Aug 062015
 
If we are to allow pressure groups to limit what we do, we'll all end up as colorless drab automatons, like was formerly the case in Communist China.

If we are to allow pressure groups to limit what we do, we’ll all end up as colorless drab identical automatons, like was formerly the case in Communist China.

The US airlines (and most other airlines elsewhere in the world as well) are generally considered to be ‘common carriers‘.

The other two types of carriers are contract carriers and private carriers, in case you were wondering; and if you want to know even more, being a ‘common carrier’ is a status that also applies to land and water transportation of both people and freight, occasionally to utilities (a recent debate has centered around whether or not internet service providers are common carriers), and even in some situations to amusement park rides (because they transport you on rides).

One of the defining elements of being a common carrier, and an obligation imposed on it, is to accept passengers (and their accompanying bags and/or freight) for carriage without any form of bias or discrimination.  Gone are the days when one’s ability to be transported was based on one’s race or religion – now as long as you pay the fare and comply with the procedural requirements, you must be accepted.  (See for example this and this article).

Certainly, a case could be made that an airline could and even should refuse to transport a person if the transportation was aiding or abetting an illegal act or closely related to an illegal act.  Presumably an airline could refuse to transport a fleeing felon, and similarly it could refuse to transport a cargo of contraband or illegal drugs.

Interestingly however, the airlines try to avoid those sorts of issues as much as they can, and don’t address them at all in their contracts of carriage.  The reason for this is one of liability – if they say they can refuse to transport illegal things and fleeing fugitives, that brings them perilously close to accepting liability if they do accept such things and people.  So the airlines prefer not to get into the middle of such things.

But if a passenger is wishing to travel for lawful purposes, pays the appropriate fare, and if his baggage is also not obviously illegal, not dangerous, and not inappropriately packed, the airline is obliged to accept the passenger for transportation.

So what to make of the announcements this week, first by Delta, and quickly followed by United, and also American and Air Canada (neither of which even fly to Africa but wanted to get their share of free publicity), that they will no longer transport big game trophies back from Africa to the US?  Big game hunting, when properly licensed and permitted, is not illegal in either Africa nor the US, and neither is taxidermy and the collecting or transporting of trophies.  For sure, many people find this offensive, but it is completely legal and a dead animal head is of course absolutely not a danger to anyone when transported as cargo in a plane’s hold.

Probably most Americans view the hunting of noble and sometimes endangered big game animals in Africa repugnant, and many of these people will now unthinkingly applaud the ‘right thinking’ actions of the airlines.  But should we really be so pleased?

It isn’t all that long ago that many people in Germany approved of anti-Semitism and constraints on the freedom and movement of Jews.  It was even more recently that many people felt it was right and proper for African-Americans to go to the back of the bus, if allowed on at all.

The whole overlooked concept of a free society is that it allows people the freedom to do things that the majority of people don’t like.  As long as it isn’t harmfully impacting on the majority, other than affecting their sensibilities, free societies rightly choose to allow marginal activities.  To do otherwise would impact us all, because for sure, we all have a range of interests, tastes and activities, and if everything were to be subjected to what the most vocal elements of our society accept/reject, what would happen to all manner of things we variously consider part of our ‘life, liberty and the pursuit of happiness’ and our inalienable rights and freedoms?

If we are to be sensitive to the feelings of everyone around us, how long will it be before we can no longer eat beef (for fear of offending the Hindu communities) or pork (for fear of offending the Muslims) or indeed, any meat at all (for fear of offending vegetarians)?

Many people would consider trance or rap music repugnant.  On the other hand, other people think it is a crime to spend billions of dollars on highbrow music and opera when within a block or two of the palatial opera houses and concert halls, homeless people are starving on the streets.  Would a consensus constraint on music see us all limited only to ‘elevator music’?  Will flight attendants demand to plug in to our MP3 players and check on what music we’re listening to?  Isn’t that very much the same thing as restricting what it is we carry in our suitcases in the passenger hold?

The same can be said for literature and the other creative arts, where today’s edginess is also often synonymous with new forms of expression and become, in time, treasured examples of high quality classics.  ‘The Rite of Spring’ or ‘Lady Chatterley’s Lover’ have both survived their initial accusations of being obscene and despicable.

Remember pictures of communist China or North Korea?  Everyone wearing the same bland clothing – the same color and style in an anxious desire/requirement to conform?  Is that what we wish to become?  Are we to be expected to ‘celebrate our diversity’ but only as long as it remains the same as everyone else?

Okay, I don’t seek to equate big game hunting with artistry.  But if we are to allow the airlines to set their own standards for who and what they will carry, based on demagoguery and vocal pressure groups, the next thing you know, they’ll be restricting people wearing slogan bearing t-shirts they deem to be offensive or frightening, and imposing restrictions on our ability to eat the foods (and nuts) we wish to eat….. oh, wait!

