8TH ANNUAL MCGILL CONFERENCE IN INTERNATIONAL AVIATION LIABILITY AND INSURANCE MONTREAL, 17– 18 APRIL 2015 CARRIER LIABILITY FOR CONTAGIOUS DISEASE AND ALLERGIC REACTIONS Ludwig Weber ICAO and McGILL UNIVERSITY, MONTREAL

Carrier Liability for food poisoning Introduction Food poisoning on board – during carriage by air 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) Ct., 1985)

Carrier Liability for food poisoning  “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”

Carrier Liability for food poisoning  Notion of defective product under U.S. Law: where product is “unreasonably dangerous” to the consumer (2 nd Restatement of Tort Law) where product is “unreasonably dangerous” to the consumer (2 nd 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) 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

Carrier Liability for food poisoning  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.

Carrier Liability for Spread of Communicable Diseases  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 , it has issued guidelines on: - restrictions on flights, suspension of flights, traveller and ground staff screening at airports, exit screening vs. entry screening traveller and ground staff screening at airports, exit screening vs. entry screening

Carrier Liability for Spread of Communicable Diseases  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.5 th Cir Blansett v. Continental, US Distr.Ct.5 th Cir. 2004

Carrier Liability for Spread of Communicable Diseases  Similar reasoning in Caman v. Continental, US Distr.Ct. 9 th Cir., 2006 US Distr.Ct. 9 th Cir., 2006 Whether protection is fully effective, remains to be tested 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. 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.

Carrier Liability for Spread of Communicable Diseases Thank You