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> So does this apply to this case - yes, even though this individual was removed to accommodate UA employees the fact was there were more passengers holding valid tickets than there were available seats

There were an equal number of passengers holding valid, confirmed tickets and available seats. Until United decided to reduce the number of available seats to make room for employees who did not hold valid, confirmed tickets.

> the language of the contract says "boarding" ... Is there really a world of difference between not being let on the plane and being asked to leave once you've taken your seat. I don't think there is.

That is ridiculous. The act of getting on the plane and taking a seat is literally the definition of the word "boarding". Once you have boarded, you can no longer be denied boarding because you've already done it. They didn't redefine the term to mean something weird in the Rule 1 - Definitions section, so they need to abide by the normal meaning of the term.

You are defining "boarding" narrowly as the act of getting onto a plane. I think it's clear that wasn't what's meant by the contract and it is only being interpreted in this narrow way because people are angry with United. Reading boarding in the contract suggests that it it intended to refer to the whole process before the flight.

The contract says "more passengers than available seats" not "more passengers than seats" if it were the latter your argument would be valid, in this case, seats may be unavailable for any number of reasons including there were other passengers or employees who took priority - not great customer service and I won't be flying United anytime soon - but from a standpoint of legal liability, it is well within the wording of the contract.

You're wrong. "boarding" comes from the nautical world and has a specific meaning. This is one of the times where the colloquial meaning and legal meaning are identical. You "board" when you enter the vessel/aircraft. There is a reason they check your ticket at the gate: because that's the legally accepted procedure for verifying you are a paying passenger and transitioning from the "not-boarded" to "boarded" state. Different rules kick in (both by contract and by law) once they scan your ticket and let you climb aboard the craft.

The Dr in this case had boarded the plane.

If United wanted to bump passengers to make room for crew (ignoring whether that was permissible under the "overbooked" definition), they needed to do it before they let the passengers on the plane.

Furthermore that was an entirely knowable event. The moment they started letting people on the plane they already knew the crew members were running late. They could have had the gate agents ask for volunteers before anyone got on. They screwed up twice.

There is no defense of United to be had here. Everyone can stop apologizing for them now.

IAAL. Your analysis is quite wrong. The employees did not have valid, reserved, ticketed and confirmed seats. The rest of the contract even explicitly says employees don't, and may be removed as a result.

From the CFR:

"Confirmed reserved space" means space on a specific date and on a specific flight ... confirmed as being reserved for the accommodation of that passenger.

The employees had no confirmed and reserved space.

They also should have been the first to be removed. This is because the law requires it. The relevant CFR says that when you deny boarding or refuse transport, you must do so in a way as to minimize the number of people with valid, reserved and confirmed seats removed.

This means the employees, who did NOT have such seats, would be required by law to be removed first.

They even made it worse for themselves, it also says:" No employee or agent of UA has the authority to alter, modify, or waive any fare rules or any provision of the Contract of Carriage unless authorized by a corporate officer of UA. UA’s appointed agents and representatives are only authorized to sell Tickets for air transportation pursuant to approved fares, rules, and regulations of UA. "

So none of the people involved could have changed the rules :)

Employees traveling gratis as a perq are not the same as crew positioning for duty. The latter have valid reserved space issued by the company travel department, and their boarding priority is "must ride"

United's screwup was trying to remove the passenger. If he had been denied boarding there would be no issue.

There are zero provisions in their contract of carriage for must-ride (let's ignore this), but more importantly, they cannot change the amount of confirmed and reserved space after they confirmed and reserved it at check-in. There are no provisions for unconfirming and unreserving, by law.

So sorry, if they tried to confirm and reserve tickets for the crew, "must-ride" or not, after they checked in the flight as full (not after they boarded it), they would still be screwed. Denying boarding would still be breach on their part, because the flight would not actually have been oversold. This is because they could not have validly confirmed and reserved a seat for their must-ride once the flight is fully confirmed. Period, full stop. They could only reserve one (and worse for them, https://www.law.cornell.edu/cfr/text/14/250.2a says those people, the must-ride, would be the first to go).

They don't get to just mark all the tickets they like confirmed and reserved and remove other passengers. Otherwise, these provisions would all be meaningless :)

They cannot actually validly confirm it unless their is actually space on the plane. The only case this occurs otherwise in practice is an accident (IE ie system screwup assigning two people, same seat). Otherwise, they just don't confirm them until you get to the gate, and you are holding a reserved but not confirmed (I believe that is the correct way, and not the other way around) ticket.

This also means, as you might expect, most of their "Oversale" situations are not really oversale as defined by federal law (and they can't really deny boarding for them). They are really "we issued more reservations than we can confirm for this flight". and they would like to get to confirm everyone who really wants to go. This is how they avoid most of the issues in the first place.

That's also particularly why when those people go to check in, they don't confirm and issue reserved boarding passes. They tell them to see the gate agent. Because they have not actually confirmed the reserved space :) So it's only actually oversold if they just issue confirmations to everyone who checks in, instead of not actually confirming :P.

That's why it's confirmed and reserved (for that specific passenger/flight/time/seat) and not "kinda confirmed and kinda reserved".

