Since private capital was allowed to invest in aviation area, the cost of air travel for citizens reduces gradually. Cheaper air travel has resulted in a record number of air passengers, which has in turn led to cramped conditions on board airplanes and poor treatment by airline employees. As a consequence, airlines are reporting dramatic increases in the number of incidents involving unruly passengers. For its own operation and navigation safety, airlines deny services to unruly passengers, which is commonly known as the civil aviation passenger blacklist.Civil aviation passenger blacklist just appears in China, which leads to an intense debate on whether an air carrier has the right to set up a blacklist. The focuses of the debate are: whether air carriers have the freedom of contracting; whether air carriers’ freedom of contracting infringe citizens’ basic rights; regarding to aviation security, airlines are granted the limited right to contract freely, but the freedom of contracting may be abused, so limitations should be added to air carriers’ refusal power when denying transporting passengers under security reasons.The essence of a passenger blacklist is an air carrier refusing to conclude a contract with a specified passenger. So the justice of a civil aviation passenger depends on whether air carriers have the freedom of contracting. A common carrier owes a duty of forced contracting, so its contracting freedom and the freedom of choosing another party is limited by the law. An air carrier, no matter how much it desires to be a private carrier, holds its services out in such a way as to invite the public generally to avail themselves thereof, it becomes a common carrier. So an air carrier shall bear his obligation of forced contracting under the contract law. An air carrier shall not deny service of a passenger’s usual and reasonable request. Taking account of aviation security, countries do not completely deny the contracting freedom of an air carrier. Subject to 49 U.S.C.§44902(b), an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety. Although an air carrier should undertake the duty of forced contracting, but its contracting freedom still remains some.As an air carrier has the freedom of contracting, whether the freedom violates the duty of forced contracting which law purposed to common carriers as to protect citizens basic travel right. Considering the different bargaining power and status between a passenger and an airline admission, we put the obligation of forced contracting on common carriers so that to realize the essence of the contract justice. But the same time we give an air carrier a certain degree of freedom of contracting, will the air carrier using its freedom of contracting to do harm to citizens’ basic right, as the right to travel, the right of personality and the right of option. There is no doubt that the right to travel is a fundamental constitutional right without referencing a specific constitutional provision. But citizens have no constitutional right to the “most convenient form of travel”, so we don’t think that denying the right to air travel deprives citizens of their fundamental right to travel. As long as a citizen can reach any destination he wants to without any limitation, then his right to travel is not harmed. When an air carrier refuses to contract with a specific passenger, its refusal will not infringe the passenger’s fundamental right to travel because the carrier is exercising its freedom of contracting and its refusal does not prevent the passenger to choose the other transportation or other air carriers. The citizens’ personal dignity is contained in the right of personality, which means equal status equal treatment. Some hold the view that air carriers exercising of freedom of contracting carrier to deny services to specific passengers cause discrimination to these passengers. It is responding to passengers’ unreasonable transportation requirements, air carriers exercise their contracting freedom to deny passengers for considering the bad misconduct made by the passengers which endangers air transport safety and its good order. As for passengers as a consumer, he has the right of option. The key point of the right of option relies on the word "customer". It means that a consumer who can make his own decisions without any interference, but not means that an operator must accept the consumer’s choices, so the carrier to the contracting freedom will not infringe a passenger’s right of option.Air transport’s particularity determines air transport needs higher requirements for safety. Once an accident happened in flight, both the flight and the passengers and crews on board are in danger. Offenders hardly have enough room to protect themselves from harm, and the crews are difficult to get outside support. Aircraft once out of control it will make a great disaster. So air transport’s special requirement for safety is a strong support for air carriers contracting freedom. But security is a fuzzy concept, whether an air carrier reasonably exercises its freedom of contracting to exempt itself to undertaking forced contracting depends on a judgment, especially for security reasons to deny services to passengers. Denying service to specific passenger under security reasons, the US courts distinguish between a captain making a gut call with limited information aboard an airplane about to take off and an airline official, far removed from the cockpit and with ample time to investigate threats, refusing future service to a passenger. In judicial practice of China, the court decides whether an air carrier exercises its freedom of contracting for security reasons mainly depends on regulations issued by the civil aviation administration of China. Although there is no specific provision in the laws and regulations, common carriers who breach the obligation of forced contracting should assume corresponding responsibility. |