Italy: Ebola Outbreak: Are Air Carriers Liable?

Ebola Virus Disease (or "Ebola", as commonly known) is a severe and often fatal viral illness in humans. The recent deadly outbreak started in Guinea in December 2013, and by March this year it had spread through West Africa in alarming proportions. On August 8th, the World Health Organization (WHO) declared the Ebola crisis an international public health emergency. There have been serious emergency response plans and action taken by the involved countries, in a desperate and concerted effort to contain the disease.

Regretfully, the scale of diffusion of the virus has overtaken the preventive and containment measures put into practice: in the deadliest Ebola outbreak so far, every day more people are becoming infected and more are dying because they cannot get the care they need1, and fear of infection is having significant impacts on daily life in the affected regions.

The first symptoms of Ebola are similar to a common cold or flu, since they include the sudden onset of haemorrhagic fever, fatigue, malaise, muscle pain, headache and sore throat. These symptoms are followed by profuse vomiting, diarrhoea, rashes, liver and kidney impairment, internal and external bleeding.2

The virus is spread from human-to-human via direct contact - i.e. through broken skin or mucous membranes, like eyelids - through blood, secretions, organs or other body fluids of infected people, and by means of contaminated materials and surfaces (bedding, clothing and the like).3

On average, the incubation period for Ebola is 2-21 days, but it is worth pointing out that an infected person cannot spread the virus until the onset of the above-mentioned symptoms.

From an aviation perspective, some action has been taken. The heads of the WHO, the International Civil Aviation Organization (ICAO), the World Tourism Organization (WTO), Airports Council International (ACI), International Air Transport Association (IATA) and the World Travel and Tourism Council (WTTC) decided to start a Travel and Transport Task Force, which will monitor the situation and provide timely information both to the concerned professionals and to travellers.

In light of the above, airlines may be concerned about their potential exposure to claims, thus it is necessary to evaluate the real extent of their hypothetical liability.

As known, the liability of the air carrier for death or injury caused to a passenger is covered by the Montreal Convention of 1999: in particular, article 17 states that "The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking".

With regard to those States that have not yet ratified the Montreal Convention but have ratified the Warsaw Convention of 1929, the Warsaw liability principles, which are similar to the ones described, will apply.

In particular, according to article 17 of the Warsaw Convention "The carrier is liable for damage sustained in the event of death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking and disembarking".

One can notice subtle differences between the two provisions: the element of "bodily injury" as introduced by the Montreal Convention has effectively precluded the fruitful claim of mental injury, unless it was caused as a result of a bodily injury.4

Therefore, it is conspicuous that air carrier liability is made up two elements: (i) death or injury has to be caused by an "accident", and (ii) the accident should take place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Firstly, it must thus be assessed the extent of the definition of "accident", since it is not defined in the Montreal Convention (and it was not defined in the Warsaw Convention). According to the relevant case-law, an accident is an untoward event, a circumstance which unexpectedly takes place out of the usual course of things,5 and not the passenger's reaction to it however acute that might be.6

In the known and influential cause Air France v. Saks,7 the US Supreme Court found that the deafness caused by the depressurization of the plane was not an "accident" within article 17, because it was the passenger's internal reaction to the usual depressurization of the plane.8

Therefore, if the event on board an airplane is usual, ordinary or expected, such an event cannot be deemed as an accident. Liability is thus not engaged in respect of death or injury simply because it arises in the course of, or following, a carriage by air, if it can be included among the foreseeable incidences of air travel.

Moreover, it is interesting to underline that the available jurisprudence concerning Deep Vein Thrombosis (DVT, also called "Economy Class Syndrome", because of the increased risk of clots due to leg inactivity and cramped seat space potentially causing poor circulation for a prolonged period of time) is quite univocal, stating that a failure to warn passengers of precautions cannot constitute an accident according to article 17 of Montreal Convention.9 This means that if the only thing external to the passenger which is alleged to be unusual or unexpected is something which does not happen, namely, an omission, there can be no accident. An omission can lead to an accident, but the omission itself cannot be the accident for the purposes of article 17.

However, before automatically excluding the death/injury as a non-accident, it must be examined whether the flight crew followed normal operating procedures.

The question of whether liability exists when air carriers aggravate or cause injuries to passengers through its actions or inactions has been examined by the judgment Husain v. Olympic Airways,10 which found that an air crew's failure to respond to a known risk to a passenger was an "accident" under article 17, because the crew could have minimized the involved risk without disturbing the normal operation of the aircraft. The Court determined that the flight crew's conduct went beyond a mere negligence standard, due to the potential notorious danger caused by second-hand smoke to asthmatic passengers.

