Abstract
In 1976 the World Health Organization handed down its definitions of the three words “disabilities” “impairment” and “handicap”. These definitions brought to bear a distinct correlation between the words as flowing from one to the other. According to the WHO definitions ‘an impairment is any loss or abnormality of psychological, physiological or anatomical structure or function; a disability is any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being; and, a handicap is a disadvantage for a given individual, resulting from an impairment or a disability, that prevents the fulfillment of a role that is considered normal (depending on age, sex and social and cultural factors) for that individual’.
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Notes
- 1.
http://www.aarogya.com/support-groups/disability/the-un-definition-of-disability.html. However, according to activists in the disability movement, the World Health Organization has confused between the terms ‘disability’ and ‘impairment’. They maintain that impairment refers to physical or cognitive limitations that an individual may have, such as the inability to walk or speak. In contrast, disability refers to socially imposed restrictions, that is, the system of social constraints that are imposed on those with impairments by the discriminatory practices of society. Thus, the Union of the Physically Impaired Against Segregation has defined impairment and disability as: an ‘impairment is lacking part of or all of a limb, or having a defective limb, organ or mechanism of the body’. ‘Disability is the disadvantage or restriction of activity caused by contemporary organizations which take no or little account of people who have physical impairments and thus excludes them from the mainstream of social activities’. According to the United Nations Standard Rules on the Equalization of Opportunities for Persons with disabilities, the term “disability” summarizes a great number of different functional limitations occurring in any population, in any country of the world. People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature.
- 2.
An aircraft is considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation; in the case of a forced landing, the flight is deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board. See Convention on the Suppression of Unlawful Interference Relating to International Civil Aviation, done at Beijing on 10 September 2010. This document could be accessed at http://www.icao.int/icao/en/leb/treaty.htm.
- 3.
Regulation (EC) No 1107/2006 of the Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air. Article 2.
- 4.
Annex 9 defines a person with a disability as “Any person whose mobility is reduced due to a physical incapacity (sensory or locomotor), an intellectual deficiency, age, illness or any other cause of disability when using transport and whose situation needs special attention and the adaptation to the person’s needs of the services made available to all passengers”. The disabled passenger is not defined in Annex 9 to the Chicago Convention. The ICAO Manual on Access to Air Transport by Persons with Disabilities (Doc 9984) adopts the definition. The World Health Organization (WHO) regards “disabilities” as an umbrella term, covering impairments, activity limitations, and participation restrictions. WHO states that an impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. According to WHO, disability is thus not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives. Overcoming the difficulties faced by people with disabilities requires interventions to remove environmental and social barriers.
- 5.
Regulation (EC) No 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (‘the Regulation’) was adopted by the European Parliament and the Council on 5 July 2006. In the last decade, The European Disability Forum was actively lobbying for legislative measures putting an end to this situation since several years. The European Commission has also been clear in their intention to ensure equal opportunities for air travel for disabled people. It first raised this question in 2000 in its Communication on Air Passengers in the European Union. In 2002, the European Commission published a consultation paper regarding the question on whether any legal measures should be taken on Community level or not.
- 6.
According to the Regulation, ‘disabled person’ or ‘person with reduced mobility’ means any person whose mobility when using transport is reduced due to any physical disability (sensory or locomotor, permanent or temporary), intellectual disability or impairment, or any other cause of disability, or age, and whose situation needs appropriate attention and the adaptation to his or her particular needs of the service made available to all passengers.
- 7.
Article 9(1) states that with the exception of airports whose annual traffic is less than 150,000 commercial passenger movements, the managing body shall set quality standards for the assistance specified in Annex I and determine resource requirements for meeting them, in cooperation with airport users, through the Airport Users Committee where one exists, and organisations representing disabled passengers and passengers with reduced mobility.
- 8.
ICAO first adopted measures to facilitate air travel by the elderly and disabled in 1968 when the Seventh Session of the Facilitation Division (FAL/7) adopted a Recommended Practice urging that assistance be rendered to invalid passengers in making a direct transfer from one aircraft to another. This recommendation now appears slightly changed as Recommended Practice 8.23 in Annex 9 (12th Edition) which provides that Contracting States should cooperate with a view to taking the necessary measures to make accessible to persons with disabilities all the elements of the chain of the person’s journey, from beginning to end.
- 9.
