Ebola causing a headache for airlines, October 2014

With the rapid spread of the deadly Ebola virus bringing people out in a cold sweat, airlines may be concerned about their potential exposure to claims. Drawing on our experience of previous worldwidehealth threats, such as Swine Flu, SARS and tuberculosis, we consider the real extent of airlines’ exposure.

What is Ebola Virus Disease?

Ebola Virus Disease (or “Ebola” as it is more commonly known), is a severe, often fatal illness in humans. It has an average fatality rate of around 50%, although the rate has been as high as 90% in previous outbreaks.

The first symptoms of Ebola are similar to a common cold/flu and include the sudden onset of fever, fatigue, muscle pain, headache, anda sore throat. However, these symptoms are followed by vomiting, diarrhoea, rashes, symptoms of impaired kidney and liver function,and both internal and external bleeding.

The virus is spread from human-to-human via direct contact (through broken skin or mucous membranes, such as the eye lids) with theblood, secretions, organs or other bodily fluids of infected people, and with surfaces and materials(e.g. bedding, clothing) contaminated with these fluids. An important point for airlines is that Ebola is not currently believed to be airborne, although there is some suggestion that the virus couldmutate.

The incubation period for Ebola is 2-21 days (more usually 4-10 days). Importantly, a person isnot infectious until they start to show symptoms.

Potential risk factors for airlines

Potential risk factors for airlines could include: (a) failing to deny at check-in boarding to apassenger who has Ebola symptoms; (b) failing to check that passengers are not knowingly infected or have not knowingly been in close contact with someone else who is infected; (c) failing, in flight, to isolate apassenger who has Ebola symptomsor to await the attendance of medicalauthorities at destination beforedisembarking passengers; (d) failingto trace fellow passengers when theairline is notified that a passenger on one of its flights had Ebola.

However, the World Health Organisation (WHO) has not advised any restrictions on normal travel or the closure of borders and a number of significant hurdles need to be overcome by claimants before liability can be established.

Transmission during carriage by air

The most significant hurdle that apassenger claimant has is to establish that he/she has been infected during carriage by air. For the vast majority of claims that are governed either by the Warsaw or Montreal Conventions, or legislation applying similar such provisions to domestic carriage, this means proving that the infection occurred during a flight or during the period of embarkation or disembarkation. Where claims are not governed by these provisions, local law is likely to adopt a common senseapproach based on the actual periodin which a passenger is under the defacto control or responsibility of a carrier, including the flight itself.

Therefore, a potential claimant would firstly need to prove that he or she contracted the disease during this timeframe, a matter which may well present significant evidential difficulties. Without very clear evidence, it is always arguable that the passenger became infected at some other time, including while at home, at work and on the way to and from airports. In such circumstances, the carrier should notbe held liable. This is also likely to be the case if infection takes place in check-in queues, security and immigration check-points, duty free shops and public lounges used by a number of airlines.

Even if this first hurdle can besuccessfully negotiated, there isthen a further requirement on thepassenger to show that the spread ofthe disease constituted an “accident”for Convention purposes. In manyjurisdictions, an “accident” is construed as an unexpected or unusual event external to the passenger.

Whilst clearly external, it is questionable whether the transmission of Ebola from one passenger to another would beregarded as unexpected or unusual.It would be difficult to suggest thatthe transmission of the common coldvirus from one person to another onan aircraft would be unexpected orunusual. One might therefore questionwhy the transmission of Ebola – avirus which just happens to havemore serious symptoms – should beregarded as being any different.

Where a passenger exhibits symptoms of Ebola during flight, appropriate steps should be taken to isolate that passenger. Failure to take such steps “in the face of a known and serious risk” (as was the case in Olympic Airways v Hussein, where an asthmatic passenger who was sensitive to cigarette smoke died because his repeated requests to switch seats were declined) could constitute an accident.

It is possible that a claimant may try to argue that a failure on the part of the airline to screen passengers amounts to an “accident” for Convention purposes. In such a case, and where there is (currently) no specific obligation on airlines to screen passengers, comparisons could be drawn with the DVT and Air Travel Group Litigation, where it was held that a failure to warnpassengers of precautions did notconstitute an accident.

