Type to search

[Part one of two series] Ghana Aviation Industry and Airlines Prevention of Legal Liability against Covid-19 & Other Infectious Diseases

Aviation Law

[Part one of two series] Ghana Aviation Industry and Airlines Prevention of Legal Liability against Covid-19 & Other Infectious Diseases

Share
Aviation law

Introduction.

The purpose of this paper is to express my thoughts on how the local airlines (local aviation industry) and by extension international flights can avoid legal liabilities (tortious claims)[1] in the light of COVID-19 and other communicable diseases. The local aviation industry albeit local airline companies must have in contemplation the matters I have considered in this piece.

This article is not limited to just the local flight companies but passengers who patronize this means of transport and for the mentioned stakeholders to consider specific measures and analysis opined in this submission. It is important for all stakeholders in the aviation industry to note that traveling protocols in aviation will not be the same moving forward in the light of COVID 19 and other known communicable diseases. This will be an impetus for a paradigm shift in employing better and safer health guidelines to protect passengers and persons who matter in the chain value.

The article discusses the history and pieces of legislations that affect the Ghana aviation industry, as well as its growth and development. Further to this, I will also put out literature and discussion on COVID-19 and other infectious diseases contracted at the time of boarding the flight, on board the flight and disembarking. On this subject, I will further, submit on various infectious diseases that are known to be communicable on flights including COVID-19. I will further discuss the infection rate, mode of transmission of such diseases, and deliberate more on the 2-row transmission zone theory and the control of infection on board the flight.

I will further discuss the main boarding strategies or policies and consider the ones that have less contact and less infection rate but yet economical for the airlines.

This article is in two part series, with Part two (2) titled: “Avoiding legal suits: Food for thought for the Ghana Local Airline Companies”.

The second part of the article proceeds further to discuss the legal dynamics that may cause legal action to be occasioned against local airline companies in Ghana particularly in the law of tort. It my expectation that having taken readers through part one of the two part series, i.e. concepts and the foundation of my submission readers progressing to part two would have clearer understanding of part two of the two part series. This second article espouses the various laws that affect the airline industry that is both local and international. In my submission and analysis, I employed a scenario or a case study to forge the understanding of readers on the limbs of the possible liabilities that airlines could face, how and what circumstances passengers could mount legal actions against airline in the law of tort i.e. duty of care, breach of the duty, causation and damages that may abound should the airline or the airport fall short of its legal obligations. 

The conclusive part of the article encapsulates recommendations to airline operators and to the general aviation stakeholders and participants.

Ghana per Ministry of Health confirmed the first two cases of COVID-19 on 12th March, 2020[2] through a press statement. According to the said press release laboratory results from the Noguchi Memorial Institute for Medical Research confirmed the two cases to be positive and that both individuals returned to Ghana from Norway and Turkey respectively by flight with the virus.

According to Pavia 2007, infections may be spread on aircraft through close contact and droplets, as well as air bone spread through aerosols as in the case of Severe Acute Respiratory Syndrome (SARS)[3]. Further to this, the World Health Organization (WHO) per its scientific briefing on the mode of transmission of COVID-19 stated that the virus is transmitted between people through respiratory droplets and contact routes[4].

Brief Background of the Ghanaian Aviation Industry.

The Ghana Civil Aviation Authority (GCAA) the regulatory authority of the Ghana aviation industry, has its head office at the Kotoka International Airport (KIA) Accra. The GCAA was established in 1930 but as a unit of the then Public Works Department (PWD). The GCAA was transmitted from a unit to departmental status and to an Authority under the PNDC law 151 on 16th May, 1986. This notwithstanding, the said PNDC law was repealed and replaced with Civil Aviation Act, Act 678, 2004 which established it into Authority to focus on the core functions of airspace management and safety regulations whiles a new company the, Ghana Airports Company Limited (GACL) handled airport development and operations[5].

The companies operating in the aviation sector include but are not limited are about three (3) cargo airlines operating in Ghana namely: Aero gem Aviation, Air Ghana, and Airlift International (Ghana). The passenger flights include: Africa World Airlines which started operations in 2012, and Passion Air in 2018, Gold Air and Royal Fly-GH which await certification from GCAA and resumption of operations respectively[6]. Ghana’s aviation industry is one of the best in the West African Sub-region with the attraction of routes such as Air France, Delta Airlines, Turkish Airlines, South African Airways, British Airways, Emirate Airlines, Middle East Airlines, KLM Royal Dutch, Airlines, Air Ivories and American Airlines in 2017[7].

COVID-19 and other infectious Diseases on board a flight

Pavia 2007, argues in the Journal of Infectious Diseases that perhaps the greater concern for global health is the ability of a person to travel virtually to any part of the world within 24 hours. He further opined that given the heightened awareness of pandemic influenza raised by the avian pandemic of H5N1 influenza, it is timely to consider the role played by air travel in the global spread of infectious diseases[8]. Pavia further pointed out that it will be extremely difficult to identify travelers with specific respiratory infection of concern such as SARS, tuberculosis, or avian influenza against the wide backdrop of other respiratory infections with overlapping symptoms. He mentioned that quarantine measures may be economically disruptive and have limited impact unless it can be linked with an accurate and respiratory diseases detection including COVID-19.

It is worth noting that, during the outbreak of SARS investigations conducted on forty (40) flights per passengers’ on board the said flights showed that five (5) out of forty (40) flights had transmissions[9]. Notably, on four (4) flights a small number of suspected infections occurred among persons seated within a few rows of the index patient[10].

