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Cleared for take-off: Thailand’s carriers resume domestic flights29 April 2020

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From 1 May 2020, Thailand’s airlines can resume domestic flights. The frequencies will be considerably lower than in May 2019 and during the first two months of 2020.

The Civil Aviation Authority of Thailand (“CAAT”) has approved the resumption of flights subject to the following key conditions:

  • The middle seat cannot be sold to ensure appropriate social distancing;
  • Passengers must wear face masks at all times and cannot consume any food or beverages during the flight;
  • Airlines cannot offer or sell food and beverages during the flight;
  • Cabin crew must wear appropriate protective gear during the flight; and
  • Flights of 90 or more minutes must also block the last row of seats for passengers who become ill or display flu-like symptoms.

"For Thai airlines, the resumption of services should bring much needed cashflow and signal the start of recovery and rebuilding plans."

For Thai airlines, the resumption of services should bring much needed cashflow and signal the start of recovery and rebuilding plans. The resumption of domestic flights raises a number of issues which should be considered and addressed before flights resume.

Up in the skies: liability for infection and transmission of COVID-19

As noted in our recent article about the coronavirus and airline liability “What has changed since SARS”, the liability of an airline for passenger to passenger transmission of the coronavirus disease (COVID-19) will depend on a number of factors and remains unclear.

This ambiguity creates a greater risk of passenger claims and litigation, particularly to test if passenger or crew/ground staff to passenger transmission constitutes an “accident” under the Montreal Convention (1999) (“MC99”). In the event of passenger to passenger or crew/ground staff to passenger transmission, airlines should be prepared to deal with claims by passengers both directly to the airline and through social media. The latter may have a greater impact and be more of a threat to an airline in the current environment. Airlines should be ready to respond to trial by social media and pressure through social and conventional media to settle claims of passenger to passenger or crew/ground to passenger transmission. This will require an understanding of the extent to which aviation liability insurance will cover such claims and the potential impact on the brand and reputation of the airline by refusing to settle claims. Given the current financial position of Thai carriers, they are likely to settle passengers’ claims to the extent that settlements are covered by their aviation liability insurance policies.

Airlines should also consider the exposure of cabin crew to the risk of passenger to crew and crew to crew transmission. Unlike an airline’s liability to passengers, the liability of an airline to its crew for death and injury is based on the relationship of employer and employee. This divergence can result in a clearer liability exposure for crew illness than for passenger illness arising from transmission of COVID-19. If an airline or its employee liability insurer accepts liability for crew illness arising from transmission, infected passengers are unlikely to accept that the liability is on different grounds and with different trigger points. This may only encourage and inflame passenger demands for compensation and an acceptance of liability. The significant difference in liability exposure and limits between MC99 and employer liability under Thai law should also be a key consideration in dealing with claims by crew and passengers but unlikely to be appreciated by passenger claimants and their lawyers.

"Airlines should consider the extent to which the resumption of flights in these circumstances may give their insurers grounds to decline liability for claims arising from infection during the flights."

The measures and conditions set out above may create a higher duty of care for carriers and may make it easier for passengers to establish liability under the MC99. This is on the basis that in resuming flights, carriers have satisfied themselves that these measures will prevent the transmission of COVID-19. Given the current understanding of how the virus is transmitted and the high level of asymptomatic carriers, it is unlikely that these measures will or could completely eliminate the risk of transmission. Airlines should also consider the extent to which the resumption of flights in these circumstances may give their insurers grounds to decline liability for claims arising from infection during the flights.

On the ground: liability for infection and transmission of COVID-19

The risk of transmission does not begin and end with the flight itself and airline liability can extend to boarding and disembarkation under MC99. Airlines should also consider the extent to which their procedures on the ground before and after the flight can create or increase the risk of transmission. The risk will increase exponentially as flight frequencies and passenger numbers increase. Responding to and reducing this risk may require some significant changes in procedures on the ground including:

  • Effective social distancing during check-in, which could require larger check-in areas and longer check-in times;
  • Automated check-in equipment will need to be cleaned significantly more frequently than before the outbreak of COVID19;
  • Social distancing may require larger boarding gate areas;
  • Boarding and disembarcation by aerobridge may require more time to avoid passengers queueing in the aerobridge;
  • Boarding and disembarcation at a remote stand by bus may also require longer time and more buses to ensure social distancing on the bus;
  • Airlines may need to board passengers by specific seat numbers to avoid crowded aisles and this will require more time and effective crowd control to ensure that passengers do not crowd the boarding area waiting for their seat or row to be called to board the aircraft;
  • Restrictions on hand luggage may need to be revised and strictly enforced to reduce the risk of crowding and passenger and crew physical contact on board;
  • During the flight, the crew will need to be vigilant to ensure that social distancing is continuously and completely maintained, particularly for parents travelling with infants and children;
  • The crew will also need to continuously monitor the wearing of face masks during the flight;
  • Disembarcation will also need to be by specific seat or row to maintain social distancing and to avoid crowding in aisles, aerobridges and stairs and again this will require effective crowd control; and
  • Social distancing at luggage carousels will also require some effective crowd control to avoid crowding.

