The 1936 Flash Gordon story Planet of Peril, Chapter 1 to the Space Solders serial, present very interesting issues in air travel and the duty of a common carrier.

Alex Raymond’s classic charters Flash Gordon (Buster Crabbe) and Dale Arden (Jean Rogers) made their big screen debut in 1936 during an ill-fated flight in a meteor shower. In what would seriously disturb any traveler in post 9-11 America who complain about taking off their shoes, the pilot told the passengers they could put on parachutes and bail out. The pilot further stated:

There is a parachute under every seat. We were ordered to bring them aboard this morning in the case of any trouble.

In a remarkably limited display of screaming, passengers put on parachutes and bailed out of a trimotor aircraft.

The Duty of Common Carriers

Everyone who has ridden a bus or taken a plane flight has been on a common carrier.

A “common carrier” is an regulated industry that transports goods or individuals and is responsible for the loss of goods during the transportation. Given the nature of transporting people or goods, a carrier owes a passenger “the highest degree of care.” Brasseur v. Empire Travel Serv., 1995 U.S. App. LEXIS 36967, 2-4 (9th Cir. Cal. Dec. 15, 1995), citing Marshall v. United Airlines, 35 Cal. App. 3d 84, 110 Cal. Rptr. 416, 418 (Cal. Ct. App. 1973).

Common carriers have a heightened standard of care because “during travel a passenger is exposed to numerous hazards while his or her freedom of movement is entirely under the control of the carrier.” Brasseur, at *2, citing Orr v. Pacific Southwest Airlines, 208 Cal. App. 3d 1467, 257 Cal. Rptr. 18, 21 (Cal. Ct. App. 1989).

The duty applies while passengers are in transit and “until they have safely departed from the carrier’s vehicle.” Id. Moreover, “[u]ntil the passenger reaches a place outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger the rule of utmost care and diligence . . . still applies.” Brasseur, at *2-3, citing 110 Cal. Rptr. at 419 (quoting Brandelius v. City & County of San Francisco, 47 Cal. 2d 729, 306 P.2d 432, 436 (Cal. 1957)).

It is also worth noting what “ditching equipment” is required under the law for commercial aircraft:

(a) Emergency flotation and signaling equipment required by any operating rule in this chapter must be installed so that it is readily available to the crew and passengers.

(b) Each raft and each life preserver must be approved.

(c) Each raft released automatically or by the pilot must be attached to the airplane by a line to keep it alongside the airplane. This line must be weak enough to break before submerging the empty raft to which it is attached.

(d) Each signaling device required by any operating rule in this chapter, must be accessible, function satisfactorily, and must be free of any hazard in its operation.

14 CFR 23.1415.

Parachutes are not on the list. Just imagine how messy it would be if 787’s had ejection seats and one went off at 39,000 feet.

No Bailing Out on Liability

The transcontinental airline was 1) a common carrier and 2) owed Flash and Dale a heightened duty of care.

Given the planetary dangers Earth was experiencing, including the parachutes enabled the passengers to escape the doomed aircraft.

However, if the danger was so great that the plane was required to add parachutes (which no commercial airline does), it probably would have been safer NOT to fly in adverse weather (if a meteor shower can be considered weather) and subject the passengers to the danger of bailing out of a plane without skydiving or survival training.

On the flip side, parachute instructions would make for a very entertaining in-flight safety briefing.

Once the passengers were safely on the ground, the heightened duty of care would not have ended, because parachuting into an unknown area would not leave the passengers safe and the airline free of responsibility. The airline could not argue that the passengers were “outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger,” because the passengers were scattered about the countryside wherever the wind took them.

By way of example, a passenger was not owed a heightened duty because the airline did not warn her about the possibility of a hurricane hitting after being safely delivered to Cancun. Brasseur v. Empire Travel Serv., 1995 U.S. App. LEXIS 36967, 4-5 (9th Cir. Cal. Dec. 15, 1995). This case would be very different than Flash’s situation, since the airline did not deliver the passengers safely to their destination. Moreover, the airline also knew of dangerous conditions prior to takeoff from the meteor storm. As such, a Court would likely find an airline that requires passengers to bail out of a plane is not free from ensuring the passengers’ safe rescue, thus ending the airline’s heightened duty of care.

However, getting on an untested rocket ship would be an unforeseeable intervening factor that an airline could not be responsible for continued passenger safety.

A Rocket to Mongo & Heightened Duty of Care

The airline was not the only common carrier in Flash Gordon: Professor Zarkov’s rocket arguably would be considered a common carrier. Moreover, society would require people who build rockets in their backyard to be responsible for the safety of those anywhere near such a potentially dangerous machine.

Professor Zarkov negotiated with Flash to join him on his spaceflight to save the Earth from the planet Mongo on a collision course with Earth. Gordon agreed, provided Dale could join them [Note, unlike the 1980 movie, Zarkov did not kidnap Flash and Dale at gunpoint]. While this is a very basic example of contracting for transportation (without a liability release and covenant not to sue), Zarkov providing transportation to another planet would expose Flash and Dale to numerous hazards while their freedom of movement was entirely under the control of Zarkov. As such, Zarkov would owe them a heightened duty of care on their spaceflight.

Highlighting the dangers to Dale and Flash (and legal risk to Zarkov), Professor Zarkov forgot to turn on the oxygen before take off, causing a significant life threatening risk to his passengers from asphyxiation.

Upon landing on Mongo, the passengers immediately face numerous risks, including giant lizards, being captured by armed and well-armored soldiers, fighting men with fangs and an alien culture where the men wore short-shorts without pockets (One of the few times in SciFi where the female characters arguably had more clothing).

Professor Zarkov’s heightened duty of care may have ended when they safely arrived on Mongo (albeit for a brief time), just as the airline did not have a duty to warn about a hurricane after getting a passenger safely to her destination. Moreover, it would be unreasonable for Zarkov to be held responsible for the unforeseeable actions of Ming, the Shark Men, Vultan or Princess Aura. Flash and Dale arguably assumed the risk of the unknown when they agreed to fly into space with Professor Zarkov.

The Princess vs The Damsel in Distress 

Finally, it is worth noting that the stronger female character was Princess Aura, Ming’s daughter. Aura was willing to stand up to her father Ming, hit her targets in a ray gun fight, showed no fear in taking immediate action and dressed down those threatening her.  However, she was both possessive and manipulative, which were serious negatives.

Dale Arden, on the other hand, constantly needed to be saved by Flash. A relationship based on perpetually rescuing someone would be as healthy as flying on a commercial airline that required parachutes. Fortunately, the character was stronger in the 1938 Flash Gordon’s Trip to Mars.