AIRLINES ARE "CARRIERS" - WILL YOU BE "STRUCK DOWN" BY AIRBORNE DISEASE?

Transcription

1 AIRLINES ARE "CARRIERS" - WILL YOU BE "STRUCK DOWN" BY AIRBORNE DISEASE? Ashleigh Williamson Partner, HFW Hong Kong ashleigh.williamson@hfw.com Willis IATA AAPA Asia Pacific Aviation Insurance Conference Hong Kong, 3-5 March 2015

2 What we've had. Expanding trade routes in the 14th century spread the rat-borne Black Death across Europe and smallpox to the Americas in the 16th century. The Spanish flu of 1918, carried around the world by soldiers, killed between 50 and 100 million people many more than died in the First World War itself. SARS in 2003, devastating effect on the Asian economy, cases worldwide but a containment success story. Highly virulent H5N1 was contained in However it has not gone away, and is still circulating in poultry and ducks in almost the whole of Asia, remaining a major concern for human cases. In 2009 swine flu was first detected in April in Mexico, it turned up in London within a week. WHO declared a pandemic. MERS - Middle East Respiratory Syndrome - "Camel Flu" detected in Saudi in 2012, spread to US in 2014.

3 What's next from "viral chatter" to pandemic? "We are in a perfect storm for viral emergence. Viruses and other pathogens continually flow between species, often with no effects, sometimes mutating, once in a while causing illness. This mixing is known as "viral chatter". We like to think we discover viruses, but it's also the viruses discovering us." Mark Woolhouse, Professor of Infectious Disease Epidemiology at the University of Edinburgh "Just imagine if the Ebola outbreak in West Africa was transmitted by aerosol. If flu was just as lethal. If avian flu was as lethal in humans as it is in chickens. It only takes about three mutations to make it highly lethal. It s not out of the realms of possibility." Robert G Webster, Chair in Virology at St. Jude Children's Research Hospital, Memphis

4 The Four Factors 1. How easily the disease is transmitted; 2. How feasible it is to develop a vaccine and a treatment; 3. How long before symptoms are visible the patient is infectious; 4. The severity of the disease what proportion of people who contract it die.

5 [Day 7 - Homeland Security meet with Cheever. They believe the virus might be a terrorist action] Homeland Security: Is there anyway someone could weaponize the Bird Flu? Is that what we're looking at? Dr. Ellis Cheever: Someone doesn't have to weaponize the Bird Flu. The birds are doing that.

6 What risks do you face? Business interruption Reputational damage Public or criminal liability Civil liability to: Passengers Persons infected by passengers Crew Service providers (line maintenance, cleaning, ground handlers)

7 International Law IHR International Health Regulations (2005) Treaty which provides a framework for coordination of the management of events that may constitute a public health emergency of international concern. Imposes obligations on states as regards detection, assessment, notification and response to public health threats Drafted in collaboration with ICAO and IATA Guiding principle is to prevent, protect against, control and provide a public health response to the international spread of disease in ways which avoid unnecessary interference with international traffic and trade" (Article 2) Chicago Convention on Civil Aviation (1944) Article 14 - Prevention of spread of disease "Each contracting State agrees to take effective measures to prevent the spread by means of air navigation of cholera, typhus, (epidemic), smallpox, yellow fever, plague, and such other communicable diseases as the contracting States shall from time to time decide to designate, and to that end contracting States will keep in close consultation with the agencies concerned with international regulations relating to sanitary measures applicable to aircraft. "

8 The legal and regulatory framework ICAO WHO IHR 2005 IATA STATE LEGISLATION GUIDANCE LAWS CIVIL AVIATION DEPARTMENTS STATE PUBLIC HEALTH AUTHORITIES AIRLINE REGULATIONS 8

9 Business Interruption On 2 April 2003 the WHO issued the most stringent travel advisory in its 55- year history: "WHO is now recommending that persons travelling to Hong Kong and Guangdong Province of China consider postponing all but essential travel. This temporary recommendation will be reassessed in the light of the evolution of the epidemic in the areas currently indicated, and other areas of the world could become subject to similar recommendations if the situation demands. " "2003 was a testing year for Cathay Pacific. After a strong first quarter, the onset of SARS caused a sharp decline in passenger demand and several months of losses. The year saw an 18.4% decrease to 10.1 million in the number of passengers carried. During the SARS crisis we reduced our passenger schedule by 45% and parked 22 aircraft." Cathay Pacific Annual Report 2003

