COVID-19 Pandemic: The Potential Liability Of Air Carriers In Nigeria

By Ugo Ezeugwa Esq, LLM¹

INTRODUCTION

After the World Health Organization (“WHO”) declared coronavirus a pandemic on 11th March, 2020, various countries around the world closed their airports and suspended flight operations in a global effort to contain the spread of the virus.

Presently, many countries have began to implement restart plans for air carriers after several months of lockdown occasioned by Covid-19 pandemic. In Nigeria, the government announced the resumption of international flight operations on 5^th September, 2020 amid the easing of Covid-19 restrictions.

As the air carriers restart operations, the air carriers and stakeholders are worried about the potential liability of air carriers to passengers in the light of Covid-19 pandemic. Some of the major concerns relate to situations where, a passenger contracts coronavirus during a flight or is exposed to a passenger infected with the virus, including fear of infection due to the exposure.

In this article, an attempt shall be made to discuss these concerns within the scope of the applicable international treaties and national laws.

LEGAL FRAMEWORK FOR LIABILITY 

(i)       Safety and public health regulations 

Chicago Convention:

By virtue of Article 14 of the Chicago Convention, Contracting States are mandated “to take effective measures to prevent the spread by means of air navigation of cholera,

• Ugo Ezeugwa, LL.M, [email protected], 08168358055, Managing Partner, StrongTower & Barfields, Lagos, Nigeria. The contents of this article are for general information purposes only and do not constitute legal advice. Concerned readers may seek legal advice relative to their specific circumstances.

typhus (epidemic), smallpox, yellow fever, plaque and such other communicable diseases as the Contracting States shall from time to time decide to designate.”

Standard and Recommended Practices ( “SARPs”)  which are contained in the Annexes to the Chicago Convention consist of mandatory preventive measures related to the spread of communicable diseases by air navigation.

Annex 9 to the Chicago Convention deals with “Facilitation”.

8.12 requires that “Contracting States shall comply with the pertinent provisions of the

International Health Regulations (2005) of the World Health Organization”

Specifically, 8.16 requires that “(a) Contracting State shall establish a national aviation plan in preparation for an outbreak of a communicable disease posing a public health risk or public health emergency of international concern.”

8.15 stipulates that “the pilot –in – command of an aircraft shall ensure that a suspected communicable disease is reported promptly to air traffic control, in order to facilitate provision for the presence of any special medical personnel and equipment necessary for the management of public health risks on arrival.”

8.15.1 provides that “when a public health threat has been identified, and when the public health authorities of a Contracting State require information concerning passengers’ and/ or crews’ travel itineraries or contact information for the purposes of tracing persons who may have been exposed to a communicable disease, that Contracting State   should accept the “Public Health Passenger Locator Form in Appendix 13 as the sole document for this purpose.”

The International Civil Aviation Organization (“ICAO”) published “Guidelines for States Concerning the Management of Communicable Disease Posing a Serious Public Health Risk”. The Guidelines include direction on airport closures and flight restrictions, both of which should not be considered except in the most exceptional circumstances. In addition, the Guidelines provide instruction on Airlines Preparedness; however, the Guidelines note that “It is not the role of airline staff or handling agents to have prime responsibility for screening and managing travellers who may have a communicable disease; this is usually a public health responsibility.”

The airlines should  (i) establish general  guidelines  for passenger agents who may be faced with a suspected case of communicable disease, relevant to airline operations , at the airport;  and (ii) co-operate  with airport  and public  health authorities on logistics, e.g dealing with a sick traveller.

Furthermore, the ICAO Guidelines also address air carrier in- flight preparedness  for illness  by establishing (i) a system  enabling cabin crew to identify travellers suspected  of having  a communicable disease; (ii) a system of managing travellers  who are suspected  of having  a communicable disease; and (iii) procedures for informing  air traffic control  that a case  of a communicable  disease  is on board , so that the public health authority at the destination can be advised appropriately in a timely manner. –ICAO Annex 9,8.16, and Appendix 1).

Finally, the ICAO Guidelines recommend policies related to aircraft maintenance (removal  of re-circulated  air filters, venting of vacuum waste tanks, and removing bird debris,); aircraft cleaning (appropriate protective equipment, surfaces to be cleaned, cleaning agents/ disinfectants and disposal) ; cargo and baggage handling (handlers should wash  their hands frequently and co-operate with public health authorities) ; and that air  carriers should establish methods to continue operating with greatly reduced staff numbers.

WHO ‘s International Health Regulations:

WHO’s International Health Regulations, 2005 ^[1] is aimed at ensuring a coordinated approach for prevention, detection, response and investigation of communicable diseases including setting out procedures for dealing with public health emergencies.

