Flying with COVID-19: Navigating Potential Passenger Claims Against Airlines

Highlights

In the wake of the COVID-19 outbreak, airlines are faced with ever-changing governmental policies, regulations, guidelines, and best practices to address passenger and crew safety. Whether an airline may be responsible for passenger negligence claims will depend in large part on whether the airline should have known or suspected that a passenger or crew member presented a health risk and the reasonableness of the airline's response once it became aware of the risk. Causation will be difficult to prove because of the contagious nature of COVID-19. Under the Montreal Convention, proving an Article 17 "accident" will be an uphill battle because: (i) a passenger could have contracted the illness at any point before or after boarding; (ii) given the widespread nature of this pandemic, contracting the virus may not be "unusual or unexpected" so as to constitute an "accident" under Article 17; and (iii) fear of contracting the virus will not be recoverable. On March 16, 2020, a U.S. carrier was held before takeoff at JFK International Airport in New York after a passenger alerted flight attendants that they were exposed to someone who had tested positive for coronavirus. The individual received the information immediately before takeoff. Although the passenger did not show any symptoms, everyone deplaned and the aircraft was disinfected. The incident was reported to the Centers for Disease Control and Prevention (CDC). After a 3.5-hour delay, the flight departed for Seattle.

Situations like this will continue to occur and raise numerous liability questions for carriers, including: What if the airline missed symptoms shown by a passenger? What if someone becomes infected after landing and blames the airline for ineffective cleaning? What if a crew member decides to isolate a compromised passenger rather than remove them from the aircraft?

Holland & Knight reviews several regulations guiding airline conduct during the COVID-19 outbreak, potential carrier liability for domestic and international carriage, liability related to denied boarding, delays and cancellations, and best practices for the airlines.

International Regulations

The World Health Organization (WHO) and the International Civil Aviation Organization (ICAO) are leaders in the global efforts aimed at containing the spread of COVID-19 through air transportation. WHO is the lead United Nations (U.N.) agency for the management of the outbreak and provides all necessary technical and operational support to respond to it.1 In 2005, WHO developed a set of international health regulations (IHRs) that entered into force on June 15, 2007.2 This legal framework establishes rules for international coordination in the detection, investigation and response to contagious diseases and sets forth special procedures addressing a public health emergency, like COVID-19.3 Airlines are expected to comply with the IHRs, along with guidance issued by WHO.

ICAO's primary role in managing the outbreak is to support WHO by providing aviation-related information, participating in meetings, and serving as facilitator of information among member states and key organizations, including the CDC, the International Air Transportation Association (IATA), and Airports Council International (ACI).4 To that end, ICAO provides up-to-date information to its member states, and urges them to monitor the WHO website and adhere to the recommendations and guidance provided by WHO. ICAO also promulgates Standards and Recommended Practices (SARPs)5 in the form of Annexes to the Chicago Convention,6 which obligates its member states to take measures to prevent the spread of communicable diseases by air transport.7 For example, the Annexes require members to adhere to the IHRs, establish a national aviation plan to deal with an outbreak of a communicable disease, and follow various guidelines on tracing passengers following discovery of an outbreak, in-flight response to an infected passenger, and aircraft cleaning.8

U.S. Regulations

Airlines operating to the United States are expected to comply with Parts 70 and 71 of the Code of Federal 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 the U.S. and within the U.S. These regulations were updated in 2017 and contain monetary sanctions for noncompliance.9

Among other things, these regulations require airlines to report to the CDC any illnesses that occur on domestic flights between U.S. states and territories, and on international flights arriving in the United States.10 For international flights, such reports must be made before arrival to the CDC Quarantine Station.11

The CDC issued guidance to airlines on identifying potentially infected and reportable passengers, including those who exhibit: 1) a fever accompanied with one or more other health concern (e.g., skin rash, difficulty breathing, persistent cough, decreased consciousness or confusion, unexplained bruising, diarrhea, vomiting, headache, or appear otherwise unwell); 2) a persistent fever (more than 48 hours); or 3) symptoms or other indications of communicable disease.12

The Federal Aviation Administration (FAA) issued specific guidance for U.S.-based flight and cabin crews. The guidance was initially for flights destined for China but recently has been extended worldwide given the upgrade of COVID-19 to a pandemic. The FAA recommended that crew members not use public transit, only to travel with other crew members in company provided transportation, and minimize contact with ground staff. Finally, the FAA instructed crew members to self-monitor health, including taking their temperatures twice a day while on layovers and not taking any flights if any COVID-19...