So you’ve been on a flight that a COVID-19 infected person has travelled on too?
The tragedy of this situation may never eventuate but of course you might have concerns. Given the public health emergency that is the COVID-19 pandemic, and the recent (applicable today, 25 March 2020) ban by the Australian Government on non essential international travel, have the precautions that have been observed on airliners to date for travellers who have been exposed to the virus been sufficient? Do they leave travellers and crews with unnecessary risks? If so, who is liable for the consequences, including losses suffered by victims of exposure, or more precisely, the potential for insufficient post-exposure tracing processes conducted by public health authorities in cooperation with airlines to have caused damage?
During such an emergency the thought of legal action is not central in the public psyche, nor should it be. We note that our comments below are made to encourage critical thinking about the particular situations you or loved ones may have been faced in respect of air travel, and how best you can self-help to ensure your own health as well as those around you – and in doing so perhaps further accelerate the end of this terribly restrictive time for all within the Australian community by “flattening the curve” or “bending the curve” as described here.
Our article takes a look at some of these questions from the perspective of some of the kinds of assumptions and directives that have informed who is contacted on board aircraft where a known case of COVID-19 has been identified and come forward.
Background
The research on viral diseases shows that aircraft are a spreading ground from human to human. Human to human transmission of coronaviruses is primarily thought to occur among close contact via respiratory droplets generated by sneezing and coughing. The interaction of the coronavirus spike protein with its complement host cell receptor is central in determining the tissue tropism, infectivity, and species range of the virus.
Viral transmission on aircraft – the basis for limited contact tracing
We have not found any cases in which an airline was directly responsible or sued for a viral transmission, however the prospect of infection from an onboard source is clearly of concern to health authorities who, pursuant to public health emergency legislation have put in place procedures with state health authorities in Australia, and airlines, to obtain contact details for passengers, and indeed directly contact, those two rows ahead of, and two rows behind known passengers who have subsequently or otherwise been tested as positive for COVID-19.
The basis for the “2-row rule” is described in an article by Vicki Stover Hertzberg, PhD, and Howard Weiss, PhD, “On the 2-Row Rule for Infectious Disease Transmission on Aircraft” linked below. The study summarised the basis for the 2-row rules, and noted that there is a “6% risk to passengers seated within the 2-rows of infected individual(s) and there is 2% risk to passengers seated beyond 2-rows from the infectious individual”. The study described that the data for the rule was originally obtained from the inflight transmission of tuberculosis, but is broadly accepted by health authorities to have wide applicability.
The authors concluded:
Contact tracing limited to passengers within 2 rows of the infectious individual may lead to failure to determine other cases, which may have important, potentially dire consequences for spread of infectious diseases.
Has anyone sued airlines for their exposure to or contraction of such viruses?
In the event an airline has unreasonably permitted a known infected person to board, or did not pick up that a symptomatic person was onboard despite rules in place generally about the prevention of transmission of illness required to be complied with by airlines, then there may well be liability imposed on airlines under existing international instruments such as the Montreal Convention 1999. This multilateral air law instrument applies strict liability for damages for personal injury and death for onboard accidents.
We have not seen cases such as those, but note a comparable species of case to airline transmission where action has in fact been taken, and these are the recent cases filed by passengers of the Grand Princess cruise ship where infections were known to have occurred. See for example here.
The most recent cases filed, attached below for download, are Michael Austin et al. v. Princess Cruise Lines Ltd, and Debra Dalton et al. v. Princess Cruise Lines Ltd., filed on 13 and 17 March 2020 in the U.S. District Court for the Central District of California, where plaintiff passengers have claimed damages, including punitive damages, against the cruise line for negligence and gross negligence for alleged failures to warn of the risks to passengers prior to boarding, in circumstances where the operator had actual knowledge of passengers who had sailed on the relevant vessels the week before the instant cruise, and had departed with symptoms of the virus.
In the airline environment a crew’s failure to act has been seen to attract airline liability for subsequent injury and death and so airlines would of course be well aware of their potential to attract claims from infected passengers where the inaction or actions of crew were outside the bounds of currently prescribed protocols by the airline itself and the WHO.
But this article is not about suing airlines. Its about protecting yourself and using the information we have available to further arm yourself and the community against COVID-19.
Is the 2-row system (2 rows ahead, and 2 rows behind) based on scientific findings?