WHO works closely with ICAO to introduce effective measures for curbing the risk posed by communicable diseases to international aviation.

Nigeria’s Provisional Quarantine Protocols:

Following the global outbreak of Covid-19 pandemic, Contracting States including Nigeria are enjoined to implement ICAO SARPs and WHO International Health Regulations and make national regulations/ protocols to curb the risk of its spread through air travel.

In Nigeria, air carriers are required to comply with the   Provisional Quarantine Protocols for travellers arriving Nigeria from any country which was recently issued by the Presidential Task Force (PTF) on Covid-19^[2]

The protocol requires that passengers undergo Covid-19 PCR test which must be carried out between 72 hours to 7 days prior to departure and comply with health declaration/self-reporting formalities. Prior to boarding, passengers shall undergo thermal screening for fever and subjected to questioning for Covid-19 symptoms. Non- Nigerian passengers would be refused entry and returned to the point of embarkation at the cost of the defaulting airline. Nigerians will be allowed entry but subject to 14 days of mandatory quarantine at a facility approved by government and at cost to the passenger(s). Defaulting airlines will be fined USD3,500 per passenger for failure to comply with the pre-boarding requirements.^[3]

On arrival in Nigeria, the passengers shall be screened by Port health officials and present electronic or print-out evidence of pre-boarding PCR test and evidence of payment/appointment for repeat PCR test in-country. Passengers shall also present their international passport for clearance through the Nigerian Immigration System’s Migrant Identification Data Analysis System (MIDAS); the bio-data page including passengers’ picture will be forwarded to all Covid-19 PCR Sample Collection Centers to enable proper identification before sample collection. Passengers will be required to proceed on selfisolation for 7 days and on the eighth day, present themselves for a second Covid-19 PCR test. If they test negative, they will end isolation. Those who test positive on the 8^th day will be managed based on the National Guidelines for Covid-19 treatment.

Travellers reporting or developing symptoms of Covid-19 on arriving Nigeria or during screening will not be allowed to self-quarantine and will be placed on institutional quarantine. For deportees, if one person tests positive, for Covid-19, all close primary contacts will be required to undergo enhanced screening and follow –up PCR test, if necessary. Passengers will be monitored by public health officers during the period of self-isolation / quarantine for symptoms of Covid-19 and treatment. For this reason, passengers are required to provide a functioning telephone number on their online registration forms prior to boarding.

Why Air Carriers should comply with Health and Safety Regulations

It is important for air carriers to adhere to the international and national safety and health regulations/protocols in order to avoid potential liability to passengers and regulatory sanctions.

If air carriers do not adhere to the regulations/protocols they may be potentially exposed to legal action for:

• failure to warn passengers of the risk of contracting Covid-19 during a flight; – failure to deny boarding to a passenger that exhibits symptoms of Covid-19 or check passengers for symptoms of Covid-19 before boarding;
• failure to isolate infected passenger in-flight and /or facilitate necessary medical procedures;

-failure to provide an adequate and safe cabin ventilation system;

• failure to ensure regular and proper cleaning/disinfecting of an aircraft cabin, and;
• failure to provide proper system for track down and contact tracing, especially when it is necessary to inform co- passengers after a passenger has been diagnosed of Covid-19 symptoms

 (ii) Montreal Convention

In Nigeria, the liability of air carriers to passengers in international carriage  is governed by the Convention for the Unification of Certain Rules Relating to International Carriage by Air^[4],  (“Montreal Convention”), while the liability in regard to non-international carriage is governed by the  Modifications to the Convention for the Unification of Certain Rules relating to International Carriage by Air which have been incorporated in the Third Schedule of the Civil Aviation Act, 2006” (“the Modifications to the Convention”).^[5] Article 17 of the Montreal Convention⁷ provides that the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon the 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.

Meaning of Accident:

The crucial question which the courts will have to resolve is whether the injury or death resulting from Covid-19 amounts to an accident so as to hold air carriers liable under the Montreal Convention.

In Air France v. Saks⁸, US Supreme Court, in determining the meaning of accident in relation to Warsaw Convention (with similar provision  in Montreal Convention), stated thus:

“Liability under article 17 of the Warsaw Convention arises only if the passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries.”

The US Supreme Court also noted that liability will not arise if the injury results from the passenger’s own internal reaction to the ‘usual, normal and expected operation of the aircraft.’

