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Journal of Air Law and Commerce

ORCID (Links to author’s additional scholarship at ORCID.org)

https://orcid.org/0000-0003-1765-3510

Abstract

Commercial airplanes are vectors of infectious disease, advancing, if not sparking, global epidemics and potentially pandemics by exporting pathogens from endemic areas of the world to non-endemic places. For example, according to the global scientific community, the Zika virus was introduced to the Americas by air travel. Researchers also believe that infected mosquitos on international flights contributed to the worldwide spread of malaria, Middle East Respiratory Syndrome, and the West Nile virus. Most recently, governmental authorities worldwide, in addition to issuing national or local shelter-in-place orders, closed their borders and grounded nearly all international air travel on account of the COVID-19 virus. Such state action raises interesting questions at the intersection of health care and mobility. The severity of recent world events and their specific relationship to international airline travel has generated substantial (albeit inconclusive) scientific literature about passenger-to-passenger and crew-to-passenger viral transmission in commercial aviation. However, analysis of the corresponding legal risks for air carriers, if any, associated with the transmission of infectious disease aboard aircraft are surprisingly understudied.

This Article examines whether air carriers are or should be liable under international law to passengers who contract infectious diseases aboard their aircraft. For example, in addition to the obvious scenario of a passenger contracting an illness from the air cabin environment, several other claims related to the transmission of communicable diseases like COVID-19 are plausible in this regard. Passengers could conceivably sue an air carrier for failing to take certain precautions, such as warning passengers of the risk of contracting a disease. Alternatively, an air carrier’s alleged failure to pre-screen or deny boarding to passengers who exhibit symptoms of ill health may give rise to a lawsuit. Not having or employing contract tracing protocols to notify passengers of potential exposure might also support lawsuits against air carriers. Operational failures of high-efficiency particulate absorbing (HEPA) filters, for instance, also theoretically may expose air carriers to liability, as may the failure of an air carrier to comply with relevant international health regulations and guidance documents. Finally, passenger–plaintiffs might succeed in convincing courts to award money damages where the actions—or inactions—of an air carrier fail to safeguard the hygiene of aircraft cabins effectively.

The language, objectives, and drafting history of the Warsaw Convention of 1929 and Montreal Convention of 1999 (Conventions) appear to broadly support a finding of liability against an air carrier for the transmission of infectious disease in certain circumstances. Still, the adjudication of claims under the Conventions likely will produce highly variable textual interpretations unmoored to any controlling legal precedent—in contravention of the international aviation community’s goal of uniformity. As such, this Article posits that even if the language, policy, and existing case law related to the Conventions arguably support a finding of liability, administrative and policy reasons mitigate in favor of exonerating air carriers from claims seeking damages arising from the transference of communicable diseases aboard aircraft in the international carriage.

In all, this Article’s relevance is greatest for aviation practitioners and courts adjudicating claims under the Conventions in the context of COVID-19 or future global health care crises involving international aviation. That said, this Article may also hold interest for a broader audience seeking to understand legal and policy problems confronting global firms under private international law in post- and (perhaps) future-pandemic periods.

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