There’s a curious counter-current to this.  At the same time the airlines are asserting their right to decide who and what they’ll fly, the courts are saying that bakers have no choice as to who they’ll bake cakes for.  Why one law for bakers, but another law for the airlines?

Do Airlines Really Have an Obligation to Take Bags as Well as Passengers?

Yes, they do, for two reasons.

First, as a common carrier of passengers, a refusal to accept certain types of luggage items might effectively become a form of bias or discrimination against certain types of passengers.  To give an extreme example, a refusal to carry bags that contain ladies’ clothing would discriminate against women.  A refusal to carry skis would discriminate against skiers, and so on.

Second, most airlines are not only common carriers of passengers, they are also common carriers of freight, and as common freight carriers, they have a similar obligation to carry all freight, subject only to the obvious constraints of legality, safety, etc.

What Airlines Do and Don’t Allow as Baggage

So what do airlines allow you to take as baggage?  How large a list of strange exclusions is there?

Well, actually, the list was formerly zero, and now – as soon as the airlines update them – will contain only one item.  Just about anything that is safe, including hunting goods, consistent with state and federal laws, and even antlers and deer heads.

To look, by example, at United Airlines, you can see their policies in general here, and in legal form as part of their Contract of Carriage, here (Rule 23 on page 20).  There are exclusions and restrictions for dangerous items and special requirements for fragile items, but there are no other ‘value system’ or ‘lifestyle’ type exclusions.  If you want to transport other offensive material (perhaps, for example, pornographic magazines), that is allowed without restriction.

It is only animal remains from Africa that are prohibited without some type of underlying operational/safety/legal justification for the ban.

Although the good news is that, today, this is a prohibition that will probably not affect any of us, ever; it is also the thin end of the wedge and a negation of the airlines’ obligations as common carriers.  Today, it is dead lions.  No big deal, perhaps.  But what will it become tomorrow (promotional materials for an extremist political party perhaps – a concept we’re dangerously close to embracing already and which would be enthusiastically endorsed by all opposed to whatever the political group was).  But then, all too soon after that, what will be next.  Electioneering materials for the Democratic party, maybe!

These things never stop at one only safely obscure/irrelevant example, they evolve and extend.

Are we to have airline officials standing alongside the TSA screeners, going through our bags, and making value judgments as to the appropriateness of the items within them?

Do you really want to allow the airlines to decide what we can and can’t do?  You shouldn’t, and if the majority of the US citizenry wish to prevent their fellow citizens from big game hunting in other countries, the way to do that is by Act of Congress, not by airline edict.

PS – An irreverent postscript about Cecil (the lion in question)

As an aside, the media furore over the slaying of Zimbabwe’s ‘most loved’ and ‘legendary’ lion needs to be placed in perspective.  Have you seen any proof as to the most-loved and legendary status of this otherwise apparently totally ordinary lion?  Indeed, this Reuters article seems to rebut the lion’s pre-eminent status and this New York Times article points out that the outrage is all from the first world, and none of it shared by the locals in Zimbabwe.  Sure, the lion now has its own Wikipedia page, but that page was only created after its death.

It is also relevant to note that it is not illegal to hunt lions and other wild game in Zimbabwe or many other African countries.  Some animals are protected, and hunting permits are required, and while there is some ambiguity as to the lawful nature of this particular hunt, the hapless dentist credibly believed that the $50,000 fee he had paid included all permits and permissions.

While lions are somewhat endangered, they are not under threat from big game hunting – a ruling re-affirmed by the US Fish and Wildlife Service late last year.  Instead, their three problems are habitat loss, loss of prey to the bushmeat trade, and human-lion conflict, and the underlying ultimate problem is the explosion of population and encroachment/impact of African people into the traditional lion habitats.

If people wish to be outraged about the deaths of lions, why not be outraged at the factors that are killing lions by the thousands and tens of thousands, rather than by acts that selectively and infrequently kill lions one at a time.  Again, I’m not defending the dentist who killed this lion or the general ‘sport’ of big game hunting, I’m simply asking that it be put in perspective.

  4 Responses to “US Airlines Refuse to Carry Legal Safe Baggage”

  1. Very nicely laid out facts without all the emotion in the press and social networks.

  2. The killing of a hunted lion will become much more of an emotional issue when a name is given to an animal. With all the cat owners in America, I’m willing to bet that most of these people are therefore extremely upset about Cecil’s sad demise.

  3. I came across your article this afternoon and thought you might be interested in our lawsuit filed this past week in the Northern District of Texas. We are hopeful this will lead to quick and meaningful discussions with the airlines.

    James C. Hudson
    attorney for plaintiffs

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