8th annual mcgill conference in international aviation liability and insurance montreal, 17– 18...

8TH ANNUAL MCGILL CONFERENCE IN INTERNATIONAL AVIATION LIABILITY AND

INSURANCE

MONTREAL, 17– 18 APRIL 2015

CARRIER LIABILITY FOR CONTAGIOUS DISEASE AND ALLERGIC REACTIONS

Ludwig WeberICAO and McGILL UNIVERSITY, MONTREAL

Carrier Liability for food poisoning

Introduction

Food poisoning on board – during carriage by air

Food served on flight covered by contract of carriage

Food poisoning – “accident” in the sense of Article 17 Warsaw / Montreal Conventions ?

Accident = unexpected or unusual event that is external to the passenger (AF v. Saks, US Supr

Ct., 1985)


“External to the passenger” – food poisoning is caused by bacteria in food, ingested by passenger (eg. Salmonella, listeria etc.) Characteristic: Food poisoning usually affects a significant number of passengers on same flight

For international carriage: Food poisoning if proven, will constitute “Accident” under Art. 17 WC/MC

For domestic carriage: Food poisoning will also trigger liability for “defective product”


Notion of defective product under U.S. Law: where product is “unreasonably dangerous”

to the consumer (2nd Restatement of Tort Law)

Notion of defective product under EU law: where product “does not present the safety

that a person is entitled to expect” (Art. 6 EU Product Liability Directive of 1985)

Domestic carriage: Food poisoning will be subject to product liability (US and EU) – strict liability -

Liable parties: Air Carrier – as distributor and Catering Supplier – as producer – joint and several liability


Most cases of airline food poisoning were settled out of court (e.g. BA salmonella poisoning cases in 1990s)

Presently, a US case is pending: Cortes v. American Airlines and Sky Chefs (claim filed in 2011, US District Ct. Miami), alleging that plaintiffs’ husband respectively father died from food poisoning on board. Both AA and the caterer Sky Chefs were sued

The case if decision is rendered, will be one of the first court decisions in airline food poisoning cases.

Carrier Liability for Spread of Communicable Diseases

Art. 14 Chicago Convention: Public Health Authorities called upon to act – “Each State agrees to take effective measures to prevent the spread of communicable diseases, and will keep in close consultation with the agencies concerned with international regulation”.

Public authorities act through CAPSCA, a joint body of ICAO and WHO (“Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation”) – 106 States Parties – Meets annually and issues Guidelines and Conclusions to States, e.g. on exit health controls, travel restrictions to and from affected areas and related issues.


CAPSCA was set up during the SARS crisis in 2003

It has issued guidelines during the bird flue pandemia crisis in 2006

During the recent Ebola crisis in 2014-2015, it has issued guidelines on:

- restrictions on flights, suspension of flights,

traveller and ground staff screening at airports, exit screening vs. entry

screening


CAPSCA guidelines are addressed primarily to States, but also concern air carriers e.g. regarding restrictions on flights

To the extent air carriers keep within public health framework issued by WHO, ICAO, CAPSCA and national regulator, following rules and guidelines with due care, they will enjoy protection against liability – see e.g.

Blansett v. Continental, US Distr.Ct .5th Cir. 2004


Similar reasoning in Caman v. Continental, US Distr.Ct. 9th Cir., 2006

Whether protection is fully effective, remains to be tested

Also whether air carriers which do not comply with public health framework, e.g in a crisis situation,may be exposed to potential liability, e.g. negligence, remains to be tested.


Thank You

8th annual mcgill conference in international aviation liability and insurance montreal, 17– 18...

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