The Corona Virus And Air Transport – Rights And Liabilities

What are the rights of an airline to stop operations to affected areas, and what rights do passengers have in this case?

 

 

by Dr. Ruwantissa Abeyratne-2020-02-27

Writing from Montreal

 

Yesterday, a distinguished airport colleague in charge of a European airport wrote to me asking the following questions:

 

What are the rights of an airline to stop operations to affected areas, and what rights do passengers have in this case?

 

In case a passenger decides not to take a flight due to health recommendation in an affected area, but his flight is operated to an area not affected by the Coronavirus, does he have the right of reimbursement?

 

Is an airline liable if a passenger is infected on a particular flight by an infected flight attendant, or by infected passengers on the flight?

 

Do handling agents bear responsibility for refusing boarding to a sick passenger or in fact boarding a sick passenger?

 

What are international standards for aircraft cabin disinfection between two flights?

 

In the case of a cruise ship, some ports refuse acceptance of the ship carrying sick passengers. Can any airport or Member state refuse licence for landing of the airplane in to its territory or airport if it is declared that it has a passenger with a communicable disease on board?

  

I will address these questions in their order of appearance.

 

What are the rights of an airline to stop operations to affected areas, and what rights do passengers have in this case? The decision of an airline to halt operations to its agreed destinations is a commercial decision and one which is presumably taken with good reason. The International Air Transport Association (IATA) – the association of airlines – has issued guidelines by way of an Emergency Response Plan to its member airlines for use in any public health emergency: IATA - which has forecast that airlines stand to lose $29.3bn (£23.7bn) of revenue this year due to the coronavirus outbreak- recommends that “all air carriers have emergency response plans to deal with public health emergencies. While a number of air carriers already have such a plan in place, many do not”. The document has two primary objectives: identify in broad terms how to prepare for a public health emergency and provide checklists of actions that should be built into a public health emergency plan.

 

One of the main recommendations is for airlines to establish an emergency response centre and an emergency response team to handle the crisis. IATA says: “The information triggering an emergency response could come from any number of different areas. The most likely scenario would probably be a notification from the World Health Organization (WHO) that there has been a progression into a more critical phase of the emergency in question. However, the information could also come from National Public Health Authorities, as it did for some countries during the SARS crisis and the Fukushima accident. Lastly, a response could also be triggered at the air carrier level if, for instance, many passengers and/or crewmembers on a particular flight display symptom compatible with communicable diseases.

 

As for State responsibility, The International Civil Aviation Organization (ICAO) – the specialized agency of the United Nations for matters concerning international civil aviation - has requested that States that are not yet members of the ICAO Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation (CAPSCA) programme are strongly encouraged to become members as per ICAO Assembly Resolution A40-14: Mitigation of the spread of disease through, inter alia, aircraft disinsection and vector control methods, and the importance of CAPSCA (Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation) for implementation. It is important to note that neither IATA nor ICAO has recommended the stoppage of flights, presumably following the same position so far taken by the World Health Organization.

 

Operating a flight into a State and allowing a flight into a State are two different things and the latter is the prerogative of that State. Annex 9 to the Chicago Convention, which comes within the purview of ICAO, recommends that, in cases where, in exceptional circumstances, air transport service suspensions on public health grounds are under consideration, States should first consult with WHO and the health authority of the State of occurrence of the disease before taking any decision as to the suspension of air transport services. The Annex also requires that Contracting States must not prevent an aircraft from calling at any international airport for public health reasons unless such action is taken in accordance with the International Health Regulations (2005) of WHO. However, provisions of the Annexes are not actionable law as they are not mandatory.

 

As for a passenger’s rights, the airline cannot be held liable for any outcome relating to a flight concerned or cancellation thereof unless, on a preponderance of probabilities, it can be shown that the airline was negligent.

 

In case a passenger decides not to take a flight due to health recommendation in an affected area, but his flight is operated to an area not affected by the Coronavirus, does he have the right of reimbursement? The answer is in the negative. The air transport undertaking is based on a contract between the airline and the passenger and this is one instance that would be a breach of contract by the passenger.

 

Is an airline liable if a passenger is infected on a particular flight by an infected flight attendant, or by infected passengers on the flight? In common law countries this would be based entirely on whether the airline was negligent in allowing the infected flight attendant or the passenger on the flight and this would be based on the test of foreseeability. The Montreal Convention of 1999 (for those States which have ratified the treaty) states that the carrier is liable for damage caused in the event of death or bodily injury if the accident which caused the damage occurred on board the aircraft or during embarkation of disembarkation. The word “accident” has been broadly defined by the courts. The carrier has an exculpatory condition in the treaty that says it would not be liable if the damage was caused by the contributory negligence of the claimant.

 

Do handling agents bear responsibility for refusing boarding to a sick passenger or in fact boarding a sick passenger? The handling agent is an agent of the airline. Ultimately, it is the airline that will be held accountable. The principles of the law of agency will apply. The claimant will however not be precluded from bringing a separate action grounded on tort against the agent if the agent was negligent and such negligence caused damage to the claimant.

 

What are the international standards for aircraft cabin disinfection between two flights? Disinfection is the procedure whereby health measures are taken to control or kill infectious agents on a human or animal body, in or on affected parts of aircraft, baggage, cargo, goods or containers, as required, by direct exposure to chemical or physical agents. Annex 9 provides that States must determine the conditions under which aircraft are disinfected. When aircraft disinfection is required, the following provisions apply: the application must be limited solely to the container or to the compartment of the aircraft in which the traffic was carried; the disinfection must be undertaken by procedures that are in accordance with the aircraft manufacturer and any advice from WHO; the contaminated areas must be disinfected with compounds possessing suitable germicidal properties appropriate to the suspected infectious agent; the disinfection must be carried out expeditiously by cleaners wearing suitable personal protective equipment; and flammable chemical compounds, solutions or their residues likely to damage aircraft structure, or its systems, such as by corrosion, or chemicals likely to damage the health of passengers or crew, must not be employed.

 

In the case of a cruise ship, some ports refuse acceptance of the ship carrying sick passengers. Can any airport or Member state refuse licence for landing of an airplane into its territory or airport if it is declared that the aircraft has a passenger with a communicable disease on board? Permitting entry into a State is the prerogative of the State concerned. This is under the principle of State sovereignty recognized by the UN Charter and under customary international law. No one can question that at law or in international relations. In the aviation context this right is guaranteed by Articles 1 &2 of the Chicago Convention.

 

Dr. Abeyratne, who is former Senior Legal Officer at ICAO and currently Senior Associate at Aviation Strategies International as well as lecturer in aviation law and policy at McGill University, has provided the above answers in his personal capacity and they should not necessarily be attributed to his present or past professional and academic affiliations.