Courts of different jurisdictions have adopted the definition of accident in Air France v

Saks. The English Court agrees with the Air France v. Saks’ definition of “accident” in Chaudhari v. British Airways Plc⁹and reasoned that the word “accident” focused attention on the cause, rather than the effect of the accident and that the word “accident” was not to be construed by reference to the passenger’s peculiar condition, but was properly to be defined as something external to the passenger.

In the Australian case of Povey v. Qantas Airways Ltd¹⁰, the High Court of Australia held that “accident” is a concept which raises two questions; first, what happened on board  (or during embarking or disembarking) that caused  the injury of which complaint  is made,  and second;  was what happened unusual  or unexpected?

 

• See equivalent provisions in the Modifications to the Convention for non-international carriage.
• 470 U.S.105 S Ct 1338 (1985); 18, AV1 18,538, 1985, 84 L.Ed.2d 289 (1985).

⁹The Times, May 7, 1997, CA.

¹⁰ 2003, WL 23000692 (VCA, 2003), special leave to appeal granted by, 2004 WL 3222486 (HCA 2004) and affirmed by, 2005 WL 1460709 (HCA 2005).

In the Canadian Case of Quinn v. Canadian Airlines Int’l Ltd^[6], an Ontario Court, relying on Saks, held that the degree of turbulence encountered on the flight in the instant case could not be said to have been unusual or unexpected and did not constitute an accident under article 17 of the Warsaw Convention.

It has been suggested that there will be an “accident” if there is a hijacking or terrorist attack or severe turbulence.^{[7][8][9][10]}.

In Husserl v.  Swiss Air Transport Company Ltd¹³, it was held that aircraft hijacking was an accident within the meaning of article 17 of the Warsaw Convention.

In Evangelismo v. TWA¹⁴ and Day v. TWA¹⁵ , terrorist attack was regarded as an accident within the ambit of article 17 of the Warsaw Convention.

The US courts have held that the following incidents come within the scope of accident;

• Cabin crew spilling hot drinks onto passengers^[11].
• Heavy landing causing a neck injury^[12];
• Serving of infected food to passengers causing food poisoning^[13];
• Severe turbulence causing loss of hearing and balance and speech abnormality^[14][15];

Passenger to passenger tort (such as assault inside the aircraft) may constitute an accident. In Lahey v. Singapore airlines Ltd²⁰, it was held that assault on a passenger by a copassenger constitutes an accident and damages are recoverable for injuries sustained thereby.

Oliver v. Scandinavian Airlines System Inc.^[16], a drunken passenger fell unexpectedly on another passenger and injured her thereby; it was held that the injury constituted an accident under the Warsaw Convention.

However, it is not always easy to reconcile the numerous cases on the meaning of

‘accident’²². A key²³ consideration emerging from the decided cases is whether the event causing the injury results from the usual, normal and expected operation of the aircraft. If it does, it is not an accident within the meaning of the Convention.

Furthermore, for an event or occurrence to come within the scope of “accident” it must be unusual, unexpected and external to the passenger. It remains to be seen if the courts would view Covid-19 pandemic, as an event which is ‘unusual, unexpected and external’ to the passenger, in the light of the wide public knowledge of the existence of the pandemic.

The passenger must also prove that the ‘death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.’ Thus, it will be necessary for a passenger to discharge the onerous burden of showing that he contracted the coronavirus while on board the flight or during embarkation or disembarkation to ground liability against the air carrier.

Bodily Injury:

Another important issue is what constitutes ‘bodily injury’ within the meaning of the Montreal Convention. It appears that contracting a serious disease such as coronavirus constitutes a bodily injury. In the consolidated decision in King v. Bristow Helicopters & Morris v KLM,²⁴ the House of Lords held that compensable ‘bodily injury’ includes ‘the psychic infliction of physical injury during the flight even though not already manifested at the conclusion of the flight, for example a disease or illness contracted upon the aircraft through the contamination of the aircraft’s air supply.’

Emotional injury:

Any claim based on anxiety or emotional distress arising from fear of exposure to coronavirus, without proof of physical injury is not maintainable under the Montreal Convention.  In Eastern Airline v. Floyd²⁵ the flight lost power in all three engines and about to ditch in the ocean; however, miraculously, the engines restarted and the plane landed safely. Nonetheless, the passengers were terribly frightened and many suffered

• Carriage by Air, Fountain Court Chambers, Butterworths, London, 2001, p.95.
• Cobbs, (1999) 24 Air and Space Law, 121 at 123.
• 1 Lloyd’s Rep.745 (H.L 2002).
• 111 S. Ct 1489 (1991).

severe emotional injury. The narrow issue before the Supreme Court was whether men^[17]tal or psychic injury alone is recoverable. The court held that an air carrier cannot be held liable under article 17 when an accident has not caused a passenger to suffer death, physical injury or physical manifestation of injury.

