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New airport security rules: What are your rights?

I've lost track how many times I've bought a 1.5 litre bottle of water in the Boots concession at Heathrow only to remember as I amble away from the till—customarily about three nanoseconds later—that I can't take it through security. Usually, I end up standing outside the departure gate, bottle upended, trying to imbibe the full contents of it like some sad and desperate human camel. I usually fail.

It is clear that keeping up with airport security restrictions can be a challenging task. Things have got even more complicated since 2 July when enhanced security measures on electronic gadgets were announced by the US Department of Homeland Security.

These new rules apply to airports that have direct flights to the United States. The UK Government's guidance sums it up as follows:

Flying to the US: make sure your electronic devices are charged before you travel. If your device doesn’t switch on, you won’t be allowed to bring it onto the aircraft

Simple enough, but where does this leave you from a legal point of view if you look at your new iPhone or Galaxy smart phone; realise that it isn't charged; and the security operative demands that you hand it over?

Can I claim for the cost of the gadget under the airline's terms and conditions of carriage?

Unlikely. It would certainly be an uphill battle.

Let's take British Airways' General Conditions of Carriage as an example.

In particular, these state, at clause 7a:

We may decide to refuse to carry you or your baggage if one or more of the following has happened or we reasonably believe may happen.

7a1) If carrying you or your baggage may put the safety of the aircraft or the safety or health of any person in the aircraft in danger.

7a6) If you have refused to allow a security check to be carried out on you or your baggage.

7a7) If you have not obeyed the instructions of our ground staff or a member of the crew of the aircraft relating to safety or security.

Or clause 8c

You must not carry the following in your baggage (whether as checked baggage or unchecked baggage): Items which we reasonably consider unsuitable for carriage because they are dangerous, unsafe ...

In other words, since 2 July, your uncharged tablet computer or mobile phone are now a security risk so, under these terms, BA asserts that it may refuse to carry them and their (undoubtedly annoyed) owner.

Under the BA's rules, it is equally clear that you would be wise to co-operate with its staff on the ground (obviously) otherwise you'd could find yourself sat in your car in the long-term car park at Heathrow, staring into space and wondering why you aren't 10,000 metres above the Atlantic.

Now, this is not to say that BA have a blank cheque to do whatever it wants. The European Consumer Organisation (BEUC), which lobbies for the interests of European consumers in Brussels, has highlighted clauses in air transport contracts which have been found by the courts to be unfair in various European countries.

That said, the need to ensure the safety of an aircraft would seem to be a valid safety reason which justifies a prohibition of transporting potentially unsafe items such as uncharged electronic goods. Such a provision is arguably fair under unfair terms legislation. On the other hand, a Spanish court has held that a ban on checking in valuable gadgets (and for the airline excluding itself from liability for damage or loss to such items) was unfair.

OK, can I rebook to go on another flight then?

BA has provided advice on its website to say what happens if a customer wants to rebook:

If your device doesn't power up when you are requested to do so, you will not be allowed to fly to the US on your original service. Our customer services team will look after the rebooking of your travel arrangements.

It goes on to say:

I no longer wish to travel, can I change my flight? We expect to operate a full schedule of flights to and from the US and therefore normal ticket rules apply.

The key words here are 'normal ticket rules apply'. What does this mean? Reading between the lines, it means that you would probably have to pay to go on another flight. BA might put you on a later flight as a gesture of goodwill but this could, in the long run, prove to be expensive for the airline. I, for one, would not rely on this, particularly now that the rules are becoming better known.

Isn't taking away something that belongs to me theft?

Not if you voluntarily give up your new (uncharged) electronic toy. You have a choice, albeit it a painful one; namely: holiday/ business trip v shiny new gizmo.

The choice is effectively: keep your gadget and don't fly or abandon it into the bins provided and fly.

What about the airport shop that sold me the gadget. Surely it is responsible?

To quote BA:

Please do all you can to ensure that any new electronic items you purchase at the airport have power before you reach the boarding gate.

The key is to speak with the sales assistant to ensure that the product that he or she is about to sell you is charged (some goods may be only partially charged—is that enough?).

If the retailer makes a false statement, even recklessly ('yeah, yeah, yeah, of course it is charged'), to persuade you to buy the goods, you may have the right to end the contract and get a refund under the Misrepresentation Act 1967.

Alternatively, perhaps the packaging your widget came in said that it was 'fully charged'? If it turns out that it wasn't then you may have a misdescription claim under the Sales of Goods Act 1979.

The inherent difficulty with the above remedies is that fact that they aren't instant. Until HM Courts & Tribunals Service sets up a trendy 'pop-up' court between the duty-free shop and WHSmith then, frankly, you'll have to wait for justice to be done.

From a practical point of view, the safest course of action is to avoid buying an electronic device at the airport in the first place. If you really must, double-check with the sales assistant whether it comes charged and then run to the nearest power point and charge your device until its electronic pips squeak (or is it bleep?).

How long are these restrictions likely to last?

Who knows.

In 2006, the liquid bomb plot meant the banning of almost all liquids, aerosols and gels on aircraft. Four years later the European Commission enacted a time-frame to move from banning most liquids to a system of screening for liquid explosives.

It is 2014 and airports are still not ready to scan liquids.

On a more positive note, the industry does recognise the frustrations that security can cause. In June 2011 IATA's Director General and CEO, Giovanni Bisagnani, stated in commendably honest terms:

We spend $7.4 billion a year to keep aviation secure. But our passengers only see hassle. Passengers should be able to get from curb to boarding gate with dignity. That means without stopping, stripping or unpacking, and certainly not groping. That is the mission for the Checkpoint of the Future. We must make coordinated investments for civilized flying

Only time will tell whether this will ever be achieved.

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