10 Differing national approaches US response to Swine Flu Non-interference Self-declaration by passengers encouragement of those with flulike symptoms not to travel No entry or exit screening of international passengers Public education campaign and guidelines for airlines in managing passengers with flu-like symptoms Hong Kong response to SARS Legislation permitting the enforced prevention of departure of any person having a history of contact with persons suspected of having SARS Comprehensive entry and exit temperature screening Mandatory health declaration forms Public education campaign

11 Reputational Damage going viral "WE CAUGHT SWINE FLU ON PLAGUE PLANE" HONEYMOON COUPLE TELL OF ORDEAL Daily Record, May 2009 BRITAIN'S first swine flu victims claim they caught the virus on a Thomson "plague plane". Scots Iain and Dawn Askham yesterday told of their ordeal for the first time. And Iain revealed: "There were five guys sat right by us who were coughing and sneezing all the way back, right from when we got on the plane from Mexico. Passengers warned over deadly virus: Officials trying to contact hundreds who flew on British Airways flight with man who contracted deadly SARS-like virus. Daily Mail online, 3 May 2014 "I actually said to Dawn, 'I think we're going to be getting off this plane with the plague." Media will always look for aviation angle Enduring myths about "contaminated air" and lack of cleaning If airlines are too heavy handed with precautions then passengers may be disgruntled and take to social media to complain

12 Liability to passengers who contract a disease Not fault/negligence-based Warsaw/MC99 Requirements: Bodily injury Caused by an Article 17 Accident : "unexpected or unusual event or happening that is external to the passenger" (Air France v Saks, US Supreme Court, 1985) Took place on board the aircraft or during embarkation/disembarkation Proof that illness contracted during carriage is a difficult burden to discharge due to incubation periods. WHO official statement: "Research has shown that there is very little risk of any communicable disease being transmitted on board an aircraft." However sitting in close proximity for long periods next to passengers who are symptomatic may increase chances of infection potential liability for failure to isolate a passenger or accept requests for alternative seating (Olympic Airways v Husain, US Supreme Court, 2004)

13 Liability to passengers for illness: Defences Challenge medical evidence regarding time/place of contagion. Get own experts If Warsaw, the Article 20 "all necessary measures" defence Contributory negligence fact-dependent and may be frowned upon by Court For MC99 claims for damages above 113,100 SDRs, demonstrate that carrier was not negligent (reference to industry standards, WHO and IATA guidance) Prevention is better than cure: check in staff, ground staff and cabin crew should be trained to be vigilant as to passengers displaying symptoms and to consider denying boarding. GCC usually permit this and may indeed be a public law obligation BUT uneasy overlap with passenger rights to be free from discrimination and places burden on non-medically-trained staff

14 Down the chain liability to those infected by passengers? ICAO guidance: "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" Airline must notify ATC if it is carrying a passenger with a suspected communicable disease (ICAO Annex 9, Standard 8.15) Provided that this is complied with, it should be difficult to build a case against the airline

15 Crew and other staff Domestic employment law applies; obligation to provide a safe place of work Potential problems if crew become afraid to work during an outbreak Crucial to provide specialist training and keep them informed of changes in public health guidance Ensure that line maintenance staff take particular precautions when removing bird remains from aircraft after bird strike Unions may be vocal. After the Swine Flu Pandemic the Association of Flight Attendants (AFA) petitioned the US FAA to take specific steps to prevent the spread of infectious diseases. They testified that managers were more concerned about appearance than safety

16 Third party service providers Level 2 text here (18 pt) Another Level 2 paragraph

17 Third party service providers Contractual protection is key IATA SGHA provides that, in respect of injury to employees, the Handling Company (a) may not claim against the Carrier; and (b) must indemnify the Carrier against third party claims unless the Carrier acted with intent or recklessly with knowledge that the injury would probably result Important to ensure no grounds for accusations of recklessness. Ensure third parties are fully informed of any disease-related incident and given adequate opportunity to take appropriate precautions Ensure that action of subcontractors does not expose airline to third party claims on the basis that they are your agent audit their procedures and ensure compliance with IATA guidance specific procedures for maintenance, cleaning and cargo and baggage handlers in the event of disease outbreak

18 "These new diseases are just a plane ride away" Dr Anne Schuchat, CDC Director at a 2014 press conference on MERS

19 If all else fails.

20 Lawyers for international commerce hfw.com

21 Wednesday 4 th March 2015