In Croucher v. Worldwide Flight Services, Inc.²⁶, the passenger claimed damages for emotional distress resulting from coming into contact with biomedical waste in an air sickness bag that was allegedly left from a prior flight. The passenger also alleged emotional distress from fear of contracting a disease from the waste. The plaintiff alleged no bodily injury. The court held that the plaintiff’s claim was not maintainable.

Defences:

It is noteworthy that the Montreal Convention avails the air carriers some defences. If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from his liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage^[18]. Where for instance,  an air carrier warns a passenger against the risk of sitting close to a passenger  showing symptoms of   Covid-19 , and the passenger nevertheless ignores such warning , and contracts the virus thereby , the air carrier may plead the defence of contributory negligence.

In Chisholm v .British European Airways^[19], a passenger was injured after she had left her seat when, as a result of turbulence, the passengers had been warned to fasten their seat belts and remain seated. The plaintiff disregarded the warnings given by illuminated signs, by the aircraft’s public address system, and also by the cabin crew to each passenger. It was held that the carrier was not liable in that his employees had taken “all necessary measures” to avoid the damage.

Though Chisholm was decided on article 20 of the Warsaw Convention which dealt with a different situation^[20], its significance to the present analysis lies in the fact that if it were to be decided on article 20 of the Montreal Convention, the carrier would easily be availed of the defence of contributory negligence.

Where compensation is claimed by reason of death or injury of a passenger, by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from his liability to the extent that he proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger.^[21]

CONCLUSION

It is vital for air carriers to adhere to the international and national safety and health regulations/protocols to avoid potential liability to passengers and regulatory sanctions.

However, whether Covd-19 scenario will create liability for air carrier depends on legal and factual considerations. It remains to be seen how the courts will decide cases that may be brought against air carriers by passengers as a result Covid-19.

The courts may be called upon to  determine whether Covid-19 constitutes an accident within the context of the Montreal Convention and the relevant case law, particularly, Air

France v Saks.  Are the courts going to construe Covid-19 pandemic, as an event which is ‘unusual, unexpected and external’ to the passenger, in the light of the wide public knowledge of the existence of the pandemic?

 

Besides, passengers will often face onerous burden of showing that they contracted the coronavirus while on board the flight or during embarkation or disembarkation in order to hold the air carriers liable.

[1] 2007.

[2] Covid-19 Response: Provisional  Quarantine  Protocol for Travellers  Arriving in  Nigeria from any Country issued by the Presidential Task Force on Covid-19 on 21^st August, 2020 and which took effect on 5th September, 2020.

[3] Id.

[4] 1999.

[5] It is pertinent to note that similar principles of liability discussed here apply to the air carrier in both international and non-international carriage.

[6] {1994} 18 O.R 3d 326.

[7] Chitty on Contracts Vol. 2, Specific Contracts, 28 ed. p.390.

[8] F.2d 1240 (2d Cir.1973).

[9] F.Supp.154 (D.P.R.1975).

[10] F.2d 31 (2d Cir.1975).

[11] Lugo v. American Airlines 686 F Supp 373 (DC PR, 1988) 21 AVI    18,020; Ganzales  v. Taca International Airlines 23 Avi 18, 431 ( Ed La 1992). In  Price  v. KLM – Royal Dutch Airlines 107 F. Supp.2d 1365 ( N. D . Ga.2000), the court held that being struck by a trolley (food cart) was an unexpected event which is external to a passenger and thus could constitute an accident.

[12] Salce v. Aer Lingus Air Lines 19, AVI  17,377 ( SD NY, 1985).

[13] See Abdul Rahman Al- Zamil v. British Airways Inc.  770 F 2d 3 (US Court of Appeals, 2^nd Circuit,1985);19 AV1 17, 646.

[14] Weintraub v. Capital International Airways 16 AVI 17, 911 (NY City Civ Ct, 1980).

[15] F. Supp. 2d.464 (S.D.N.Y. 2000).

[16] Av. Cas. (CCH) 18, 283 (D.Md. 1983).

[17] F. Supp. 2d 501, 502 (D.N.J 2000).

[18] Art. 20 of the Montreal Convention.

[19] {1963} 1 LIoyd’s Report, 626.

[20] It provides that a carrier is not liable if he proves that he and his employees or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

[21] Art. 20 of the Montreal Convention; see similar provision in  Art.20 of the Modifications to the Convention.