According to WHO, there are more than 1,000 million people with disabilities in the world, of whom between 110 million and 190 million experience significant difficulties. The total corresponds to about 15 % of the world’s population and is higher than WHO’s previous estimates, which date from the 1970s and suggested a figure of around 10 %. Furthermore, the prevalence of disability is growing because of ageing populations and the global increase in chronic health conditions. National patterns of disability are influenced by trends in health conditions and environmental and other factors—such as road traffic crashes, natural disasters, conflict, diet and substance abuse. Disability disproportionately affects vulnerable populations, in particular, women, older people and people that are poor. Low-income countries have a higher prevalence of disability than high-income countries. See WHO Executive Board EB 132/10, Secretariat Report A66/12, 132nd session, 30 November 2012, at 3.
- 10.
Ibid.
- 11.
See Manual on Access to Air Transport by Persons with Disabilities Doc 9984, First Edition: 2013 at 1.1.
- 12.
Id. 2.1.
- 13.
Id. 2.5.
- 14.
The Manual adds that web-based material and internet bookings should be accessible to persons with disabilities in accordance with international web accessibility standards found at www.w3.org/standards/webdesign/accessibility. Id. 3.1.1.
- 15.
Id, 3.3.
- 16.
In this context, it is interesting to note that the Manual recommends that aircraft operators should have seats that are designated as accessible for persons with disabilities. Aircraft operators may choose to block these seats until close to the time of departure and should ensure that they are the last seats assigned to other passengers. Seats should be reassigned, if necessary, to ensure that persons with disabilities have appropriate seating. Aircraft operators that charge for advanced seat selection should waive the charge for a persons with disabilities in order that the latter may select the seat that best meets his or her needs. Aircraft operators are encouraged to provide persons with disabilities alternative seating, if available, where this can better meet their needs. Id, paragraphs 3.20 and 3.20.1.
- 17.
Article 38 of the Chicago Convention provides that any State which finds it impracticable to comply in all respects with any international standard or procedure resulting from the provisions of the Chicago Convention (such as the Annexes), or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within 60 days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to all other states of the difference which exists between one or more features of an international standard and the corresponding national practice of that State.
- 18.
Oliver Wendell Holmes, The Common Law (Mark DeWolfe ed.) 1963 at 5.
- 19.
517 N.W. 2d. 432.
- 20.
Id. 439–444.
- 21.
See Stanton, Incremental Approaches to the Duty of Care, Chapter 2 of Mullany, Torts in the Nineties, Law Book Company: 1997.
- 22.
(1985) 157 CLR 424.
- 23.
Id. 481.
- 24.
[1990] 2 AC 605.
- 25.
Id. at 618.
- 26.
McKay-Panos v. Air Canada [2006] F.C.J. No. 28 2006 FCA 8 Docket A-100-03.
- 27.
- 28.
On boarding the aircraft in Calgary on August 21, the applicant discovered that the bulkhead seats were actually smaller than the other seats because the tray tables folded into the arm rests rather than the forward chair as they did in other seats. The applicant found that she could barely force herself into her seat. The passenger beside her could not access his tray table because her hips spread onto his arm rest. The flight attendants bumped into her with their serving carts.
- 29.
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703.
- 30.
Id. 723.
- 31.
UNGA/RES/31/123 dated 16 December 1976.
- 32.
The Convention on the Rights of Persons with Disabilities and its Optional Protocol are serviced by a joint Secretariat, consisting of staff of both the United Nations Department of Economic and Social Affairs (DESA), based in New York, and the Office of the High Commissioner for Human Rights (OHCHR) in Geneva.
- 33.
- 34.
Article 3.
- 35.
Article 4 provides that “States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability”.
- 36.
Salomon v. Commissioners of Customs and Excise [1967] 2 QB 116, CA at 141 per Lord Denning M.R.
- 37.
[1931] AC 126 at 147 per Lord Tomlin. See also Barras v. Aberdeen Steam Trawling Co. Ltd. [1933] AC 402; Burns Philp & Co. Ltd. v. Nelson and Robertson Proprietaries Ltd. (1957–58) 98 CLR 495, HC of A.
- 38.
Salomon v. Commissioners of Customs and Excise supra, note 36.
- 39.
Brownlie (1990), p. 49.
- 40.
[1997] 1 All E.R. 193.
- 41.
Id. at 202.
- 42.
Semco Salvage v. Lancer Navigation, [1997] 1 All. E.R. 502 at 512.
- 43.
Supra, note 178 (Chap. 2).
- 44.
See Shaw (2003), p. 142.
