Preventing Airline Liability for Spread of Communicable Diseases
The international health scare triggered by Atlanta attorney Andrew Speaker, who earlier this year traveled on a series of international commercial flights from the United States to Europe for his wedding and honeymoon while infected with multidrug-resistant tuberculosis (MDR-TB),1 has once again heightened the concerns about an outbreak of a serious communicable disease during air travel. Although Mr. Speaker was warned not to board any long-haul flights for his return travel (as health authorities believed at that time that he was infected with a more severe drug-resistant form of tuberculosis), he nonetheless flew home on commercial flights via Prague and Montreal, crossing the U.S. border by car. By traveling with tuberculosis, Mr. Speaker potentially exposed numerous passengers and crew members to his disease.
Transporting a passenger like Mr. Speaker raises concerns about the potential liability exposure of an airline in the event of an infectious disease outbreak. In addition to lawsuits for fear of exposure to and/or actual contraction of a communicable disease, airlines would likely face an increase in cancelled flights and denied boarding claims, along with an overall decrease in public air travel. Discussed below are some relevant international and federal regulations, potential bases for airline liability for outbreaks on domestic and international flights, and several suggested precautions for airlines to take to prevent or limit their liability exposure.
Airlines are expected to comply with a new set of international health regulations (IHR (2005)) developed by the World Health Organization (WHO), which entered into force on June 15, 2007.2 The International Air Transport Association, International Civil Aviation Organization and the U.S. Centers for Disease Control and Prevention all collaborated with WHO in developing these regulations and guidelines.
The new legal framework establishes rules for international coordination in the detection, investigation and response to diseases, including treatment, and sets forth special procedures addressing a public health emergency. The regulations seek to avoid unnecessary interference with international travel and trade, while at the same time strengthening global public health awareness and detection. Airlines also are expected to familiarize themselves with specific laws and regulations concerning infectious diseases in the countries in which they operate.
Airlines often are faced with the difficult task of balancing the safety of their crew and passengers against the interests and rights of a passenger traveling with a communicable disease. For example, the Air Carrier Access Act (ACAA) prohibits airlines from discriminating against a passenger with a disability, which includes a person with a communicable disease or infection, in the provision of air transportation.3 A carrier may deny boarding, require a medical
certificate, or impose conditions on a passenger (such as wearing a mask) only in cases where a passenger with a communicable disease poses a “direct threat” to the safety and health of others.4 In determining whether a passenger poses such a threat, the airline makes an “individualized assessment” by relying on current medical knowledge, the likelihood of potential harm to others, and whether reasonable procedures or modifications could mitigate the risk.5
The airline, however, must transport a passenger with a communicable disease or infection if he or she presents a medical certificate describing conditions or precautions that would prevent transmission and the airline can feasibly carry out these measures.6 Airlines must be careful not to discriminate against passengers who have a communicable disease but do not necessarily pose a threat of transmission to other passengers.7
Airlines also must comply with the Federal Public Health Regulations, which concern the control of communicable disease and are intended to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into and within the United States. For example, airlines are required by these regulations to notify public health authorities of any death or ill person among passengers or crew, and may be penalized for failing to do so.8 Proposed amendments to the regulations expand reporting requirements for ill passengers, require more detailed passenger contact information, and impose substantial penalties for violation of the federal quarantine rules and regulations (e.g., up to $500,000 per event by an organization).9
Potential Airline Liability: The Airline’s Duty of Care
As a common carrier, an airline generally owes its passengers a high duty of care.10 A passenger who claims that he or she has been injured by contracting a contagious disease during a flight, including suffering emotional distress from exposure, generally would have to establish a breach of the duty and that such breach proximately caused the injury.
While case law on airline liability for a passenger’s contraction of a communicable disease in flight is scarce,11 a
negligence claim against the airline could be based on several scenarios, such as where an airline:
- permits an obviously sick passenger to board without making any inquiry, requiring a medical certificate, or denying boarding to determine their medical fitness
- fails to quarantine or isolate a passenger who is discovered in flight with a communicable disease, or otherwise fails to respond appropriately
- knowingly allows an infected passenger or crew member to travel or work
- fails to properly equip and maintain the aircraft to prevent the spread of airborne disease
- fails to notify the appropriate medical authorities and await assistance at the flight’s destination
fails to alert the proper medical authorities and make efforts to contact all passengers on the flight after becoming aware of a passenger’s communicable illness12
Whether the airline would ultimately be held responsible for contraction of the disease by other passengers most likely turns on the airline’s prior knowledge of the illness, whether it should have known or suspected the health risk, and the airline’s response once it became aware of the passenger’s illness.
Liability Under the Montreal Convention
Many international flights are governed by the Montreal Convention. Under Article 17 of the Convention,13 the airline is presumptively liable for physical injury or death of a passenger caused by an “accident” on the aircraft or during the course of embarking or disembarking. Article 17 provides the exclusive cause of action to a passenger for bodily injury or death and preempts any state law-claims against the airline.14
While an Article 17 accident arises when there is an “unexpected or unusual event or happening that is external to the passenger,”15 it generally will not be established when an injury results from a passenger’s preexisting condition or in reaction to the normal operation of a flight.16 Accordingly, an airline should not be liable to a passenger boarding the aircraft with a preexisting illness unless there was some unexpected or unusual event by the airline that caused them physical injury.17 Where other passengers contract a contagious disease during a flight, or in the course of embarking or disembarking, a court may very well consider this an “unexpected or unusual event” external to the passenger. However, determining when contraction occurred may prove to be very difficult.