Anyway, it must be noted that such an expansion of the interpretation of "accident" seems to be limited to a small class of potential plaintiffs, as it could solely be applied to cases where the aircraft personnel are aware of the pre-existing condition, and can reasonably do something to aid the involved passenger without interfering with the normal operations of the flight.

In the Ebola case, scientists have stated that the risks of catching an infection from an ill passenger during a flight are low: in fact, unlike infections such as influenza or tuberculosis, Ebola is not spread by breathing air from an infected person, since – as described above – it requires exposure that could be defined as unlikely for the average traveller.11

It must also be considered that Ebola cannot be transmitted unless a person manifests the disease, so infection during the incubation period is precluded, and sick persons usually feel so unwell that they cannot travel. An airline would in all probability not be able to detect an infected person who boards its aircraft, while showing no signs of the disease during the incubation period.

But what about the legal perspectives arising in the hypothesis that a traveller (or his/her heirs) summons an airline asserting its liability for the infection of the virus?

Regarding the aforementioned "accident" requirement, the plaintiff would need to prove that contracting Ebola was unexpected/unusual at the time of the flight: given the extensive global coverage of the issue, it could be argued that passengers would be aware that transmission might, however statistically unlikely, nevertheless occur.

In order to mitigate the risk, however, prudent airlines should take the necessary steps to isolate a passenger on-board where the symptoms described herein arise, also in the light of the examined Husain v. Olympic Airways case, where the airline was held liable on the basis that it did not adopt the adequate measures to move the ill passenger notwithstanding the serious and known risk. Anyone showing the symptoms would reasonably be quarantined on arrival, and health authorities would also check who had been in contact with them, in order to avoid spreading the virus.

A passenger claiming compensation for contracting Ebola would also need to prove that the transmission occurred whilst on the aircraft or at boarding or disembarkation. One has to determine what the "course of operations of embarkation and disembarkation" are. Courts have not adopted the simplistic notion that only the acts of getting into and out of the aircraft should be considered for the purpose, since the liability has to be assessed according to the location of the passenger when the event occurred, the activity he/she was involved in at the time and the control measures adopted by the airline.

In practice, it seems that the burden of proof lying on the claimant could be hardly satisfied in the case of Ebola, since it must be demonstrated that the infection – notwithstanding the mentioned asymptomatic incubation period – occurred on the aircraft or while embarking or disembarking, rather than in the duty free or other areas of the airport, or even outside the airport infrastructure.

In any case, a passenger cannot claim compensation from an air carrier for mental distress caused by the apprehension that he/she seated near a person showing signs of sickness that were perceived as symptomatic of Ebola.

Furthermore, the liability of the airline in case of transmission of Ebola must be evaluated according to the relevant recommendations issued by the relevant authorities, organizations and associations.

Currently, the thermal screening of passengers at airports is not recommended, since the scanners used to detect a fever are unlikely to find people incubating the first stages of the disease, but the recommendations may change depending on the evolution of the situation.12

According to the operational procedures recommended by IATA, in case of a passenger presenting with symptoms compatible with Ebola on board an aircraft, cabin crew should immediately apply precautionary and protective measures according to the protocol, such as distancing other passengers if possible and reseating them away from the symptomatic passenger, limiting contact of the passenger to the minimum necessary, performing hand hygiene, and immediate notification of authorities at the destination airport in accordance with procedures endorsed by the ICAO.13

The recommendations addressed to States seem to exclude specular obligations on air carriers: States with Ebola transmission are called to operate exit controls (consisting of, at a minimum, a questionnaire, a temperature measurement and, if there is fever, an assessment of the risk that the fever is caused by Ebola) of all persons at international airports for unexplained febrile illness consistent with potential Ebola, and to deny travel to persons with an illness consistent with Ebola if travel is not a part of an appropriate medical evaluation.

In relation to all other States, there should be no general ban on international travel or trade, but States should provide relevant information on risks, measures to minimize those risks to travellers to Ebola-affected and at-risk areas and give advice for managing potential exposure.

*

In light of the above, it seems difficult – in the current situation – to affirm that the (unlikely) transmission of Ebola from one passenger to another could cause the liability of the carrier, since (i) crew members could not be aware of the pre-existing health condition of a traveller during the asymptomatic period of incubation of the virus, (ii) now, the transmission of the disease could not be qualified as "accident" according to article 17 of the Montreal Convention, (iii) the burden of proof lying on the claimant could hardly be satisfied in the case of Ebola, because it must be demonstrated that the infection occurred on the aircraft or while embarking or disembarking, (iv) airlines cannot be liable for failures attributable to public authorities.

