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 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)
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 (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
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 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
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 .5th Cir. 2004
Carrier Liability for Spread of
Communicable Diseases
 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.
Carrier Liability for Spread of
Communicable Diseases
Thank You