Airlines are landing in trouble when passengers or crew members test positive for the dreaded Coronavirus on arrival.
From Hong Kong to Rome, Indian carriers and passengers have felt the heat when local authorities detected COVID-19 cases among those who deplaned, leaving legal eagles divided about who should be blamed or penalised, and who should foot the quarantine bill.
Authorities in Rome detained an Air India flight from Amritsar along with the crew and passengers as there were reports of COVID-19 cases on board. Similarly, Hong Kong banned Vistara for two weeks after passengers on a chartered flight from India in its aircraft tested positive on arrival.
Petrushka Dasgupta, Partner, IndusLaw, says the airport is obliged to ensure that all passengers have negative RT-PCR report at least 48 hours before the flight; so, ideally, the responsibility should be with the airport. “Airlines are only obliged to follow the SOP’s put forth by each airport in the respective state/country/port of exit or entry. It would be very difficult to ascertain where the passenger contracted the virus, so thereby making it difficult to assign liability” she argues.
Anubha Singh, Advocate, Innovatus Law, agrees, saying each passenger on the aircraft is well aware of his/her health and the risks involved in air travel during a pandemic. “If a passenger, being sick still choses to travel and decides to conceal his/her status to the airlines, the airlines should have all the rights to deboard the passenger and/or penalise him/her. The airlines have to insist of a COVID–19 negative report before boarding, and non-production of the same ought to make the passenger liable for penal consequences,” she argues.
Unfair on airlines
She says it will be unfair to make airlines liable for wrongdoings of the passenger. “The airline in its endeavour to reduce risk of transmission can further strengthen its policies on social distancing and seat staggering,” she says.
Dasgupta said that as the precautions to be taken while travelling falls squarely within the “domain of personal liability” and given that COVID-19 has nothing to do with the operation or control of the aircraft, it is difficult to affix the liability of death resulting from COVID-19 on an airline.
She said that since each country is dealing with the pandemic in its own specific way, and there is no international convention on standardisation of specific operating procedure, usually the passenger is required to bear the cost of quarantine. There is no role of either the airport or an airline in such eventuality unless it can be shown that the infection was a result of traveling and accordingly, the cost of quarantine can be allocated, she said. Countries like the United Kingdom have put the obligation on passengers to take on the cost of such quarantine.
Singh said the Vistara flight case was a peculiar one, wherein passengers tested positive during their quarantine period, and it was not clear if passengers were infected prior to boarding or during the flight of nearly five hours. Even though, passengers had produced COVID-19-negative certificates, some of them may have had virulent strains of the virus, and there were other variables that could have an impact, including whether people wore masks consistently on board, she added.
She said it was evident that both the airlines and passenger are fully aware that COVID-19 is an especially infectious and dangerous disease. “Yet they continue to fly potentially infected persons around the world. In my opinion, both the airlines and the passenger should be equally liable,” Singh said.
Dinesh Pednekar Partner, ELP along with Rajashree Ram and Aafreen Noor, point to another issue, saying that to impute liability on the airport/airline, the passenger will have to necessarily demonstrate that the protocols prescribed by the relevant authorities have not been followed by them.
“Further, given the fact the COVID virus is highly contagious and there not being precise knowledge of the manner of transmission, it could very well be that the passenger may have contracted the virus enroute the airport, in the coffee shop, etc. In India, there have also been instances wherein diagnostic centers have given incorrect test report” they told Moneycontrol in an emailed response to queries.
Compensation for passengers
They said that to claim any compensation under the provisions of Montreal Convention read with the Carriage by Air Act, 1972 as applicable to India, a passenger is required to show that death or bodily injury suffered was on account of an “accident” which took place on board the flight or in the course of any of the operations of embarking or disembarking.
The term “accident” has been defined to mean an unusual or unexpected event that is external to the person.
“In the present case, on account of the various circulars, advertisements, promotional campaigns and more pertinently, the declaration of COVID-19 as a ‘pandemic’ by the WHO, COVID-19 is no longer an unexpected or unusual occurrence and passengers are fully aware of the risks involved in air travel. Therefore, it is arguable that the contraction of COVID virus cannot be termed as ‘accident’ as defined in the Montreal convention read with read with the Carriage by Air Act, 1972,” they say.
Further, due to the highly contagious nature of this virus, causation may be difficult to prove. Since some patients also remain asymptomatic for about 5-7 days, it could also be argued that the contraction had occurred much prior to or after the air travel and through numerous means.
They point out that since citizens are being advised to avoid unnecessary travel in the wake of the pandemic, it could also be argued that a passenger, by choosing to travel under these circumstances, assumes the risk of contracting the virus.