If an accident is found, the airline is presumptively liable for a passenger’s provable damages up to a maximum of 100,000 Special Drawing Rights (SDRs) (approximately $150,000). An airline is not responsible for any damages beyond this amount if it proves that it was not negligent or that the incident was caused solely by the negligence of others, such as the contagious passenger who knowingly traveled on the flight without notifying the airline or health authorities. The airline also may disclaim liability to the contagious passenger by arguing that the injury was caused or contributed to by the negligence or other wrongful act of that passenger. In situations where a passenger claims solely emotional distress damages (such as fear of contracting the disease) but has sustained no physical injury, the passenger is not entitled to any recovery under the Convention.18
Precautions and Recommendations
In addition to crew training on the handling of an infectious disease outbreak, additional precautions and recommended practices to consider include the following:
- be aware of individuals, both on the aircraft and at the gate, who appear sickly or have a heavy cough, and conduct an appropriate medical inquiry
- make sure the air ventilation system in the cabin is working properly and is compliant with aviation standards
- have the flight crew make regular safety announcements, including warning passengers who experience flu-like symptoms to seek immediate medical attention
- in the event that a passenger’s carrying of an infectious disease is known before the flight, notify personnel immediately and, if required, the relevant health authorities
- ensure that there are adequate emergency medical supplies aboard all aircraft
- arrange for disinfecting procedures of the aircraft in the event of an outbreak
- in the event of an outbreak, facilitate frequent pilot communication with flight attendants, air traffic
- control, and any other necessary personnel or authorities
- create educational leaflets informing passengers of safety measures in the event of an outbreak
ensure compliance with international, federal and state standards, regulations and guidelines concerning communicable diseases, including notifications to passengers and appropriate health authorities
With the increase in global air travel, particularly throughout Asia, airlines must be prepared, and their employees thoroughly trained, to handle an emergency situation arising from a medical outbreak. Airlines should comply with international and federal regulations, conduct regular training of crew members and staff, have plans and procedures in place to respond to outbreaks (whether the outbreak occurs on the aircraft or following transportation of a passenger with a contagious disease), and take precautions before a situation occurs. Airlines also should make every effort to document the measures they have taken to prevent contagion and be prepared to demonstrate that they acted reasonably under the circumstances.
1 See http://www.cnn.com/2007/HEALTH/07/03/tb.speaker/index.html; http://abcnews.go.com/GMA/OnCall/Story?id=3231184&page=2 ; see also Centers for Disease Control and Prevention, Traveler Fact Sheet, http://www.cdc.gov/tb/xdrtb/travellerfactsheet1.htm.
2 See World Health Organization, Tuberculosis and Air Travel: Guidelines for Prevention and Control 10-14 (2d ed. 2006), http://www.who.int/tb/en.
3 49 U.S.C. § 41705 (2003).
4 14 C.F.R. § 382.51 (a), (b). A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.” 14 C.F.R. § 382.51(b)(2).
5 14 C.F.R. § 382.51(b)(3).
6 14 C.F.R. § 382.51(b)(4).
7 Violations of the ACAA generally will result in an investigation by the Department of Transportation and possibly the imposition of fines against the airline; however, there is no implied cause of action to sue on that basis. See, e.g., Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004); Love v. Delta Airlines, 310 F.3d 1347 (11th Cir. 2002).
8 See 42 C.F.R. § 71.21(b).
9 See http://www.cdc.gov/ncidod/dq/nprm/docs/42CFR70_71.pdf.
10 See Price v. Canadian Airlines, 429 F. Supp. 2d 459, 464 (D. N.H. 2006); Kirkham v. Societe Air France, No. Civ. A. 03-1083 9 (JD), 2004 WL 3253704, at *5 (D.D.C. Nov. 2, 2004), aff’d, 429 F.3d 288 (D.C. Cir. 2005).
11 See N. Pieter M. O’Leary, Cock-a-Doodle-Doo: Pandemic Avian Influenza and the Legal Preparation and Consequences of an H5N1 Influenza Outbreak, 16 Health Matrix 511, 532 (2006).
12 See Ruwantissa Abeyratne, International Responsibility in Preventing the Spread of Communicable Diseases through Air Carriage–The SARS Crisis, 30 Transp. L.J. 53, 61 (2002) (illustrating various liability situations).
13 In those cases where the Warsaw Convention is the applicable treaty, the analysis of an Article 17 accident is generally the same; however, the airlines’ defenses may vary depending on whether the Warsaw Convention, as unamended or supplemented, applies to the particular transportation.
14 El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999).
15 Air France v. Saks, 470 U.S. 392, 405 (1985).
16 Id. at 406 (“[w]hen the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident”).
17 An accident may arise where the airline crew fails “to take certain necessary vital steps” in response to a situation such that this inaction “could quite naturally and, in routine usage of the language, be an event or happening.” Olympic Airways v. Husain, 540 U.S. 644, 656 n.10(2004).
18 See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991); Ehrlich v. American Airlines, 360 F.3d 366 (2d Cir. 2004); In re Air Crash at Little Rock, Arkansas on June 1, 1999, 291 F.3d 508 (8th Cir. 2002).