Moreover, in respect of liability, airlines may then likely refer to their general conditions of carriage, which usually contain a right to refuse carriage where it is necessary to comply with government regulations or if carriage endangers the safety and health of other passengers and the crew.

In any case, these conclusions are not immutable, being necessarily anchored by scientific, medical and technological knowledge and by air transport industry standards.

Footnotes

1. The disease has killed more than 3,400 people in western Africa and, since March of 2014, more than 7,400 people have contracted Ebola in those countries considered to be in the so-called "Ebola Zone" (Guinea, Sierra Leone, Liberia and Nigeria). (See http://edition.cnn.com/2014/10/08/health/ebola-us/index.html). Already Ebola cases have been reported in the United States, Spain, Germany and Mali.

2. See Roy C. Baron, Joseph B. Mccormick, Osman A. Zubeir, Ebola virus disease in southern Sudan: hospital dissemination and intrafamilial spread, Bulletin of the World Health Organization, 61 (6): 997-1003 (1983).

3.The World Health Organization (WHO) has highlighted that "the safest thing that anyone can do is to avoid direct contact with bodily fluids of people who have Ebola, and with surfaces and materials (e.g. bedding, clothing) contaminated with fluids" (see www.un.org/ebolaresponse/pdf/UNMEER-virus-press-release.pdf).

4. Masutti, Il diritto aeronautico. Lezioni, casi e materiali, 2009, 258-261.

5. Circumstances which have been qualified as "accidents" are, for example: a fail inside the aircraft or from the aircraft due to a stairway or faulty steps, injury caused by a food trolley, assault by airline staff, a flight attendant spilling hot water/coffee on a passenger. About the notion of "accident" see Morsello, Responsabilidade civil no Transporte Aéreo, São Paulo, 2006, 58; Goldhirsch, Definition of Accident: Revisiting Air France v. Saks, Air and Space Law, 2001, 86; La Torre, Trasporto aereo di persone e responsabilità del vettore, Il trasporto aereo tra normativa comunitaria ed uniforme, Milano, 2011, 70; Mastrandrea, L'obbligo di protezione nel trasporto aereo di persone, Padova, 1994, 181.

6. See House of Lords, [2005] UKHL 72, [2006] 1 AC 495, 19, 20 October; 8 December 2005, 8 December 2005.

7. Air France v. Saks, 470 US 392 (1985).

8. See Di Giacomo, The End of an Evolution: From Air France v. Saks to Olympic Airways v. Husain - The Term "Accident" under Article 17 of the Warsaw Convention Has Come Full Circle, Pace Int'l L. Rev., 2004, Vol. 16, 409.

9. Idem; Court of Appeal (Civil Division), [2003] EWCA Civ 1005, [2004] QB 234, 1, 2, 3 July 2003, 3 July 2003. In Italy, compensation has been denied by: Trib. Varese, 3 February 2009, No. 309, notes of: Pollastrelli, Il risarcimento del danno da sindrome da classe economica, Riv. dir. nav., 2010, 392; Cargniel, Trombosi nel trasporto aereo: nesso di causalità e nozione di incidente, Diritto dei Trasporti, 2010, 459. See also Trib. Roma, 28 April 2008, Diritto dei Trasporti, 2010, 473.

10. Husain v. Olympic Airways, 316 F.3d 829 (9th Cir. 2002), cert. granted, 123, S. Ct. 2215 (2003).

11. See http://www.bbc.com/future/story/20140731-can-ebola-spread-on-planes. Some interviewed virologists affirmed that "It is not anymore dangerous than any place where you are in touch with lots of people. [...] The aeroplane ventilation goes from the ground to the ceiling, where the air is filtered for bacteria and viruses before it recirculates. [...]. The biggest risk is not on the plane, but in the taxi on the way to the airport".

12. The United States Center has announced the implementation of a new passenger screening process at five airports (New York's JFK International Airport, Dallas International Airport outside Washington D.C., Newark Liberty International Airport in New Jersey, O'Hare International Airport in Chicago and Hartsfield-Jackson Atlanta International Airport), where an estimated 94% of all travellers from West Africa enter the United States (see Newly vigilant US will screen fliers for Ebola, NY Times, 9 October 2014).

13. WHO, Travel and transport risk assessment: interim guidance for public health authorities and the transport sector, September 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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