Although this system was developed and promulgated by health authorities based on the known state of the medical science, the fact that there have been infections onboard aircraft from similar illnesses, and the desire of many to ensure extra precautions for themselves based on data, have led to our consideration of the following, presented for your interest.
In March 2003, a 72-year-old passenger with SARS infected 18 passengers and 2 flight attendants on a 3-hour flight from Hong Kong to Beijing. The infectious passenger died 3 days later. Only 9 (50%) of the infected passengers were seated within 2 rows of the relevant case.
Furthermore, more transmissions occurred to passengers sitting across the centre aisle than on the infectious passenger’s side of the plane. See article for download below, or here.
In April 2009, on a 9.5-hour flight from Mexico to Birmingham, UK, a passenger contagious with novel H1N1 virus infected 6 passengers. Only 2 of the infected passengers were seated within 2 rows of the infectious passenger.
Stower et al noted:
There are 39 cases of infection transmission within 2 rows of an index case. There were 37 cases of infection transmission to passengers seated outside of this risk zone on these same flights. Thus, although there is an elevated relative risk for passengers inside the 2 row zone, there is still a non-negligible chance of cross infection beyond this zone.
The report speculated that infection at a distance from the index case is due to factors such as cabin airflow and movement of passengers and flight attendants. Something which another study we examined below, looks at as well.
Movement of passengers? What about common use areas like lavatories?
In our view, there is data which indirectly contributes to a hypothesis that more passengers than those simply in the two rows either side of an infected passenger ought to be made aware of and self isolated given the possibility of transmission. Stover et al’s warning of the potential dire consequences may not be sufficient to move health authorities because of the statistical low probability of infection but may well be of interest to others in the community.
The relevant factor of the conditions onboard civil aircraft which backs up this line of thinking is the movement of passengers throughout a flight.
Whenever passengers leave their seat on a flight, they spend the majority of that time waiting or lining up in order to use the toilets. In a 2018 article by Stover et al (available for download below or here) the most common behaviours for passengers are waiting for, using, or exiting a lavatory and checking the overhead compartments. The wait for the front lavatory was nearly twice as long as for the back lavatories. Over the course of an average flight (238 min of observation) (range: 196–290), each crew member was in contact with passengers for 67 min and spent 155 min on average in the galley.
Also interesting is the seating position of passengers on a flight – i.e. window, middle, or aisle. On average, 80% of people who sit in an aisle seat get out of their seats at least one time during their flight – which further increases chances of contact and contraction of viral diseases.
Of the 1,296 passengers (84%) having close contact with an individual seated beyond a 1-m radius from them (due to movement), the median number of contacts was 44 and the median total duration of contact was 47 person-minutes. The median duration for each of these individual contacts was 0.4 min. Crew were in contact an average of 206 person-minutes with other crew and 1,149 person-minutes with passengers.
The very fact that passengers move around cabins and congregate and centre around lavatories is cause, in our view, for all passengers to be made aware of the fact of a COVID-19 case onboard, even if authorities in their wisdom choose to note personally contact all passengers and require them to self-isolate for 14 days.
In fact public tracing alerts are made available online though are not publicised widely, and note “close contact rows” for aircraft where a known case was identified.
In our view these should be noted by all recent travellers for the purpose of determining their own risk of infection.
We encourage all frequent travellers and crew members to familiarise themselves with such websites as Queensland Health’s “Current Status and Contact Tracing Alerts” page which lists flights where infected persons were known to have travelled.
We suggest readers familiarise themselves with the known list of flights as at 25 March 2020 below, because the list will be removed 14 days after the flight as they are considered “no longer applicable” but may well be for personal health reasons.
