First of all the wording I provided in my earlier post is an example of what the airlines could place in the COC if too many people start refunding tickets for security refusals. not an actual cut and paste from UA's COC.

Second, I think that if enough people started refunding the tickets under the rule 260. The airlines would change the terms that you agree to when purchasing the ticket to make it clear that screening is done, and that refusal will not be grounds for a refund. Contractually they can hold you to those terms because they fully disclosed the screening (that it will happen) to you, told you the procedures were out of their hands, and it is a term of the sale. Further because screening is done by the government, then any action done at the checkpoint would fall under the restraint of princes clause in the COC, which essentially states the airline is not responsible for government actions, and no refunds will be given because of government action. it is a risk of carriage.

In the end whether we agree with the procedures or not, if too many people take advantage of this clause, it would soon disapear. Further those who "abuse" the clause could easily find themselves unable to book tickets or fly the airline they use the clause on. In essence they would be banned from the airline because they are too much of a pain and a drain on the airline's finances. In most cases it would probably occur after the second refusual. The first one, the airline could say, you didn't know what the screening meant. After the second one, you couldn't say that, even though the rules change faster than anyone can follow.

If one agrees that the screening process starts when the ticket is printed, then one already has a "guaranteed means of exit." They don't have to enter the security lane if their ticket says SSSS.

NW's starts out similar, but with a decidedly different result:

NW WILL REFUSE TO TRANSPORT...ANY PASSENGER...WHO REFUSES TO PERMIT SEARCH OF THEIR PERSON OR PROPERTY FOR EXPLOSIVES OR A CONCEALED, DEADLY OR DANGEROUS WEAPON OR ARTICLE.... NW IS NOT LIABLE FOR ITS REFUSAL TO TRANSPORT ANY PASSENGER OR FOR ITS REMOVAL OF ANY PASSENGER IN ACCORDANCE WITH THE PRECEDING.... A PASSENGER SHALL NOT BE ENTITLED TO A REFUND IF THE PASSENGER'S TICKET IS NONREFUNDABLE.

Furthermore, NW has a whole section of the CoC with regard to TSA screening:

PASSENGERS AND/OR THEIR BAGGAGE ARE SUBJECT TO INSPECTION BY EMPLOYEES OF THE TRANSPORTATION SECURITY ADMINISTRATION (TSA) ACCORDING TO STANDARDS AND PROCEDURES ESTABLISHED BY THE TSA, WITH AN ELECTRONIC DETECTOR WITH OR WITHOUT THE PASSENGER'S CONSENT OR KNOWLEDGE.

THE TSA HAS INSTITUTED STANDARDIZED SCREENING PROCEDURES AT AIRPORTS ACROSS THE COUNTRY. THE FOLLOWING INFORMATION DESCRIBES THE NEW ENHANCED PROCEDURES AS THEY PRESENTLY EXIST:
1) EACH PASSENGER MUST GO THROUGH TWO STAGES OF SCREENING:
A) BAGGAGE CHECKPOINTS:
[snip]
B) PASSENGERS CHECKPOINTS:
PASSENGERS MUST PASS THROUGH THIS CHECKPOINT TO ACCESS THEIR DEPARTURE GATE. SECURITY SCREENERS WILL SCREEN PASSENGERS AND CARRY-ON BAGGAGE. THIS CHECK POINT INCLUDES X-RAY MACHINE, WALK-THROUGH METAL DETECTOR, SECONDARY SCREENING WHICH MAY INCLUDE A HAND-WAND INSPECTION AND/OR A PAT-DOWN INSPECTION, INCLUDING POSSIBLE EXAMINATION OF ITEMS SUCH AS SHOES (AS
DETERMINED BY THE TSA). IF CARRY ON BAGGAGE IS SELECTED FOR A SECONDARY SCREENING, BAG MAY BE OPENED AND EXAMINED AND MAY ALSO BE INSPECTED WITH AN EXPLOSIVE TRACE DETECTION MACHINE (ETD), WHICH IS SEPARATE FROM THE X-RAY MACHINE UTILIZED AT THE CHECKPOINT.
2) SOME PASSENGERS MAY BE SELECTED FOR ADDITIONAL TSA
SCREENING AT THE DEPARTURE GATE.
[snip]
NORTHWEST AIRLINES WILL NOT BE LIABLE IN ANY RESPECT FOR A PASSENGER'S FAILURE TO COMPLY WITH TSA'S SURVEILLANCE AND INSPECTION REQUIREMENTS.

