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

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 symptoms are present.

Potential Passenger Claims

As we have witnessed over the past few decades, there are passengers who disregard their illness and thus place the traveling public at risk for contracting communicable diseases. Airlines often are faced with the difficult task of balancing the safety of their crew and passengers against the interests and rights of a passenger traveling with a communicable disease.

Airline's Duty of Care: Negligence

As a common carrier, an airline generally owes its passengers a heightened duty of care.¹³ A passenger who claims that he or she has been injured by contracting a contagious disease during a flight, including emotional distress from alleged exposure, generally would have to establish a breach of the duty and that such breach proximately caused the injury. By way of example, passengers may try to assert a negligence claim based on several scenarios, such as where an airline 1) inadvertently permits a sick passenger to board; 2) fails to quarantine or isolate a passenger with symptoms, or otherwise respond appropriately; 3) has a crew member on board who becomes ill during the flight; 4) fails to properly ventilate and equip the aircraft to prevent the spread of the disease; 5) fails to notify the appropriate medical authorities of a symptomatic passenger and await assistance at the flight's destination; 6) fails to follow applicable guidance and regulations; and 7) fails to notify all passengers on the flight after becoming aware of a passenger's communicable illness.¹⁴

Whether the airline would ultimately be held responsible or penalized by authorities under any of these scenarios will likely turn on whether the airline should have known or suspected that a passenger or crew member presented a health risk (e.g., during the pre-boarding process, before takeoff or at crew check-in) and the reasonableness of the airline's response once it became aware of the passenger's illness (e.g., adequate isolation, cleaning of the aircraft, and notification to authorities and other passengers). Many defenses are available to the airlines. Significantly, with regard to a highly contagious disease like COVID-19, causation will be difficult for plaintiffs to prove because individuals may be asymptomatic for two to 14 days and could just as easily been exposed to the virus at locations other than the aircraft, such as at the airport, a restaurant, their hotel or sometime after deplaning.

Claims relating to an airline's duty to properly warn about contracting COVID-19 during a flight also would likely be preempted as federal regulations control the airlines' obligations with regard to pre-flight warnings and related safety standards.¹⁵ Obviously, however, when the airline has knowledge of a contagious or ill passenger, it should take immediate measures to minimize the health risk to others.

International Carriage: Montreal Convention

Most international flights today are governed by the Montreal Convention. Under Article 17 of the Convention,¹⁶ the airline is presumptively liable for physical injury or death of a passenger caused by an "accident" on the aircraft or during the course of embarking or disembarking. Article 17 provides the exclusive cause of action to a passenger for bodily injury or death and preempts any state law claims against the airline.¹⁷

While an Article 17 accident arises when there is an "unexpected or unusual event or happening that is external to the passenger,"¹⁸ an accident generally is not found when an injury results from a passenger's preexisting condition or in reaction to the normal operation of a flight.¹⁹ An airline should not be liable to a passenger boarding the aircraft with a preexisting illness unless there was some unexpected or unusual event by the airline that caused them physical injury.²⁰ Where an otherwise healthy passenger contracts a contagious disease during a flight, however, a court could find that an Article 17 accident has occurred. The burden remains on the passenger to prove that he or she contracted the illness while on the flight. Much like food poisoning cases, causation may be difficult to prove because of the contagious nature of COVID-19 and the fact a passenger could have contracted the illness at any point before boarding. Given the travel restrictions, mandatory quarantine rules in some places, and otherwise widespread nature of this pandemic, there may also be a defense that contracting the virus is not "unusual or unexpected" so as to constitute an "accident" under Article 17.²¹

If a passenger can demonstrate an "accident" occurred, an airline is presumptively liable for passenger's provable damages up to a maximum of 128,821 Special Drawing Rights (SDRs) (approximately US$178,000).²² An airline is not responsible for any damages beyond this amount if it proves that it was not negligent or that the incident was caused solely by the negligence of others, such as the passenger who knowingly traveled on the flight without notifying the airline or health authorities. In addition, the airline may disclaim liability to the contagious passenger by arguing that the injury was caused or contributed to by the negligence or other wrongful act of that passenger. 