Against this background of evidential problems and lack of legal clarity, it is perhaps not surprising that the threat of major claims connected to the outbreak of Swine Flu and SARS failed to materialise. However, in the absence of a clear precedent precluding Convention claims, they will likely be made and they will have to bedefended.

Flight cancellations and deniedboarding

On 8 August 2014, the DirectorGeneral of WHO issued TemporaryRecommendations in relationto the ongoing Ebola outbreak.These include exit screening at allinternational airports, ports and border crossings in Guinea, Liberia, Sierra Leone and Nigeria. The screening should consist of, at a minimum, the following measures: a questionnaire, a temperature measurement, and, if there is a fever, an assessment of the risk that the fever is caused by Ebola.Any person with an illness consistentwith Ebola (whether or not they are in the above-named countries) shouldnot be allowed to travel, unless thetravel is part of an appropriate medical evacuation.

In the absence of airport screening, airlines may wish to consider introducing their own passenger checks (e.g. basic questioning during check-in about a passenger’s current health and recent travel) in order to afford themselves better protection.The general conditions of carriage ofmost airlines contain a right to refuse carriage if necessary to comply with government regulations or if carriage endangers the safety and health or comfort of other passengers and the crew. Furthermore, where boarding isdenied on reasonable health grounds,the remedies available to passengersarising under EU Regulation 261/2004will not apply.

However, this creates a clear tension between the rights of the other passengers to be protected frominfection and the rights of the individual to be transported as contracted. In reality, unless passengers disclose their medical condition or exhibit clear Ebolasymptoms (very difficult at the earlystages of Ebola where the symptomsare flu-like) these provisions will be of little benefit to the carrier. There are specific air carriage regulations such as the US Air Carrier Access Act or broader anti-discrimination regulationselsewhere which may prevent refusalof carriage unless there is somethingmore than just a “reasonable belief”that someone has an infectiousdisease. Strictly speaking, only qualified physicians have the right to impose restrictions on a passenger’s travel.

We have already seen cancellationof a significant number of charterflights to Guinea, Liberia and SierraLeone. Liability for cancellations may be limited if a cancellation is due to government action, but where EU Regulation 261/2004 applies, thecarrier will still remain obliged toprovide a refund or re-routing, pluscare and assistance for the passenger.Liability to pay compensation under the Regulation is unlikely to arise, however, on grounds of “extraordinary circumstances”. Where a flight isdelayed as a result of a passengermaking a joke about having Ebola, asoccurred recently when a US Airwaysflight was grounded for nearly twohours at Punta Cana, it is arguablethat this too should be categorised as “extraordinary circumstances”, such that compensation will not be payable.

Where physicians are called to examine a passenger but a diagnosis cannot be made without delaying the flight, carriers will need to determine whether to delay the entire flight and providenecessary care and assistance anddeal with claims or delay the suspected passenger and deal with any claim for delay and discrimination by that passenger alone.

Public law liability

Public law liability is also a possibility – airlines must still comply with international health regulations and the laws of the countries to which they operate services.

Following a series of infections of communicable diseases (tuberculosis, measles) on board aircraft in the 1980s and 1990s, international regulations (ICAO), standards and recommended practices (WHO, IATA) were adopted to help airlines and airports take effective measures to prevent the spread of communicable diseases. Following the SARS outbreak, several governments, including the United States government, proposed to amend domestic legislation imposingsignificant fines on carriers whichallowed the outbreak of diseasesbeyond international borders asa result of failing to comply withregulations.

The share prices of a numberairlines have already been affectednegatively by the threat of Ebola, but it is too early to determine whether the current outbreak will create a more fundamental problem forairlines, including, above all, a global downturn in the demand for air travel. The media’s coverage of the SARS pandemic and the handling of the outbreak by certain governments created pandemonium and panic. It was largely this hysteria, rather than the illness itself, that had a devastating impact on airline finances. Today, airlines and governments are better prepared and claimants continue to face significant hurdles in obtainingdamages. In the meantime, we willmonitor the progression of the virusand epidemiological investigations and report on any significant claims activity.

For more information, please contact Victoria Seale, Associate, on +44 (0)20 7264 8556 or victoria.seale@hfw.com, or Edward Spencer, Partner, London, on +44 (0)20 7264 8314 or edward.spencer@hfw.com.