The Plane is Broken But Don’t Blame Us, it’s Force Majeure

By | July 25, 2010
SAN FRANCISCO - JANUARY 21: Southwest Airlines...
Image by Getty Images via @daylife

Southwest quietly made a change to its contract of carriage last month, making us here at Flight Wisdom wonder if being forced to announce material changes in the contract of carriage should be part of the DOT’s proposed rulemaking.

The Arizona Star reports that Southwest Airlines has added mechanical difficulties to the definition of force majeure, of acts of a supreme deity, thus allowing it to claim mechanical problems on its planes are not something they are responsible for. However, we looked more closely at the language.

“Force Majeure Event: Whenever advisable due to Force Majeure Events outside of Carrier’s control, including, without limitation acts of God, meteorological events, such as storms, rain, wind, fire, fog, flooding, earthquakes, haze, volcanic eruption or any other event, including, without limitation, government action, disturbances or potentially volatile international conditions, civil commotions, riots, embargoes, wars, or hostilities, whether actual, threatened, or reported, strikes, work stoppage, slowdown, lockout or any other labor related dispute involving or affecting Carrier’s service, mechanical difficulties, Air Traffic Control, the inability to obtain fuel, labor or landing facilities for the flight in question or any fact not reasonably foreseen, anticipated or predicted by Carrier.”

Now, this is all well and good. But we choose to focus in on the last part of it…”not reasonably foreseen, anticipated, or predicted by Carrier.” Now, in our opinion, for a carrier to not be responsible for a situation, they have to prove they had acted in a responsible manner. And is that the type of problem with force majeure overall.

If you schedule your planes to operate without sufficient slack in the system to overcome a weather delay or such, is that the fault of the weather, or the fault of the planning? You can’t keep a plane at the ready in case of emergencies, but what can you do? Look at some of the other examples…force majeure is an extraordinary event or circumstance, by definition. The inability to obtain fuel, labor, or landing facilities, for example, would only be a force majeure under the most extreme cases. By putting these statements into the contract of carriage without clarification or restriction, and airline could define it in a manner in their best interests. Airlines should have to more narrowly define something like this.

Legally, for an event to be thus defined, you must prove that you have nothing to do with the event’s happening, and that if the event could be foreseen, you must have prepared for it. and that the consequences of the event must have been unpreventable. An airline should have to back up any declaration of a force majeure event by proving it is indeed, out of their control to the satisfaction of some impartial standard. We hope Southwest Airlines, who has a customer friendly reputation will do so, but we wonder if this is not something the DOT might consider in a proposed rulemaking…the right to challenge the definition of an event as force majeure.

We tend to agree with the expert the Star cited, Robert Mann, keeping a fleet mechanically sound is within the control of any airline, and letting Southwest add this language, even if they don’t use it, sets a bad precedent. And other airlines are likely to follow if Southwest can get away with it.

And a Supreme Deity probably has better things to do than go after Southwest Airlines planes.