In situations where a passenger claims solely emotional distress damages (such as fear of contracting the disease) but has sustained no physical injury, the passenger may not be entitled to any recovery under the Convention.²³

Denied Boarding

An airline's contract of carriage contains terms permitting an airline to deny boarding to passengers, including on health grounds if a passenger has a communicable disease or infection and may pose a threat to the health or safety of others.

However, under federal law, an airline may not discriminate against a passenger with a communicable disease or infection in the provision of air transportation.²⁴ A carrier may only deny boarding, require a medical certificate, or impose conditions on a passenger (such as wearing a mask) in cases where a passenger with a communicable disease poses a "direct threat" to the safety and health of others.²⁵ In making this determination, the airline makes an "individualized assessment," by relying on current medical knowledge, the likelihood of potential harm to others, and whether reasonable procedures or modifications could mitigate the risk.²⁶

The airline, however, must transport a passenger with a communicable disease or infection if he or she presents a medical certificate describing conditions or precautions that would prevent transmission and the airline can feasibly carry out these measures.²⁷ It seems unlikely that such a certificate would be given to a passenger with a highly contagious disease like COVID-19.

If a passenger views their denied boarding on health grounds as discriminatory, there is no private right of action to sue an airline. Instead, any complaint must be made with the Secretary of Transportation.²⁸ If such a passenger does bring a complaint, the airline may argue that their claims are preempted by federal law, including the Federal Aviation Act and the Airline Deregulation Act of 1978 (ADA).²⁹ With respect to the Federal Aviation Act, Congress intended that federal law exclusively control the field of aviation safety and that claims relating to safety be preempted, including those specific to an airline's authority to deny boarding.³⁰ And under the ADA, state law claims based on "boarding procedures" and "safety procedures" fall within the scope of "services" as defined by the ADA and are therefore preempted.³¹

Delays and Canceled Flights

For passenger delays governed by the Montreal Convention, the airlines generally have two defenses: 1) the passenger is comparatively at fault for the delay, and 2) the airline "took all reasonable measures that could reasonably be required to avoid the damage." The latter means that the carrier has taken measures reasonably available to defendant and reasonably calculated to prevent the loss. The airline is not required to take every possible precaution. Much will depend on the evidence the airline submits to support its defense. More likely than not, more claims will be based on canceled flights and nonperformance, which generally fall outside the treaty's scope (unless the airline places the passenger on the next available flight, and then delay may exist). Where nonperformance is found, such claims would be governed by the applicable contract of carriage.

As to damages for delays, U.S. courts generally limit passengers to recover the economic losses they sustained as a result of the delay, including out-of-pocket expenses incurred as a result of the delay (e.g., hotel, taxis, phone calls and food). Passengers should be required to present receipts or other evidence to support their claims. U.S. courts consistently hold, however, that damages for emotional distress/mental anguish are not recoverable and most decide that the passenger is not entitled to inconvenience or consequential damages.

Most airlines' contracts of carriage contain a force majeure clause excusing cancellation and making the carrier liable only for a refund of the unused ticket or portion thereof. Force majeure events usually include government regulations or orders. Prohibitions on travel would qualify. Due to COVID-19, most airlines have changed or waived cancellation fees when passengers cancel their flights for travel in March and April of 2020.

On March 18, 2020, the European Commission issued guidelines on the impact of COVID-19 on EU261/2004 claims.³² The guidelines clarify that cancellation and denied boarding based on COVID-19 will be considered an "extraordinary circumstances." The commission noted that cancellations due to concern for crew health and substantially decreased capacity, as well as flight restrictions and quarantine rules, would fall under this exception. However, airlines remain liable for passenger care and assistance, which includes meals and accommodation.

In the U.S., passengers cannot bring a direct claim under EU261/2004 against the airline because judicial enforcement of such claims is limited exclusively to the courts in the European Union.³³ Additionally, a breach of contract claim based on EU 261/2004 may only be pursued in the U.S. courts where the airline expressly incorporates the regulation in its contract of carriage.³⁴

Privacy Concerns

Many airlines include privacy notices as part of their conditions of carriage, which protect certain passenger information from disclosure. Certain exceptions exist for reporting to government authorities, including any mandatory reporting obligation imposed by federal regulations. For example, federal law requires an airline to collect certain information from passengers, including their name and telephone number (see 14 C.F.R. § 243.7(a)) and to "ke[ep] confidential [this information] and release[] only to the U.S. Department of State, the National Transportation Safety Board (upon NTSB's request), and the Department of Transportation pursuant to oversight of this part".³⁵ An airline is prohibited from using passenger information for any other reason other than reporting to federal agencies.³⁶