Passengers are arguably not under the control of an airline during pre-boarding security checks and airlines.

Who is liable for transmission during security checks?

The way in which the security checks are carried out also creates a higher risk of transmission because of the need to queue to complete the security checks and the number of surfaces which passengers must touch in removing and repacking items of clothing and hand luggage and during a physical inspection. Passengers are arguably not under the control of an airline during pre-boarding security checks and airlines should carefully and fully investigate claims of infection to identify if the transmission could have occurred during the security check. Such claims may result in a potential liability exposure for the airport operator, although it appears more likely that such claims will be presented to the airline.

If a passenger removes their mask during the flight, is the airline liable for claims of infection?

Although the wearing of a face mask cannot prevent transmission, as this has been identified as a step to reduce the risk of transmission, wearing a mask is arguably a condition of carriage of the passenger. Nevertheless, there may be disputes about whether the airline has authority to enforce this condition. Inflight disputes may put the crew in a difficult position and there may be a reluctance to enforce this condition. Crew should keep records in the crew flight log of passengers who do not fully comply with this requirement. These may be required in the event that passengers or crew on the flight are infected. The wearing of or refusal to wear a face mask should not affect the prima facie liability of an airline for transmission to passengers or crew but may assist to moderate the impact on the brand and public image of the airline where passengers are infected.

"Airlines should ensure that their refund policies are as clear as possible and that an inability to board in such circumstances does not entitle the passenger to a refund."

What happens to passengers who fail pre- and post-flight health screening? 

It is unclear to what extent passengers will need to pass pre- and post-flight health screening. If such screening is necessary, airlines and airport operators will need to ensure that these can be done with appropriate social distancing, which may require significant space in airports. The time to test passengers and for the results of the tests will need to be factored into check-in, boarding and disembarcation times and procedures.

A further issue to be addressed is the status of passengers who fail pre- and post-flight health screening. It is unclear whether they would be entitled to compensation for delayed or cancelled flights and whether airlines would need to refund fares. Airline conditions of carriage should be reviewed to ensure that the refund policy is as clear as possible and that an inability to board in such circumstances does not entitle the passenger to a refund.

The position is more complicated in relation to passengers who fail health screening at the destination airport. Airlines should ensure that their responsibility for such passengers is clearly defined, particularly in the context of:

  • Whether the airline is required to carry the passenger back to the airport of origin;
  • Whether the airline must meet the cost of doing so;
  • Whether additional social distancing and other measures are required for such a passenger on the flight back to the airport of origin;
  • Whether the airline should disclose the passenger’s condition to the crew and to other passengers; and
  • Whether the airport of origin can refuse entry for the passenger.

Airlines should also consider whether to seek some guidance from the CAAT on the position in relation to such passengers as an industry-wide standard approach may be preferable.

Data privacy issues

As discussed in our article on the coronavirus and airline liability “What has changed since SARS”, airlines will need to balance data privacy concerns with the requirement to disclose passenger details to airport health and public safety authorities. This balance becomes more acute in the context of the measures and conditions on which flights can resume.

"In the event of a transmission during a flight, airlines should be prepared to respond to requests to use contact tracing and other means of contact with other passengers by reference to the airline records."

In the event of a transmission during a flight, airlines should be prepared to respond to requests to use contact tracing and other means of contact with other passengers by reference to the airline records, including passenger manifests and contact details and other personal data provided during the booking process. Requests from health and public safety authorities should be in writing and should be carefully considered to ensure that only necessary and relevant data are provided. Airlines should also consider whether to advise passengers that their details have been provided to a third party, including airport, health and public safety authorities and a general notification to passengers travelling from 1 May 2020 that their personal details may be provided to third parties, including airport, health and public safety authorities.

Airlines should also be prepared to deal with requests from other passengers and crew for details of passenger/s who are the alleged source/s of onboard infection. These should be dealt with in accordance with existing data privacy policies, including whether disclosure is subject to the requirements and restrictions of the Personal Data Privacy Act (2019).

Airlines should also be prepared to deal with passengers using social media to share images and videos of their flights, which result in the identification of passengers and crew in the images and videos. This is particularly in the context of:

  • Failure to maintain social distancing during check-in, boarding, disembarcation and during the flight;
  • Passengers and crew failing to observe and enforce measures and conditions during the flight; and
  • Passengers identifying other passengers and crew who are the alleged source/s of onboard infection.

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