In our earlier article Unruly Airline Passengers [eTN April 10, 2014] we noted “Over two million pets and other live animals are transported by air every year in the United States including pet dogs [see Ing v. American Airlines, 2007 WL 420249 (N.D. Cal. 2007) (Willie, a young English Bulldog expired shortly after being transported to San Francisco; “When Willie was delivered he was in distress and breathing shallowly. As the owner held Willie in his arms, the owner wished to rush Willie to a nearby animal hospital. American Airlines refused to allow Willie to be released. Willie died soon thereafter. American Airlines asserts that its liability is limited to fifty dollars by the air waybill”)] and cats and other interesting animals such as allegedly pet rats [see Giambattista v. American Airlines, Inc., 2014 WL 1116894 (E.D.N.Y. 2014) (employment discrimination action; complaint dismissed; “According to the plaintiff…two of her co-workers…Both flight attendants-reported to the…(‘ICE’) and to the Defendant (air carrier) that they believed that the Plaintiff had illegally brought her pet rat on board an international flight”) and cockatoos [see Richman v. USAir, Inc. (passenger not permitted to keep pet cockatoo outside kennel during flight)].
Tough Going For Some Animals
As demonstrated by the sad demise of Willie the Bulldog, conditions on board commercial aircraft have been problematic [see Travel Law § 2.07-Transporting Pets and Service Animals]. For example, in Reeves, When Dogs Must Fly, N.Y. Times Travel Section, March 9, 2003 it was reported that “The [A.S.P.C.A.]… [warns] of the dangers of flying dogs in the cargo hold of planes-including overheating or freezing, suffocating and being mishandled, lost or loose”. In Airborne Pets Need Extra TLC in Summer, Consumer Reports Travel Letter, p. 15. (May 2000) it was reported that “Rough estimates, supplied by the Air Transport Association…put animal injuries, deaths and losses at about 5,000 a year, or about 1 percent of all animals traveling by air…These figures include not only companion animals but laboratory animals and others transported for commercial purposes…[S]tories include those pet carriers being run over by airport equipment, of animals being left on tarmacs in broiling heat and those that died from lack of oxygen in crowded cargo compartments”. And in Botha, No Red Carpet for Rover: Pets Endure Harsh Treatment on Planes, Conde Nast Traveler, p. 24 (April 1998) it was reported that “The ASPCA says that it’s not safe for pets to travel in the cargo hold, and it wants to strengthen current law. Most of the reported cases concern dogs that have died from suffocation or heat exhaustion…certain problems remain unaddressed”.
Conditions Better Now For Pets
Conditions for pets seem to have improved in recent years as reported in AAPR applauds DOT final rule on per safety [ETN July 7, 2014] “According to (DOT) airlines reported five incidents involving the loss, death or injury of pets while traveling by air in December 2012 which was the last reported data. The incidents involved one pet death and four pet injuries. For all of last year, carriers reported 30 pet deaths, 27 pet injuries and one lost pet. In 2011, carriers reported 35 pet deaths, nine pet injuries and two lost pets”.
Categories Of Animals Transported
The Final Rule [footnote 1] [DOT Final Rule on Reports by Air Carriers on Incidents Involving Animals During Air Transport effective January 1, 2015]http://www.ofr.gov/OFRUpload/OFRData/2014-15505_PI.pdf notes that “There are three categories for animals transported in scheduled passenger air transportation: ‘unassigned in the cabin’, ‘accompanied baggage’ and ‘live cargo shipments’. Animals categorized are ‘unassigned in the cabin’ are usually small pets that remain with the owner in the cabin for the duration of the flight. Air carriers may allow a limited number of passengers per flight to transport their animals as ‘unassigned in the cabin’. Pursuant to 14 CFR Part 382, service animals accompanying individuals with a disability are not included in this category. Animals categorized as ‘accompanied baggage’ are pets traveling with passengers on the flight that are checked as baggage, remain in the custody of the air carrier for the duration of the flight, and are transported in the cargo compartment. Animals categorized as ‘live cargo shipments’ are animals that are not associated with passengers on the flight and are transported in the cargo compartment. While ‘accompanied baggage’ and ‘live cargo shipments’ may or may not be in different areas of the cargo hold on an aircraft, the primary differences between these two categories are shipping procedures and price points”.
