1. Liability of Air Marshals, Crew, and Passengers who Subdue an Unruly Passenger
Michael Jennison Assistant Chief Counsel International Law FAA
McGill Conference on International Aviation Liability and Insurance 18 April 2015

3. Overview Tokyo Convention protections US statutory protections
Effects of Montreal Protocol

4. Tokyo Authorities for Air Marshals, Crew, and Passengers
Two categories: Air marshals are passengers
Authorities are set out in Article 6(2)
The aircraft commander may require or authorize the assistance of other crew members and may request or authorize, but not require, the assistance of passengers to restrain any person whom he is entitled to restrain. Any crew member or passenger may also take reasonable preventive measures without such authorization when he has reasonable grounds to believe that such action is immediately necessary to protect the safety of the aircraft, or of persons or property therein
Provision of Technical Assistance to Civil Aviation Authorities for Safety Oversight of International Commercial Air Transportation Including by Commercial Technical Assistance Providers

5. Tokyo Protections Article 10 This is not “immunity”
For actions taken in accordance with this Convention, neither the aircraft commander, any other member of the crew, any passenger, the owner or operator of the aircraft, nor the person on whose behalf the flight was performed shall be held responsible in any proceeding on account of the treatment undergone by the person against whom the actions were taken
This is not “immunity”
Actions must be necessary and reasonable
Doesn’t apply to third parties

7. US Statutory Protection
An individual shall not be liable for damages in any action brought in a Federal or State court arising out of the acts of the individual in attempting to thwart an act of criminal violence or piracy on an aircraft if that individual reasonably believed that such an act of criminal violence or piracy was occurring or was about to occur. 49 U.S.C. § 44903(k)
Actions not required to be reasonable. Applies to third parties as well as the unruly passenger
No case law
There is also the Supreme Court doctrine of qualified immunity for public officials

8. Effects of Montreal Protocol
US delegation was foiled in pursuit of a specified role and protections for air marshals
Result was determined by regional power politics, not defined national interests
Protocol provides less authority and protection for air marshals than they have as “passengers” under Tokyo
Protocol may go into effect (22 parties) but unlikely ever to be widely subscribed

9. michael.b.jennison@faa.gov +1.202.267.0501