[jimworcs]

PHX

While not a "mea culpa" I think Larry Kellner's statement was sufficiently conciliatory without making a statement that might later come back to bite Continental in the butt once the lawsuits begin.

One of the most distasteful and frankly sometimes counter-productive aspects of the modern litigous society in the US, is the fear of making even the most rudimentary apology "in case there might be litigation". Ironically, there are studies which show that litigation increases in the absence of one. In Sweden and in the UK there have been reductions in lawsuits against health professionals where they have adopted a policy of openly acknowledging errors and apologising very early in the process. This has the effect of reducing the build up of anger and resentment which feeds litigation.

I'm assuming and would expect an apology will be forthcoming from Mesaba and Delta.

They have released a statement disagreeing with the DOT and looking forward to the final report, when they seem to think the DOT will reverse it's preliminary findings and clear it. All this posturing, blame and counter-blame adds to the sense of helplessness in passengers and hopefully could lead to legislation.

As the Transport Secretary himself stated, there was a total loss of common sense in this issue. These passengers had all been screened before they got on the plane. Had the airline bothered to talk to the airport, which I understand they didn't do until much later, this could have been sorted. Instead, a load of "jobsworth" stood around, not caring about the plight of their customers. Decisions were not made because even senior people abdicated their responsibility.

Butch:
I agree that an adminstrative instrument will not impress the airlines and they will do as they do now and ride roughshod over every one. Making it a criminal offence with a civil remedy would and should get them sharpening their act.

[The_Judge]

I am delighted to see that the blame has been placed on Mesaba. I am a bit biased as in late 2006, early 2007, NWA decided to outsource dozens of smaller cities to Mesaba, Express I and any other vulture who would bid on taking it. Rochester and my city, La Crosse (about a 1 hour drive east) went to Mesaba. NWA had been in these cities for decades.
I will go out on a very short limb and say that if NWA had not outsourced to a company that hires kids and obviously inadequately trains them, this would NOT have happened. Anyone with any common sense knows that if a domestic flight diverts to an airport, there is absolutely zero reason why these passengers cannot deplane. Re-boarding would be a sticky issue. My take would be if they are held in a sterile area there should be no problem but I'm sure the TSA would disagree with me. My point, really, NWA is at fault for outsourcing to a company that has employees that have no clue what's going on.

[jimworcs]

We should wait for the final report... as more information is emerging all the time. How about this gem?

The Rochester airport took in another diverted flight, a Northwest plane from Phoenix, just before Flight 2816 landed. The more than 50 passengers on that plane were placed on a bus and made it to Minneapolis by 1:30 a.m.

Leqve said the Delta manager in Rochester offered space on the bus to Continental, which declined."

According to NBC news today, CO and Expressjet are NOT denying this. Rather, they're apologizing, and giving all the pax vouchers for free flights in the future. This doesn't look like the actions of an innocent party.

So Continental and Expressjet were offered an alternative for the passengers, but did not even offer the passengers this choice, so that those who wished too could take the bus to Minneapolis... not so sure that CO or Expressjet are off the hook here.

[PHXFlyer]

Originally Posted by jimworcs

We should wait for the final report... as more information is emerging all the time. How about this gem?

So Continental and Expressjet were offered an alternative for the passengers, but did not even offer the passengers this choice, so that those who wished too could take the bus to Minneapolis... not so sure that CO or Expressjet are off the hook here.

As you say, the final report will be the most telling. However, as I said, listening to the recordings and reading the timeline I don't think even if space on the one bus sent to Rochester was offered (and there was nothing in the "official" record to indicate that it was) that it would not have been a good option for the following reasons:

1. Mesaba (dba Delta Connection) repeatedly refused requests by ExpressJet (dba Continental Connection) to disembark passengers at a jet-bridge. They were told they could park at a stand adjacent to the terminal building and walk across the ramp into the building but the pilot deemed that option unsafe since there were still active thunderstorms in the area. Also, one slip and fall on the wet tarmac or stairs and both ExpressJet and Continental could face a huge lawsuit.

2. The Northwest aircraft from Phoenix was an Airbus A320. The seating capacity of a Northwest A320 is 148. They would have us believe that there were only 50 on that flight? Perhaps there were more but not all wanted to take the bus to Minneapolis? Again, the final report will, hopefully, have more detail. Even if there was room on the (one and only) bus and assuming the headcount on that bus was 50 from the Northwest Airbus, how many more could that bus have accommodated? There were 47 on the Continental Express flight. I Googled some coach companies in the Rochester/Minneapolis area and the largest coach I could find carries 62 passengers. Now with 50 of those seats already spoken for and a planeload of 47 what do you do? It's easy to say 12 seats is better than nothing but how do you tell 3/4 of your passengers "sorry, you're still stuck." Furthermore how do you determine who goes and who stays? Women and children first?

3. At the time the bus option could have been discussed, ExpressJet dispatch/ops was still hopeful that the weather might break providing a safe window for the plane to takeoff and continue on to MSP. Unfortunately that break never happened and the end result was the crew timeout.

[jimworcs]

My point was that this was offered, but neither CO or ExpressJet mentioned this in their "pass the buck" press releases. It also causes me to question the premise for keeping the hostages on the plane. What if the Captain had accepted and allowed the hostages to take the bus? How could that have been offered as an option, if the reason for the hostage situation was that it was impossible to disembark for security reasons? How did the A320 passengers get round the security dilemma? There is a lot more to this story than meets the eye... and I look forward to the full report.