When you buy a ticket from NW, it pretty clear says you are agreeing with the CoC. I'd say your implied consent is right there.

Agreed! The case law in question is from the 70s and early 80s, well before CAPPS entered the scene (and even then, in a different role) in 1994. But, that doesn't mean that the existing case law is any less applicable from a legal perspective.

i remember being "selected" before TSA took over. the only thing that has changed from what i can notice is the way that they check. unless it's in reference to instances in which certain senators or members of congress getting stopped for being on a list-which is different from the previous procedure.

I just don't see how the airline can argue that you are not entitled to a refund, even on a non-refundable ticket, when the TSA has drastically changed search procedures between the time you bought the ticket and the day of the flight. Especially when the change involves touching a passenger's sexual areas.

This is a classic bait-and-switch: the terms change after you purchase the ticket. It's not the airlines' fault; it's the TSA's for not giving the public adequate notice. Any change in search procedures should carry at least a one-year advance notice, because airlines sell tickets 364 days in advance.

Most airlines only sell 330 or 331 days in advance.

And, um, you think SSSS is a dumb way to tip off the bad guys? How about "We've discovered a new threat, and starting 332 days from now, we're going to search [insert body part here] more thoroughly to try to combat that threat." Please. :rolleyes: The debatable "secureness" of current search procedures aside, if they want to implement a new procedure, they shouldn't have to notify the public a year in advance.

NW's CoC is pretty clear that secondary may happen, and that you are agreeing to be searched however TSA wants to do it when you buy your ticket.

If that's going to be a problem for you, maybe you should fly AA or UA, whose CoCs appear more lenient. I haven't looked at any CoCs besides NW, UA, and AA.

If it were up to the airlines, nobody would be haraSSSSed.

The TSA forces the airlines to choose X people to be haraSSSSed per the CRAPPS metrics.

It's like someone putting a gun to your head and telling you to choose someone on the airplane to be shot. After your selection is killed, the murderer tries to pin the rap on you, saying that you chose the person to be killed. Nice.

Technically, we don't know what the ticket says regarding searches until it is physically in our possession. Perhaps the airlines should be required to inform customers of the airline's position on refunds and the search procedures BEFORE purchasing their ticket, so the pax has an opportunity to say "thank you, I do not care to fly under those conditions."

The rules were in affect long before the TSA took over. It was an FAA rule in conjuction with the airlines that a % of passenger have additional screening. When the TSA took over they adopted the FAA rules. It was easier to do this than make up new rule in the time span they had. The airlines can deselect any passenger from additional screening. The problem is most agents do not have the knowledge to do it and it requires the supervisor ok. Most airlines will tell you they can't do it but if you complain enough they will.

http://www.aa.com/content/customerSe...Carriage.jhtml
http://www.united.com/page/article/0,6722,2743,00.html
http://www.nwa.com/contract.html
http://www.delta.com/home/notices/carriage/index.jsp
http://www.continental.com/travel/po...ct/default.asp
http://www.southwest.com/travel_center/contract.html
http://www.airtran.com/info/policies/index.jsp

And so on.

Of course it's there, but go to, for instance, the American Airlines website and tell me how many layers you have to go through to find this information. There's not a category for "Customer Service" on the dropdown menu on the left side of the page; you have go to "Customer Commitment" before even beginning to find the CoC.