- 45.
Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air Text with EEA relevance. Official Journal L 204, 26/07/2006 P. 0001–0009.
- 46.
Id. Article 1.
- 47.
Treaty establishing the European Community. Air transport in the European Community is fundamentally regulated by two treaties, i.e. the Treaty which establishes the European Coal and Steel Community (ECSC Treaty) and the Treaty which establishes the European Economic Community (EEC Treaty, now called the EC Treaty). The former, which was signed in Paris in 1951, addresses issues related to the carriage of coal and steel through the media of rail, road and inland waterways and as such is not directly relevant to aviation. The latter, on the other hand, admits of issues relating to all modes of transport in the carriage of persons and goods and is of some relevance to aviation.
The EEC Treaty, which was signed in Rome on 25 March 1957, has at its core a Common Transport Policy (CTP) concept which is calculated to achieve the fundamental purposes of the European Community. One of the most salient features of the EEC Treaty is that the tasks of the Community are set out succinctly in Article 2 of the Treaty which provides inter alia for the adoption of a CTP as provided for in Article 3(1) of the Treaty. This provision is linked to Article 74 which in turn provides that the objectives of the Treaty in relation to issues of transportation would be pursued by State Parties within the parameters of the CTP, which is established by the Council of Europe through secondary legislation.
- 48.
Supra, note 186 (Chap. 2), Article 3.
- 49.
Article 8 places responsibility on a managing body of an airport in which a person with disabilities is, to provide certain assistance with regard to: communicating their arrival at an airport and their request for assistance at the designated points inside and outside terminal buildings; moving from a designated point to the check-in counter; check-in and register baggage; proceeding from the check-in counter to the aircraft, with completion of emigration, customs and security procedures; boarding the aircraft, with the provision of lifts, wheelchairs or other assistance needed, as appropriate; proceeding from the aircraft door to their seats, storing and retrieving baggage on the aircraft; proceed from their seats to the aircraft door; disembarking from the aircraft, with the provision of lifts, wheelchairs or other assistance needed, as appropriate; proceeding from the aircraft to the baggage hall and retrieve baggage, with completion of immigration and customs procedures; proceeding from the baggage hall to a designated point; reaching connecting flights when in transit, with assistance on the air and land sides and within and between terminals as needed; and move to the toilet facilities if required. Where a person with a disability or person with reduced mobility is assisted by an accompanying person, this person must, if requested, be allowed to provide the necessary assistance in the airport and with embarking and disembarking. Ground handling of all necessary mobility equipment, including equipment such as electric wheelchairs subject to advance warning of 48 h and to possible limitations of space on board the aircraft, and subject to the application of relevant legislation concerning dangerous goods. Temporary replacement of damaged or lost mobility equipment, albeit not necessarily on a like‐for‐like basis. Ground handling of recognized assistance dogs, when relevant. The airport must also provide communication of information needed to take flights in accessible formats.
- 50.
Code of Good Conduct in Ground Handling for Persons with Reduced Mobility.
- 51.
The service must be delivered in a harmonised, transparent, non-discriminatory way and must be subject to audits and reviews in accordance with the European Ground Handling Directive. It must improve levels of customer service and safety to PRMs, through a seamless service from quality supplier/s, implemented with quality staff, equipment and a quality organisational structure, operating to meet and exceed prescribed customer service and safety standards.
- 52.
49 U.S.C. 41705. Congress enacted the Air Carrier Access Act (ACAA) in 1986. The statute prohibits discrimination in airline service on the basis of disability.
- 53.
§ 382.7.
- 54.
§ 382.65 stipulates inter alia that each carrier providing scheduled service shall establish and implement a complaint resolution mechanism, including designating one or more complaints resolution official(s) (CRO) to be available at each airport which the carrier serves. The carrier is required to make a CRO available to any person who complains of alleged violations of this part during all times the carrier is operating at the airport. Furthermore, this provision, inter alia, provides that carriers are required to categorize disability-related complaints that they receive according to the type of disability and nature of complaint. Data concerning a passenger’s disability must be recorded separately in the following areas: vision impaired, hearing impaired, vision and hearing impaired, mentally impaired, communicable disease, allergies (e.g., food allergies, chemical sensitivity), paraplegic, quadriplegic, other wheelchair, oxygen, stretcher, other assistive device (cane, respirator, etc.), and other disability. Data concerning the alleged discrimination or service problem related to the disability must be separately recorded in the following areas: refusal to board, refusal to board without an attendant, security issues concerning disability, aircraft not accessible, airport not accessible, advance notice dispute, seating accommodation, failure to provide adequate or timely assistance, damage to assistive device, storage and delay of assistive device, service animal problem, unsatisfactory information, and other.