If you actually follow the flow chart steps the contract of carriage lays out, and compare it to with what the CFR says, they are pretty much out of options.

Now, they certainly would have done it anyway, but they would still lose the lawsuit. Again, by law, at the point they have confirmed and reserved all the seats, their only actual legal recourse is to find volunteers.

The counter argument would be that the Dr Dao incident was "refusal of transport": https://www.united.com/web/en-US/content/contract-of-carriag... because no oversell happened. You'll see none of the reasons to invoke rule 21 are valid in this case.

Or, you can argue that laws and regulations outside of the contract of carriage apply. I don't think this is a case where just the United contract of carriage settles it. There are actual aviation lawyers saying things like "this is very gray".

as I said before oversell is defined in the contract as more passengers than available seats, it is not defined as more passengers than seats. Some of the seats were unavailable because they were given to airline employees - this, while poor customer service, is well within the defined terms of the contract.

"Oversold Flight means a flight where there are more Passengers holding valid confirmed Tickets"

Sorry, it's not that easy. Employees flying non-revenue don't have "valid confirmed Tickets". At best, they have something called a "must ride" pass.

That also doesn't address what "Boarding" means. Can you "deny boarding" to someone already on board? If so, are you using the various other references to "board/ed/ing" in the same light in the contract?

For what it's worth, I'm not 100% convinced I'm right here. I'm not a lawyer. But there are real aviation lawyers saying this looks very grey. That's why I'm suspicious of opinions saying this is a simple matter.

IAAL.

This is again wrong, you have skipped the important part of the oversold definition. It says "Oversold Flight means a flight where there are more Passengers holding valid confirmed Tickets that check-in for the flight within the prescribed check-in time than there are available seats."

This was not the case. The employees did not have valid confirmed tickets, and they did not check in within the prescribed time anyway. United does not even dispute this, because they can't. They could not have legally confirmed a ticket at that point.

You can't just eliminate the "valid, confirmed ticket" part. It is the actual important part.

"More Passengers holding valid confirmed Tickets... than there are available seats."

If crew repositioning granted those four employees "must ride" passes, could United not make the argument that those four seats were then not "available" per that definition?

So: 70 ticketed passengers, 70 physical seats on the plane. Four employees arrive for repositioning. Now you have 70 ticketed passengers, 66 available seats. By the definition in the contract, there are more ticketed passengers than available seats, so the flight is oversold.

The one bit that I think does change this is the part I left out in the ellipsis: "that check-in for the flight within the prescribed check-in time". By the time they tried to remove people from the plane, the "prescribed check-in time" may have ended, so you could make the argument that, when check-in ended, there were still 70 available seats. But maybe check-in hadn't ended, so who knows. It also isn't clear from the wording if my interpretation here is valid: the check-in window may not limit the time during which the number of available seats is determined.

Also consider another "availability" scenario: 70 ticketed passengers, 70 seats on the plane. All 70 passengers get on, but 1 passenger finds that their seat is damaged. The crew determines that the damage to the seat cannot be repaired in such a way as to legally fly someone in the seat, at least not in the time they have. Now they have 69 available seats and 70 ticketed passengers, all of whom who have technically "boarded". Let's assume there are only enough jump seats for the FAs, and the flight can't leave one behind and fly without (assuming it's even legal to fly a passenger in a jump seat). What do they do? Obviously in this case the passenger is going to be more cooperative, because they physically do not have a seat to sit in, but is it differently legally? (Though perhaps this situation would fall under Rule 21, Section H, "Safety"?)

"If crew repositioning granted those four employees "must ride" passes, could United not make the argument that those four seats were then not "available" per that definition? "

No. Because by the point that happened, they had ticketed, confirmed, and reserved all of the space.

By definition, it couldn't be confirmed and reserved space if they had reduced the number of available seats ahead of time, but they didn't. They marked everyone else as confirmed and reserved. There is no provision for changing the number of seats after the fact. The number of spaces on the flight is actually fixed ahead of time, again, by law ;)

This is why united's contract of carriage says: "A reservation for space on a given flight of UA is valid when the availability and allocation of such space is confirmed by UA and entered into the carrier’s reservations system. "

Note: ahead of time.

it continues: "Subject to payment or other satisfactory credit arrangements, a validated Ticket will be issued by UA or the authorized agent of UA indicating such confirmed reserved space provided the Passenger applies to UA or the authorized agent of UA for such Ticket within the Check-In Time Limits"

and " Once a Passenger obtains a Ticket indicating confirmed reserved space for a specific flight and date either from UA or its authorized agent, the reservation is confirmed even if there is no record thereof in UA’s reservation system."

There are no provisions for undoing this. At the point they confirmed it at check-in, it's confirmed and reserved, period. No takebacks.

Further, there are no provisions for "must-ride" tickets in the contract of carriage.

They can't even make the argument they gave them zero fare tickets. The CFR, again, says " A zero fare ticket does not include free or reduced rate air transportation provided to airline employees and guests."

They pretty much have no way out of this.

Thank you for the explanation. This was the last possible hole I could think of, and it's nice to see it closed.