And if you're buying a ticket over the phone, you've no idea what you are getting yourself in for because they aren't going to voluntarily tell you.

It needs to be in big, bold letters on their website: By purchasing a ticket to fly on Such and Such Airlines, you acknowledge that you are aware that you may be subject to a physical search of your person before being allow to board your flight.

Yes, we can read the contracts of carriage in advance of buying the ticket, but being asked to agree to "a search" when the contract does not disclose the detail that your breasts may be squeezed by strangers, and when in fact on the day you bought the ticket there was no such breast grabbing in prospect, is dishonest on its face.

If you bought a car, and the contract said you agree to pay "a fee" for picking the car up, wouldn't you need to know how much that fee is? And if you asked how much the fee was, and were told that it is $50, but when you showed up to get the car they demanded $5000, wouldn't you say that's dishonest?

It's a bait and switch for TSA to change the terms of the search so drastically after you buy a ticket and then not force the airlines to refund you if you refuse the new search.

Yeah right.

Before 9/11, almost nobody was haraSSSSed. Now 15-20+% are. The airlines did not cause this increased haraSSSSment to occur, the TSA did. :mad:

^ ^

Exactly. I've been a frequent flyer for decades and not once have I ever been selected for secondary screening until after September 11, 2001. Never. Not SSSS'd, not random continuous secondary screening, nothing. My first secondary screening happened in late September, 2001. Before that, never. I suspect my experience is not unique.

I know, Everything Changed on September 11. :rolleyes:

Regarding a different type of implicit consent, you consent to all terms in the Contract of Carriage and applicable fare rules/tariffs when you purchase the tickets. This is applicable to cancellation fees, overbooking procedures, and things like the statement where you agree to have your belongings searched at any time with or without your knowledge and you agree to your person being searched. If you don't agree with all the terms in the Contract of Carriage, you should not purchase the ticket.

From AdamK: "Regarding a different type of implicit consent, you consent to all terms in the Contract of Carriage and applicable fare rules/tariffs when you purchase the tickets. This is applicable to cancellation fees, overbooking procedures, and things like the statement where you agree to have your belongings searched at any time with or without your knowledge and you agree to your person being searched. If you don't agree with all the terms in the Contract of Carriage, you should not purchase the ticket."

Then you don't get it either, do you?

Never doubt that a small group of thoughtful, committed citizens can change
the world. Indeed, it is the only thing that ever has. -- Margaret Meade

The above quote from a website referencing the successful effort to return Pale Male to his nest site in NYC.

You can pull up any airline's CoC by going to google and typing in "site:_____.com contract of carriage" (where ____.com is the airline's website). That doesn't excuse them from making it hard to find through their own sites, however.

This has always been the case. The CoC is a dense, lengthy document, and the vast majority of pax have no interest in ever seeing it. Correct me if I'm wrong, but I believe the CoC evolved as part of deregulation The carriers converted the old fed regs into private "contracts" with the pax so that they could continue operating under essentially the same rules, but could tweak those rules when necessary. This is why so many airlines' CoCs have near-identical langugage and structure.

I believe NW has a big link to the CoC right before you hit "purchase." Don't know about other airlines. Most airlines also have signs at the ticket counters reminding you that your ticket is governed by the CoC--although that is a bit pointless now that so many people use self-service checkin methods.

Agreed. Many airlines' websites and other online travel agencies require you to click that you have read and agree to all terms/conditions of the fare (including the CoC), and evidently most people simply check the box. For example, Alaska has a check box and you have to " agree to the fare rules of this itinerary. "


Additionally, all departure gates, self-service check-in areas, and regular check-in areas are required to have copies of the contract of carriage available for inspection; they are also required to have signs stating this.

Furthermore, most ticket jackets (I don't know if this is the case now) have a clause stating airlines' limited liability. I don't know how many times I have seen a statement similar to "If you would like more information about our policies, ask an agent".