- 55.
§ 382.31.
- 56.
§ 382.49.
- 57.
A flight means a continuous journey of a passenger in the same aircraft or using the same flight number. The rule provides several examples of what constitutes a “flight” and what does not.
- 58.
Abeyratne (1995), pp. 52–59.
- 59.
O’Keefe (2006), pp. 408–421.
- 60.
Chicago Convention, supra, Article 44 d). All ICAO’s aims and objectives as contained in Article 44 addresses the primeval importance of the air transport product and the need to ensure that it serves the passenger and cargo consignor well.
- 61.
Supra.
- 62.
See Verniero and Zoubek (1999), p. 5 for an analogical definition. See also, White v. Williams, United States District Court for the District of New Jersey, 179 F. Supp. 2d 405, 1/9/02.
- 63.
Chandrashekhar (2003), pp. 215–252 at 215.
- 64.
Threat and Humiliation – Racial Profiling, Domestic Security and Human Rights in the United States, Amnesty International, 2nd Printing, October 2004 at 8.
- 65.
Ibid.
- 66.
No. C 02-02665 CR, in the District Court of Northern California. See 238 F.Supp.2d 1153 (2002).
- 67.
67 F.Supp.2d 554 (M.D.N.C.1999).
- 68.
228 F. Supp. 2d 531.
- 69.
Guerreri (1989), p. 192.
- 70.
426 US 290 (1976); 14 Av LR 17, 148.
- 71.
Id. at 294.
- 72.
Doc 9626, Second Edition 2004.
- 73.
Air Passenger Rights in the European Union, European Commission, Regulatory Affairs Review, January–March 2000, p. 47.
- 74.
On 17 February 2005, EC Regulation 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, entered into force across the European Community. Member States are required to ensure and supervise general compliance by their air carriers with this legislation and to lay down rules on sanctions applicable to infringements that are effective, proportionate and dissuasive.
- 75.
Article 8 provides that passengers shall be offered the choice between: reimbursement within 8 days, by the means provided for in Article 7, of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant; a return flight to the first point of departure, at the earliest opportunity; re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.
- 76.
859 F Supp. 2d. 353 (E.D.N.Y).
- 77.
From December 26th to 27th, 2010, during the height of the holiday travel season, the New York metropolitan area was—somewhat unexpectedly—blanketed with over a foot of snow. John F. Kennedy International Airport (JFK) was closed to air traffic for the worst of the storm. When it reopened, there were continuing problems. Passengers on arriving flights were forced to endure substantial waits after landing before they were able to disembark. Difficulties appear to have been particularly severe at terminals serving international flights.
- 78.
The Convention for the Unification of Certain Rules for International Carriage by Air which will be discussed in some detail in the next chapter.
- 79.
Quoting Reed v. Wiser, 555 F.2d. at 1089–93.
- 80.
Havas v. Victory Paper Stock Co., 49 N.Y.2d. 381 (1980).
- 81.
Eiseman v. State of New York, 70 NY.2d. 175 (1987).
- 82.
Supra, note 76 (this chapter) at 371.
- 83.
- 84.
14 CFR Parts 234, 253, 259, and 399 [Docket No. DOT-OST-2007-0022] RIN No. 2105-AD72.
- 85.
The Vumbaca case, referred to earlier in the text of this chapter was one of the reasons as well as the extended tarmac delays experienced by passengers on international flights operated by foreign carriers at New York’s JFK Airport during the December 2010 blizzard were important factors in the DOT’s decision to extend the tarmac delay provisions to foreign air carriers and establish a four hour tarmac delay limit for international flights. Supra, note 71 (this chapter).
- 86.
Convention for the Unification of Certain Rules Relating to International Transportation by Air, 12 October 1929, 137 L.N.T.S. 11 49 Stat. 3000, TS No 876, ICAO Doc 7838. The Warsaw Convention was later amended by several protocols, none of which changed the substantive provisions of the Convention. The Warsaw Convention establishes a regime of liability where the liability of the carrier is presumed, once a plaintiff claims that he has suffered damage in the hands of the carrier. The carrier has to rebut this presumption. To balance this deviation from normal evidential rules, the Convention has set up limits of the carrier’s liability in terms of monetary compensation payable to the plaintiff if the carrier is unable to rebut the presumption of liability.