Best Practices

While airlines are already required to provide training on potential outbreak situations, additional precautions and recommended practices to consider include:

• be especially aware of individuals, both at the gate and on the aircraft, who appear to be symptomatic for COVID-19, and conduct an appropriate medical inquiry
• make sure the air ventilation in the cabin is compliant with aviation standards and functioning properly
• encourage the flight crew to make regular safety announcements, reminding passengers who experience flu-like symptoms to seek immediate medical attention
• facilitate frequent pilot communication with crew members, air traffic control, and any other necessary personnel or authorities in the event of an outbreak
• upon discovery of an infected passenger, provide notice to appropriate authorities, arrange for disinfecting procedures of the aircraft, and assistance to that passenger and others who may have been exposed
• ensure that a plan is in place to contact passengers who may have been exposed to COVID-19 during a flight

Conclusion

With the current coronavirus outbreak, airlines' emergency preparedness is being tested every day. Airlines must continue to stay abreast of and comply with the latest international and federal regulations and airport protocols. When an airline becomes aware of an infected passenger or crew member on a flight, airlines must report the situation, notify other passengers and crew members, and take measures to mitigate the potential spread of the disease. Airlines also should make every effort to document the measures they have taken to prevent contagion and be prepared to demonstrate that they acted reasonably under the circumstances.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.

^{Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.}

Notes

¹ See ICAO Electronic Bulletin, Ongoing Developments Regarding the Novel Coronavirus (2019-nCoV) Outbreak (Jan. 30, 2020).

² See "Strengthening health security by implementing the International Health Regulations," IATA, IACO and the CDC all collaborated with WHO in developing the regulations and guidelines.

³ On Jan. 30, 2020, the Director General of WHO declared the outbreak of COVID-19 a Public Health Emergency of International Concern (PHEIC). On March 11, 2020, WHO declared the outbreak a pandemic, without recommending any travel or trade restrictions.

⁴ These organizations are members of the Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation (CAPSCA) program under ICAO. Key information compiled by WHO, ICAO, the CDC, IATA and API are published on the CAPSCA website.

⁵ SARPs are technical specifications adopted by ICAO pursuant to Article 37 of the Chicago Convention, which requires States to collaborate to achieve "the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation."

⁶ For example, Annex 6 addresses universal precaution kits, Annex 9 relates to compliance with the IHRs, Annex 11 covers contingency plans in the event of disruption, Annex 14 covers airport emergency plans, and Annex 15 relates to requirements for flight crew advisories.

⁷ Convention on International Civil Aviation, 61 Stat. 1180. 15 U.N.T.S. 295 (Dec. 7, 1944), Art. 14.

⁸ See, e.g., Standard 8.12 (obliges States to comply with the pertinent provisions of the IHRs); Standard 8.15 (requiring pilot-in-command to report a case of suspected communicable disease on board an aircraft and follow the operator's protocols, in addition to health-related legal requirements of the countries of departure and/or destination); Recommended Practice 8.15 (recommending that a Public Health Passenger Locator Card should be used to trace a potentially exposed traveler).

⁹ See 82 F.R. 6890 (effective Feb. 21, 2017); 42 C.F.R. § 70.18 (penalties).

¹⁰ See 42 C.F.R. §§ 70.11 and 71.21. Specifically, 42 C.F.R. § 70.11(a) requires that the pilot in command report "as soon as practicable to CDC the occurrence onboard of any deaths or the presence of ill persons among passengers or crew and take such measures as CDC may direct to prevent the potential spread of the communicable disease …".

¹¹ See 42 C.F.R. § 71.21.

¹² See Preventing Spread of Disease: Cabin Crew.

¹³ The duty of care owed a passenger differs state-by-state and may be governed by federal law, i.e., 14 C.F.R. § 91.13(a), which provides that: "No person may operate an aircraft in a careless of reckless manner so as to endanger the life or property of another."

¹⁴ See Ruwantissa Abeyratne, International Responsibility in Preventing the Spread of Communicable Diseases through Air Carriage– The Sars Crisis, 30 Transp. L.J. 53, 61 (2002) (illustrating various liability situations).

