| by Ruwantissa Abeyratne
( October 15, 2014, Montreal, Sri Lanka Guardian) The deadly Ebola 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 and scaled up an international, regional and national campaign to bring the outbreak under control. There have been serious emergency response plans and action taken by countries across West Africa in a desperate and concerted effort to contain the disease. Regretfully, the scale of spread of the deadly Ebola virus has overtaken the preventive and containment measures taken so far. In the deadliest Ebola outbreak so far, families are losing loved ones and fear of infection is having huge impacts on everyday life in affected regions A recent report states: "4033 people have died so far, with 8399 probable or suspected cases. However in reality, this number could be much higher due to under reporting of the disease". Already Ebola cases have been reported in the United States, Spain and Germany.
From an aviation perspective, it is heartening to note that some action has been taken. The heads of the World Health Organization (WHO), the International Civil Aviation Organization (ICAO), the World Tourism Organization (UNWTO), Airports Council International (ACI), International Air Transport Association (IATA) and the World Travel and Tourism Council (WTTC) decided to activate a Travel and Transport Task Force which will monitor the situation and provide timely information to the travel and tourism sector as well as to travellers. ICAO has issued a statement saying: "The risk of transmission of Ebola virus disease during air travel is low. Unlike infections such as influenza or tuberculosis, Ebola is not spread by breathing air (and the airborne particles it contains) from an infected person. Transmission requires direct contact with blood, secretions, organs or other body fluids of infected living or dead persons or animals, all unlikely exposures for the average traveller. Travellers are, in any event, advised to avoid all such contacts and routinely practice careful hygiene, like hand washing.
The risk of getting infected on an aircraft is small as sick persons usually feel so unwell that they cannot travel and infection requires direct contact with the body fluids of the infected person. Most infections in Liberia, Guinea and Sierra Leone, are taking place in the community when family members or friends take care of someone who is ill or when funeral preparation and burial ceremonies do not follow strict infection prevention and control measures".
Since Ebola is not transmitted through the air and cannot infect a person unless when a person who already outwardly manifests the disease transmits it, which precludes infection during the incubation period. Therefore, an airline would in all probability not be able to detect a person who boards its aircraft, while showing no signs of the disease during the incubation period. However, in the unlikely event of a person who has manifested symptoms of the disease (after completing the incubation period), escapes the scrutiny of airline staff at pre-boarding, and travels by air, there could be a strong likelihood of that person infecting several others on board (particularly taking into account the use of common toilets).
The liability of the air carrier for death or injury caused to a passenger is covered by the Warsaw Convention of 1929 which was replaced by the Montreal Convention of 1999 (With regard to those States that have not yet ratified the Montreal Convention but had ratified the Warsaw Convention, the Warsaw principles, which are similar to the liability principles of the Montreal Convention, will apply). Article 17 of the Montreal Convention states: "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". Article 17 of the Warsaw Convention says: "The carrier is liable for damage sustained in the event of the 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 or disembarking. One notices subtle differences between the two provisions such as the Montreal Convention which says "in the case of death or bodily injury..." whereas the earlier Warsaw Convention says" in the event of the death or wounding..." The more visible of the differences lie in "wounding or any other bodily injury" on the one hand and "bodily injury" on the other.
The element of "bodily injury" introduced as an exclusive head of liability by the 1999 Montreal Convention has effectively precluded a claimant from claiming for mental injury, unless such mental injury was caused as a result of a bodily injury. A person cannot therefore claim compensation from an airline for mental distress caused by the apprehension that the person seated next to him showed signs of sickness that was perceived to have been symptomatic of Ebola.
According to Article 17 of both Conventions, there have to be two elements of carrier liability. Firstly, death or injury has to be caused by an "accident". Secondly, the accident should take place on board the aircraft or in the course of any of the operations of embarking or disembarking. One has to address what an "accident" is, and what the "course of operations of embarkation and disembarkation" are. What constitutes an "accident" is not defined either in the Warsaw Convention or in the Montreal Convention. Courts have held that an accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. Therefore if the event on board an airplane is an ordinary, expected and usual occurrence, such an event cannot be deemed an accident. In one case the court held that "accident" in the context of air carrier liability has to be interpreted in its common sense meaning of an untoward event, out of the ordinary, triggered by some external event. Events which have been identified as "accidents" in this context range from a flight attendant spilling hot water or scalding coffee on a passenger; assault by an airline staff; injury caused by a food trolley; and a fall inside the aircraft or from the aircraft due to faulty steps or a stairway. Pre existing injury or a health condition that gets worse as a result of air travel would not come within the purview of an "accident".
The word "accident" has been somewhat stretched in certain circumstances. In a decision handed down by the US Supreme Court in 2003, where an asthmatic patient, who requested a non smoking seat and was given one by the airline three rows next to the economy class seat and therefore suffered the deleterious effects of smoke inhalation which caused his death on board, the court held that there was more than a single injury-producing event and that both the passenger's exposure to the second hand smoke and the refusal of the flight attendant to assist the passenger (by assigning to him a seat away from the smoking section in accordance with the passenger's request) contributed to his death.
As for "embarkation and disembarkation" courts have refused to accept the simplistic notion that they pertain to just the acts of getting into and out of the aircraft. These heads of liability, for purposes of identifying an airline's fault, are based on the location of the passenger when the event occurred; the activity he was involved in at the time and the element of control exercised by the airline at the time of death or injury.
In this context, one should note the peculiar nature of airline liability. The fundamental general principle of liability - that a person is presumed innocent until proven guilty - has been upended in airline liability and the presumption of guilt is imposed by the airline which has to prove, under Article 20 of the Montreal Convention that if it 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 its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger.
Finally, how much is the carrier liable for? Liability is set in two stages: for damages arising under Article 17 not exceeding 100,000 Special Drawing Rights for each passenger, the carrier will not be able to exclude or limit its liability. This is called strict liability where the carrier's fault or innocence is not taken into consideration. However, the carrier is not liable for damages to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the it proves that: such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or such damage was solely due to the negligence or other wrongful act or omission of a third party.
The author is President/CEO of Global Aviation Consultancies Inc. Montreal. He is former Senior Legal Officer of the International Civil Aviation Organization.