- 87.
Miller (1977), p. 154.
- 88.
Ste General Air fret c. Ste TWA Trans World Airlines (1956) 10 RFDA 324.
- 89.
Sonillac v. Air France (1965) 28 R.G.A.E. 15.
- 90.
Id. at 17.
- 91.
(1967) 1 Lloyds Rep. 239 (Guyana Ct. App. 1966).
- 92.
Warsaw Convention, supra, note 86 (this chapter), Article 20.
- 93.
Id. Article 21.
- 94.
Corrigan (1978), p. 25.
- 95.
Clark v. West Ham Corp., (1909) 2 K.B. 858, Readhead v. Midland Railway Co., (1869) L.R. 4 Q.B. 382, Overseas National Airways v. C.A.B., 307 F. 2d. 634, U.S. v. Stephen Bros. Lines, 384 F. 2d. 118, S.M.T. Ltd. v. Ruch, 50 C.R.T.C. 369, Roussel v. Aumais 18 Que. S.C. 474, Thibault v. Garneau (1959) Que. P.R. 377.
- 96.
Warsaw Convention, op.cit. Article 32.
- 97.
Watkins v. Rymill (1883) 10 Q.B. 178.
- 98.
See also generally the common law decision of Thornton v. Shoe lane Parking (1971) 2 Q.B. 163, which upheld the contractual principle that for a contractual clause to be considered applicable the parties to the contract should have the opportunity to read the clause and to dissent from it.
- 99.
Montreal Trust and Stampleman v. CP Air (1976) 72 D.L.R. (3d) 282.
- 100.
An account of this case appears in Lloyd’s Aviation Law, Vol. 15, No. 9 May 11 1995 at 2.
- 101.
49 U.S. App. S. 1305 (1994).
- 102.
See In re Air Disaster at Lockerbie, Scotland, 928 F.2d. 1267, at 1273 (2d Cir. 1991).
- 103.
See Wogel v. Mexicana Airlines 821 F.2d 442 (7th Cir. 1987).
- 104.
Malik v. Butta, unreported. See Lloyd’s Aviation Law, Vol. 12, No. 21, November 1 1993 at 1 for a discussion of this case.
- 105.
Unreported at the time of writing. This case is discussed in Lloyd’s Aviation Law, Vol. 13, No. 22, November 15, 1994 at 3–4.
- 106.
Id. at 4.
- 107.
See Abnet v. British Airways PLC, cited in Lloyd’s Aviation Law, Vol. 3, No. 2, 15 January 1992 at 4–5.
- 108.
773 F Supp. 482 (D.D.C. 1991).
- 109.
Id. 484–485.
- 110.
474 F. Supp. 532 (1979).
- 111.
Id. 534.
- 112.
Archibald v. Pan American World Airways Inc., 460 F.2d 14, 16 (9th Cir. 1972).
- 113.
Id. 17.
- 114.
49 U.S.C.A. sec. 1374(b).
- 115.
Mahaney v. Air France, supra, note 110 (this chapter) at 534.
- 116.
821 F. 2d. 442 (7th Cir. 1987).
- 117.
Id. 444.
- 118.
769 F. Supp. 537 (S.D.N.Y. 1991).
- 119.
Id. 540.
- 120.
Convention for the Unification of Certain rules for International Carriage by Air done at Montreal on 28 may 1999. The Convention entered into force on 4 November 2003 109 States Parties have ratified the Convention.
- 121.
The Special Drawing Right (SDR) is an international reserve asset, created by the International Monetary Fund (IMF) in 1969 to supplement its member countries’ official reserves. Its value is based on a basket of four key international currencies, and SDRs can be exchanged for freely usable currencies. With a general SDR allocation that took effect on August 28, 2009 and a special allocation on September 9, 2009, the amount of SDRs increased from SDR 21.4 billion to around SDR 204 billion (equivalent to about $309 billion), converted using the rate of September 4, 2014.
- 122.
In Joined Cases C-402/07 and C-32/07, Fourth Chamber, 19 November 2009.
- 123.
- 124.
ECJ in case C-549/07.
- 125.
- 126.
- 127.
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Abeyratne, R. (2015). Rights of the Passenger. In: Aviation and International Cooperation. Springer, Cham. https://doi.org/10.1007/978-3-319-17022-0_3
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