Thus, there are 4 ways for the passenger to become aware of the contract of carriage and fare rules: at time of purchase, at check-in, on your ticket jacket, and at the gate.

If one really wants to view the Contract of Carriage, it is easily available on the airlines' websites, as themicah pointed out. Many airlines will also mail you a complimentary copy upon request.

I maintain that it is the passenger's responsibility to inform him or herself of the contract he or she is entering into before purchasing a ticket. Although we can't agree to secret regulations (like the TSA), the CoCs are published and easily available.

red456, I'm afraid I do not understand your argument or previous statements. The clause I found about security in UA's CoC was not "buried." In fact, I used the handy search feature in Acrobat Reader and found the appropriate section in well under 15 seconds. Could you explain to me what would constitute "not buried" for you?

Also, you state that the telephone agents will not "volunteer" information over to you regarding CoC and policies. Has it occurred to you to actually ask the agent about their policies regarding the subject you're interested in? I have done that many times and they have been extremely helpful and polite. The average customer, however, does not want to hear about the many reasons one could be refused transport every time they call the airline.

Adam

I'd have to say this is the real issue. We are agreeing to the contract of carriage without being advised about the manner in which the search will be conducted. In this case, the manner in which they are being conducted has changed drastically from the time of purchase, so shouldn't that nullify any prior agreement to cooperate with a prior form of search?

Note that at least NW (and I'm sure other airlines, too) have the following provision right up front in Rule 1:

RULES, REGULATIONS AND CONDITIONS OF CARRIAGE ARE SUBJECT TO CHANGE WITHOUT NOTICE

Okay, I'm actually not sure what the condition you pointed out means. What good is a contract of which every single part can be changed after you sign it?

I think the basic principle of the thing is clear to everyone: no one can give a blanket consent that they'll cooperate with any cockamamie, invasive, dangerous procedure the TSA might think up. What if tomorrow it's cavity searches or high-dose radiation? It's absurd to say that by buying a ticket today, I'm saying okay to a bunch of procedures that haven't even been invented yet, no matter what the CoC says.


You can't give your consent unless you know what you're consenting to. Anything less than full disclosure of the terms of an agreement is manipulative and should be criminal. Give us a break, Northwest.

Point being that you are agreeing to comply with whatever procedures are in place at the time you fly. And the CoC absolutely guarantees something to the passenger: that you will be transported to your destination.

First, you agree to the Contract of Carriage as revised at the time of purchase on United (I am not aware of other airlines' policies). So if United drastically changes their policies after ticketing, you are protected under their original policies. (That is why when they make a major change, they say it applies to all tickets issued after a certain date.)

I agree that the CoC does not provide specifics as to what type of searches are permitted; this is probably because the airlines are not in control of screening and it is not their jurisdiction. Thus, in the CoC, you consent to practically any search, but you can revoke that consent at any time, and, if so, receive a full refund.

A side note: what would happen if you called up reservations and told them you would refuse to consent to a search; would they refund you the money then or do you have to go to the airport?

To summarize, I think GradGirl has a good point in that the searches could change drastically between ticketing and travel. I believe that is why one is entitled to a full refund if he or she does not wish to be searched.

Using the NW CofC quoted above, in my lay opinion it is clear you are not entitled to a refund having already agreed to 'be searched' (explicitly or by omission).

The only chance would be if the subsequent changes in the (unspecified) search process were deemed to be either illegal or unconstitutional. As has been discussed in many previous threads, the courts have held that airport searches in their original form are exempt from 4th Amendment provisions. I don't think there has been any challenge that the current pat-down aspect constitutes unreasonable search, and although I wish someone would I expect the court(s) would conclude they are OK too :( .

Wally Bird,
As I stated above,
I agree I am not knowledgable about airlines other than UA. Thanks for informing us about the difference in NW's CoC.

Adam