| Flight # | Airline | Origin | Destination | Departure Date | Arrival Date | Close Contact Rows |
| QF16 | Qantas | Los Angeles | Brisbane | 08-March-2020 | 10-March-2020 | Further information pending |
| QF16 | Qantas | Los Angeles | Brisbane | 08-March-2020 | 10-March-2020 | 5, 6, 7, 8, 9 |
| EY484 | Etihad | Abu Dhabi | Brisbane | 09-March-2020 | 10-March-2020 | 29, 30, 31, 32, 33 |
| EY462 | Etihad | Abu Dhabi | Melbourne | 09-March-2020 | 10-March-2020 | Further information pending |
| EY462 | Etihad | Abu Dhabi | Melbourne | 09-March-2020 | 10-March-2020 | Further information pending |
| EY484 | Etihad | Abu Dhabi | Brisbane | 11-March-2020 | 12-March-2020 | Further information pending |
| EY484 | Etihad | Abu Dhabi | Brisbane | 11-March-2020 | 12-March-2020 | Further information pending |
| QF 52 | Singapore Airlines | Singapore | Brisbane | 11-March-2020 | 12-March-2020 | Further information pending |
| QR908 | Qatar Airways | Doha | Sydney | 11-March-2020 | 12-March-2020 | 10, 11, 12, 13 |
| EK434 | Emirates | Dubai | Brisbane | 11-March-2020 | 13-March-2020 | 63, 64, 65, 66, 67 |
| JQ12 | Jetstar | Tokyo | Brisbane | 12-March-2020 | 13-March-2020 | 46, 47, 48, 49, 50 |
| QF74 | Qantas | SanFrancisco | Brisbane | 12-March-2020 | 14-March-2020 | Further information pending |
| QF52 | Qantas | Singapore | Brisbane | 12-March-2020 | 13-March-2020 | 4, 5, 6, 7, 8 |
| QF1786 | Qantas | Brisbane | Townsville | 12-March-2020 | 12-March-2020 | Further information pending |
| QF556 | Qantas | Sydney | Brisbane | 12-March-2020 | 12-March-2020 | 4, 5, 6, 7 |
| QF16 | Qantas | Los Angeles | Brisbane | 12-March-2020 | 14-March-2020 | 2, 3, 4, 9, 10, 11, 12, 13, 20, 21, 22, 23, 24, |
| QF650 | Qantas | Perth | Brisbane | 12-March-2020 | 12-March-2020 | Further information pending |
| QF52 | Qantas | Singapore | Brisbane | 12-March-2020 | 13-March-2020 | Further information pending |
| QF16 | Qantas | Los Angeles | Brisbane | 12-March-2020 | 14-March-2020 | 39, 40, 41, 42, 43 |
| EK430/QF8430 | Emirates | Dubai | Brisbane | 13-March-2020 | 13-March-2020 | 29, 30, 31, 32, 33 |
| QF619 | Qantas | Brisbane | Melbourne | 13-March-2020 | 13-March-2020 | Further information pending |
| QF632 | Qantas | Melbourne | Brisbane | 13-March-2020 | 13-March-2020 | Further information pending |
| SQ245 | Singapore Airlines | Singapore | Brisbane | 13-March-2020 | 14-March-2020 | 49, 50, 51, 52, 53 |
| SQ245 | Singapore Airlines | Singapore | Brisbane | 13-March-2020 | 14-March-2020 | 49, 50, 51, 52, 53 |
| SQ235 | Singapore Airlines | Singapore | Brisbane | 14-March-2020 | 15-March-2020 | 66,67,68, 69, 70 |
| DL41 | Delta | Los Angeles | Sydney | 14-March-2020 | 16-March-2020 | Further information pending |
| DL41 | Delta | Los Angeles | Sydney | 14-March-2020 | 16-March-2020 | Further information pending |
| EY460 | Etihad | Abu Dhabi | Melbourne | 14-March-2020 | 15-March-2020 | 20, 21, 22, 23, 24 |
| DL41 | Delta | Los Angeles | Sydney | 14-March-2020 | 16-March-2020 | Further information pending |
| QF52 | Qantas | Singapore | Brisbane | 14-March-2020 | 15-March-2020 | 47, 48, 49, 50, 51 |
| PR221 | Philippine Airlines | Manila | Brisbane | 14-March-2020 | 15-March-2020 | Further information pending |
| EK434 | Emirates | Madrid | Brisbane | 14-March-2020 | 16-March-2020 | Further information pending |
| MH135 | Malaysia Airlines | Kuala Lumpur | Brisbane | 14-March-2020 | 15-March-2020 | Further information pending |
| EY0032 | Etihad | Paris | Abu Dhabi | 14-March-2020 | 15-March-2020 | Further information pending |
| DL2272 | Delta Airlines | Salt Lake City | Los Angeles | 14-March-2020 | 14-March-2020 | 19, 20, 21, 22, 23 |
| DL41 | Delta Airlines | Los Angeles | Sydney | 14-March-2020 | 16-March-2020 | 53, 54, 55, 56, 57 |
| QF866 | Qantas | Sydney | Hamilton Island | 15-March-2020 | 15-March-2020 | 22, 23, 24, 25, 26 |
| QF60 | Qantas | San Francisco | Brisbane | 15-March-2020 | 17-March-2020 | Further information pending |