The scrambling of Delta, Continental's and ExpressJet's CEO's rushing to defend themselves, "support the passengers" and co-operate with the DOT to ensure it doesn't happen again are the actions of a desperate rearguard action to try and stop a flyers rights bill. This is the only solution and we should not accept a rule change by the DOT which does not have the power of the law behind it.

[PHXFlyer]

DOT 182-09
Tuesday, November 24, 2009

The U.S. Department of Transportation today levied a total civil penalty of $100,000 against Continental Airlines and ExpressJet Airlines for their roles in causing the passengers on board Continental Express flight 2816 to remain on the aircraft at Rochester International Airport for an unreasonable period of time on Aug. 8, 2009. Continental also provided a full refund to each passenger and also offered each passenger additional compensation to tangibly acknowledge their time and discomfort. In addition, DOT assessed a civil penalty of $75,000 against Mesaba Airlines, which provided ground handling for the flight, for its role in the incident. These precedent-setting enforcement actions involve consent orders that reflect a settlement by the carriers of violations alleged by DOT’s Aviation Enforcement Office. They are the first enforcement orders punishing carriers for extended tarmac delays, as well as the first time a carrier acting as a ground handler for another airline has been punished for failing to properly help passengers leave an aircraft during an unreasonably long tarmac delay.
“I hope that this sends a signal to the rest of the airline industry that we expect airlines to respect the rights of air travelers,” said U.S. Transportation Secretary Ray LaHood. “We will also use what we have learned from this investigation to strengthen protections for airline passengers subjected to long tarmac delays.”

[jimworcs]

Not good enough.. these "consent orders" were agreed by the airlines to try and avoid the alternative of actual legislation. Fines are not good enough, we need regulation AND appropriate compensation, which is at a punitive level, to the customers, not paid to the DOT.

[PHXFlyer]

The passengers on those flights were given full refunds and also received additional compensation from Continental. Unless they signed away their rights to get that additional compensation they are still able to sue Continental, ExpressJet and Mesaba for damages.

[The_Judge]

These fines will be reduced to peanuts in negotiations, as well. Senior managers have told me this. NWA will get a fine for 10k or some amount and it will be negotiated down to about a grand. So the 100k will mostly likely be reduced greatly. The 75k fine against Mesaba, I'm not so sure about.

Fines against airlines are like fines against athletes. These fines are miniscule and make not a dent in their wallet or thinking.

[Butch Cassidy Slept Here]

Judge's description of the fine process matches exactly with my understanding. It's also my understanding the government agrees to deep cuts in the original fines based on the understanding there will be no repeat incidents. So it will be interesting to see what happens if Express Jet or Continental ARE caught perpetrating this misery again. Remember, winter has just begun.

As I've indicated in previous posts, one or more people will need to die (ie: lack of medical attention, or same denied by flight crew) before the issue of tarmac strandings will be taken seriously. Thus, "tombstone regulation" probably rules in this instance.

[Jetliner]

Except that CO really didn't perpetrate it in this case either. The plane landed, and Northwest refused to give them a gate. And due to lightning, the captain decided that it was not safe for the passengers to deplane without a jetway. So what message does this fine send to ExpressJet???? In future, disregard passenger safety and get them off at all cost. So, in this situation, if a passenger gets struck by lightning, it's OK - afterall, they got them all off of the plane. There's your tombstone regulation. NW/Masaba should have taken a greater hit on this one.

[Butch Cassidy Slept Here]

Jetliner: You should file a notice of appearance, as Continental's attorney, at an appeal proceeding regarding DOT's ruling. I guess you'll have no trouble in getting the entire consent order set-aside! Also I'm sure DOT's lawyers will be intrigued with your arguments! I see even the DOT dare not challenge your "authority!"

Seriously, it will be interesting to see what, if anything, Delta (on behalf of its Mesaba subsidiary) will have to say about this. The current CEO of Delta was a staff attorney for Continental for a few years.

[Butch Cassidy Slept Here]

The DOT, in fining (or settling) with Continental appears to have applied the concept of "agency law." That is, the act of the agent---Express Jet in this instance---is the act of the principal---Continental Air. As the DOT noted, Continental marketed this flight. Continental also allowed its code ("CO") to be used to identify this flight. Thus the DOT was also saying to Continental---'We are holding you responsible for the acts of your contractors.' As an analogy, a similiar principle applies when one hires an accountant to do their Federal income tax. If the accountant makes a mistake, and the IRS imposes penalties and/or interest, YOU are, ultimately, responsible for paying-up. However, in both instances, the "principal" might have the ability to sue the "agent" to recover any losses.

Perhaps the airline people on here might know the answer to this question: Can we expect Express Jet to operate some flights, for free, as compensation to Continental??

[jimworcs]

This is fig leaf designed to avoid regulation. The DOT has used tenuous authority to impose these penalties.. effectively suggesting that the penalties are for "deceptive" practices because Continental promised passengers that after 3 hours they would be allowed to disembark. Mesaba are being penalised for mis-leading ExpressJet and CO about the reasons why they would not provide a jetway. All the punished have agreed to be punished... on very dodgy legal grounds. The reason they have agreed is the alternative is far less palatable... regulation. I wonder why they are so desperate to avoid regulation?

Jetliner:
Continental failed to carry out it's own policies in a number of regards. First, it breached the 3 hour promise made to customers in it's charter. It also failed to "escalate" the problem up the Executive chain. This failure meant that insuffient executive attention or pressure was placed on Mesaba to address the problem. That is why they have agreed to the penalty. They are culpable and deserve the penalty.