¹⁵ Montalvo v. Spirit Airlines, Inc., 508 F.3d 464, 470-74 (9th Cir. 2007) (holding FAA and federal aviation regulations establish safety standards for interstate and international air transportation and impliedly preempted state law claims for failure to warn passengers about the risk of developing DVT).

¹⁶ In those cases where the Warsaw Convention is the applicable treaty, the analysis of an Article 17 accident is generally the same; however, the airlines' defenses may vary depending on whether the Warsaw Convention, as unamended or supplemented, applies to the particular transportation. 

¹⁷ See El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999); Ehrlich v. American Airlines, 360 F.3d 366 (2d Cir. 2004).  

¹⁸ Air France v. Saks, 470 U.S. 392, 405 (1985). 

¹⁹ Id. at 406 ("[w]hen the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident").

²⁰ An accident may arise where the airline crew fails "to take certain necessary vital steps" in response to a situation such that this inaction "could quite naturally and, in routine usage of the language, be an event or happening." Olympic Airways v. Husain, 540 U.S. 644, 656 n.10 (2004).

²¹ See, e.g., Blansett v. Continental Airlines, Inc., 379 F.3d 177 (5th Cir. 2004) (failure to warn passengers about risk that pressurized condition of aircraft's cabin might increase likelihood of deep vein thrombosis (DVT) was not "unusual or unexpected event," and did not qualify as "accident" under Article 17 of the Warsaw Convention).

²²  The monetary limits under the Montreal Convention were increased on December 28, 2019

²³ See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991); Ehrlich v. American Airlines, 360 F.3d 366 (2d Cir. 2004); In re Air Crash at Little Rock, Arkansas on June 1, 1999 (Lloyd), 291 F.3d 508 (8th Cir. 2002).

²⁴ 49 U.S.C. § 41705 (2003).

²⁵ 14 C.F.R. § 382.51 (a), (b). A "direct threat" is defined as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services." 14 C.F.R. § 382.51(b)(2).

²⁶ 14 C.F.R. § 382.51(b)(3).

²⁷ 14 C.F.R. § 382.51(b)(4).

²⁸ See, e.g., Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004); Love v. Delta Airlines, 310 F.3d 1347 (11th Cir. 2002).

²⁹ See 49 U.S.C. § 41713(b)(1) ("[A] State . . . may not enact or enforce a law . . . related to a price, route, or service of an air carrier . . . ."); see also Northwest, Inc. v. Ginsberg, 572 U.S. 273, 134 S. Ct. 1422 (2014); see also Air Transp. Ass'n of Am. Inc. ("ATA") v. Cuomo, 520 F.3d 218, 220 (2d Cir. 2008).

³⁰ Section 44902 authorizes an air carrier to refuse transportation to a passenger who the "carrier decides is, or might be, inimical to safety." 49 U.S.C. § 44902(b).

³¹ See, e.g., Lozada v. Delta Airlines, Inc., No. 13-cv-7388, 2014 WL 2738529, at *5 (S.D.N.Y. June 17, 2014) (finding claims related to removal of passenger preempted by the ADA); Weiss v. El Al Israel Airlines, Ltd., 433 F. Supp. 2d 361, 370 (S.D.N.Y. 2006) (holding that tort claims based on an airline's denial of transportation were "clearly preempted" by the ADA); Huggar v. Northwest Airlines, Inc., No. 98‑cv-594, 1999 WL 59841, at *9 (N.D. Ill. Jan. 11, 1999) (same).

³² See Commission Notice, Interpretative Guidelines on EU passenger rights regulations in the context of the developing situation with Covid-19.

³³ See Volodarskiy v. Delta Airlines, Inc, 784 F.3d 349, 354 (7th Cir. 2015) (holding that "EU 261 is not judicially enforceable outside the courts of the EU Member States").

³⁴ See, e.g., Polinovsky v. British Airways, No. 11-CV-779, 2012 WL 1506052 (N.D. Ill. Mar. 30, 2012) (finding breach of contract claim preempted because the carrier's Conditions of Carriage did not expressly incorporate EU 261).

³⁵ 14 C.F.R. § 243.9(c)

³⁶ See, e.g., 14 C.F.R. § 243.9(d).