| B10009 | Royal Brunei Airlines | Brunei | Brisbane | 15-March-2020 | 16-March-2020 | 33, 34, 35, 36, 37 |
| VA357 | Virgin | Melbourne | Brisbane | 15-March-2020 | 15-March-2020 | 5, 6, 7, 8, 9 |
| BA15 | British Airways London | Singapore | Sydney | 15-March-2020 | 16-March-2020 | Further information pending |
| EY450 | Etihad | Abu Dhabi | Sydney | 15-March-2020 | 16-March-2020 | Further information pending |
| EK434 | Emirates | Dubai | Brisbane | 15-March-2020 | 17-March-2020 | 48, 49, 50, 51 |
| EY484 | Etihad | Abu Dhabi | Brisbane | 15-March-2020 | 15-March-2020 | 34, 35, 36, 37 |
| VA931 | Virgin | Sydney | Brisbane | 16-March-2020 | 16-March-2020 | 24, 25, 26, 27, 28, 29 |
| EK434 | Emirates | Dubai | Brisbane | 16-March-2020 | 17-March-2020 | 44, 45, 46, 47, 48 |
| QF520 | Qantas | Sydney | Brisbane | 16-March-2020 | 16-March-2020 | Further information pending |
| QF520 | Qantas | Sydney | Brisbane | 16-March-2020 | 16-March-2020 | Further information pending |
| VA939 | Virgin | Sydney | Brisbane | 16-March-2020 | 16-March-2020 | Further information pending |
| EK434 | Emirates | Dubai | Brisbane | 16-March-2020 | 18-March-2020 | Further information pending |
| QF98 | Qantas | Hong Kong | Brisbane | 16-March-2020 | 17-March-2020 | Further information pending |
| SQ319 | Singapore Airlines | London | Singapore | 16-March-2020 | 17-March-2020 | 51, 52, 53, 54, 55 |
| VA931 | Virgin Airlines | Sydney | Brisbane | 16-March-2020 | 16-March-2020 | 19, 20, 21, 22, 23 |
| QF52 | Qantas | Singapore | Brisbane | 17-March-2020 | 17-March-2020 | Further information pending |
| QF16 | Qantas | Los Angeles | Brisbane | 18-March-2020 | 19-March-2020 | 46, 47, 48 |
WHO, COVID-19 and aviation
The WHO applies a general definition of a “contact” of an infected person to aircraft, meaning that typically anyone within 2m (hence the 2 row rule) should be contacted subsequent to identification of a case onboard. Our research above indicates that this conservative approach may be insufficient for the purposes of risk averse airlines and travellers.
We particularly encourage crew members who continue to operate (as few as those are at this unprecedented time) to familiarise themselves with their obligations, as summarised in the WHO 18 March 2020 “Operational considerations for managing COVID-19 cases or outbreak in aviation Interim guidance” available for download below.
In particular, crews must observe the:
Obligations for aircraft operators, airlines, and aircraft with suspected case(s) on board
Reporting
In accordance with the International Health Regulations (2005), pilots shall make known to airport control as early as possible before arrival at the airport of destination any cases of illness indicative of a disease of an infectious nature or evidence of a public health risk on board as soon as such illnesses or public health risks are made known to the pilot in command.
Crews should follow the procedures in accordance with ICAO Annex 9 and Procedures for Air Navigation Services – Air Traffic Management (PANS-ATM, Doc 4444) when reporting a suspected case on board.
Contact us at [email protected] if you need assistance decoding these requirements.
Conclusions
In light of the known information about the acceleration of a pandemic via air travel we strongly encourage all aviators and travellers to make themselves aware of the WHO operational considerations linked to this article, but to read it with a critical eye to ensuring any sensible further precautions for themselves and their families are followed particularly in respect of hygiene, self-isolation, and quarantine, to ensure we all do our part in the aviation community to help curb the spread of COVID-19.
If you have a question about your rights, please contact us at [email protected].
This article was prepared by Joseph Wheeler with significant research assistance by Garnik Martirosov, Law Clerk.
DOWNLOADS
Austin et al v Princess Cruise Lines Ltd Complaint
Dalton v Princess Cruise Lines Ltd Complaint
Behaviors, movements, and transmission