Animal Legal Defense Fund
“In August of 2010, the US Department of Transportation (DOT) received a petition for rulemaking from the Animal Legal Defense Fund (ALDF), an advocacy group which works to protect the lives and advance the interest of animals through the legal system. In its petition, ALDF requests the DOT’s regulation requiring the reporting of loss, injury, or death of animals in air transport be revised to require airlines to report any such incident involving any animal they carry. It contends that the data that are currently collected by the DOT capture only incidents affecting pets, even though pets make up only part of the total number of animals transported by airlines. The ALDF proposed that the rules should apply to all species of animals not just cats and dogs”.
Expanding The Definition Of “Animal”
At issue is the expansion of the definition of “animal” from “any warm or cold blooded animal which, at the time of transportation, is being kept as a pet in a family household in the United States”. As noted in the Final Rule “This proposal is the most contentious topic…All the animal rights advocacy groups believe that “animal” should include all species of animals in commercial air transportation, not just cats and dogs. The animal rights advocacy groups state that cats, dogs and household pets make up only a portion of all the animals that are transported by carriers. They assert that carriers transport a wide variety of animal species, such as primates, rabbits, ferrets, mice and rats, for research facilities, zoos and pet retailers. These groups argue that carriers should be required to report incidents involving all types of animal, not just cats, dogs and household pets, in order to provide complete and reliable data that will allow consumers, carriers and legislators to make informed decisions regarding the safety of the transport of all animals”.
“The scientific research organizations adamantly oppose expanding the definition of ‘animal’…to include all species (because) the resource and logistical burden placed upon the airlines could effectively force airlines to completely discontinue the transport of all animals, creating catastrophic consequences for the…zoo and aquarium community and the sustainability of the animal collections in their care”.
DOT Defines A New “Animal”
The DOT decided to expand the definition of “animal” ever so slightly to include “any warm or cold blooded animal which, at the time of transportation, is being kept as a pet in a family household in the United States and any dog or cat which, at the time of transportation, is shipped as part of a commercial shipment on a scheduled passenger flight. We are not expanding the definition of ‘animal’ to cover all species of animals. We believe it would be unduly burdensome to require covered carriers to report the death, loss or injury of all species of animals because there potentially could be thousands of animals such as fish, rodents and insects that are transported by air carriers in a single commercial shipment”.
Getting carriers to report negative transportation data has always been a challenge. The best is the US Center of Disease Control’s (CDC’s) sanitation inspection reports of individual cruise ships which ranks cruise ships by inspection scores and is available on the CDC’s website. More problematic has been recent efforts to have cruise lines report incidents of criminal activity including sexual assaults involving cruise passengers [see our analysis of The Cruise Vessel Security and Safety Act of 2010 at pp. 14-15 of The Cruise Passenger’s Rights & Remedies 2014 at www.nycourts.gov/courts/9jd/taxcertatd.shtml].
The DOT decided to require airlines to not only report in their December report “a summary of the total number of animal losses, injuries and deaths for the year” but also “the total number of animals transported in the calendar year” (so as to provide) “consumers a complete picture of a covered carrier’s animal transportation record, as the number of animals transported by each airline may vary widely. Consumers can use this data to calculate rates of animal loss, injury and death per unit of animals transported for each airline”.
The Final Rule represents a compromise, of course, between the concerns of ALDF and the scientific research organizations. Clearly, cats and dogs, whether household pets or otherwise, are still the primary concern of the US DOT.
The author, Justice Dickerson, been writing about Travel Law for 38 years including his annually-updated law books, Travel Law, Law Journal Press (2014), and Litigating International Torts in US Courts, Thomson Reuters WestLaw (2014), and over 300 legal articles many of which are available at www.nycourts.gov/courts/9jd/taxcertatd.shtml .
This article may not be reproduced without the permission of Thomas A. Dickerson.