The WHO indicated that respiratory infections can be transmitted through droplets of different sizes. The WHO further clarified that when the droplet particles are >5-10µm in diameter they are referred to as respiratory droplets[11]. COVID-19 virus is however, transmitted through this medium as well as close contact with the infected person. The WHO further indicated that close transmission may occur when a person is in close contact with an infected person of not more than 1m. That is, the infected person may show respiratory symptoms of coughing or sneezing. Other indirect mode of transmission of COVID-19 virus include surfaces of objects within the immediate reach of an infected person who had spewed droplets on that object. More so, whiles on board the flight with an infected person certain protocols must be observed as well as observing the zone of transmission per the sitting arrangement to reduce infection transmission. This leads me to discuss my next sub-topic.

The 2-Row Transmission Zone of COVID-19 and other Communicable Diseases on board the flight

According to Hertzberg and Weiss 2016, per their article titled “On the 2-ROW Rule for Infectious Diseases Transmission on Aircraft” Published in the Annuls of Global Health argued that many instances of in-flight transmission have been documented including Cholera, influenza, measles, meningococcal infectious, norovirus, Severe Acute Respiratory Syndrome (SARS), Shigellosis and Tuberculosis. Hertzberg and Weiss affirmed WHO’s mode of transmission of such communicable diseases by droplets and further added that this is propelled by short distance (within 1 meter) when an infectious traveler sneezes, coughs, touches or breathes[12]. The respiratory droplets measures > 5 microns and direct transmission occurs when pathogens contained in the droplets fall onto a susceptible traveler or mucosa are inhaled. Indirect transmission occurs through fomites such as surfaces of trays, seatbelts or lavatory door handles on hands of the infected person[13].

Further to the aforementioned, Hertzberg and Weiss 2016, pointed out that it has long been established scientifically that there is primary transmission risk associated with air travel and that most of these transmissions are respiratory infectious diseases associated within 2-ROWS of an infectious passenger.

Thrusting on, according to Hertzberg and Weiss 2016, respiratory infectious diseases are associated with persons sitting within two (2) rows of an infected person. The transmission zone on board a flight comprises five (5) rows to two (2) in front of the index case, two (2) behind the index case, and the row in which the index case is seated was the scope of investigations of in-flight transmission of tuberculosis and other communicable diseases (COVID-19). For purposes of emphasis this rule is empirical and does not directly take into account the physical and biological bases for droplet transmission that is < 1 meter (less than or equal to 1m) of contact[14]

Fig.1 Hertzberg and Weiss supra.

c

Fig 2.

From the above, the dark shaded portion is the index case or an infected person. The portions shaded in gray refers to persons who are at high risk of diseases transmission and the areas shaded white are passengers who are at low risk. The point is that according to the Center for Diseases Control, USA the gray shaded areas pertains to persons who need to be notified[15]of risk of infection. Fig.1 is a model of transmission risk which applies to all planes whether in Ghana or any part of the world. From the foregoing, the airlines owe a duty of care in law to inform persons within the infection zone of their probable risk. In the circumstances where the airline fails to inform the passengers of the risk of infection having been apprised with the condition or status of an on board passenger and another passenger contracts the disease the airline could be held to have breached its duty of care to the said passengers’ and could be liable for damages (compensation). Where the airline fails to detect an uninfected person on board the flight and the said index person infects another person, the newly infected person needs to establish that he or she contracted the disease either at the time of embarking, or on board the flight or disembarking the airline and or from the airport. I have deliberated thoroughly on all of these legal dynamics that may occur in my second article.

Hertzberg and Weiss quoting S.J Olsen, H. Chang. T.T Cheung 2003, further indicated that upon the outbreak of SARS in China in November 2002 a 72-year-old passenger with the said diseases infected 18 passengers and 2 flight attendant on a 3hour flight from Hong Kong to Beijing. The duo authors further indicated that only 50% of the infected passengers were seated within 2 rows of the index case (patient). Corona virus transmission is not an exception to the model diagram in Fig.1. Ghana’s first record case was an imported one by flight and the remainder of the transmission of the virus has continued through community spreading.

My point is that it has long been established that communicable diseases are transitted on board aircrafts. In addition, I want readers to learn of the safe zones on board the aircraft with an index person on board to inform them on how to manage risk.

Pavia 2007, indicates that many commercial aircrafts Vertical Airflow and High-Efficiency Particular Air (HEPA) filters limits exposure to small airborne and aerosol particles, but there are no regulations on HEPA filters[16]. S. Dean 2017, proffered that, even though aeroplanes use up to 50% recycled air, it is supposed to go through efficient filters that should trap pathogens such as bacteria, fungi and viruses. But it added that prolonged direct or indirect contact with an infected person could cause the other party or passenger to be infected[17].

How Airlines can reduce on-Board infections

At this stage of my submission it is important to mention that further studies conducted on air travel and commercial diseases by Namilar Derjany, Anuj, Scotch and Srinivasan 2017, per their paper titled “Multiscale model for pedestrian and infection dynamics during air travel” published in the American Physics Society Journal expounded on how airplanes can reduce infections. The authors’ developed a multiscale model combining social-force-based pedestrian movement with a population level stochastic[18] infection transmission dynamics framework. In simple term, per their study they created a population model of travelers on board airplanes to study the random probability distribution or pattern of infection transmissions within airplanes. The authors (scientists) further used computational model to evaluate the effects of passenger movement within airplanes and air-travel policies on the geospatial spread of infectious diseases[19]. It is important for readers to note that during their study the boarding policy[20] by an airline was more critical for infection propaganda compared to deplane policy[21].

The scientific authors in their research further concluded that enplaning in two (2) section resulted in fewer infections than passengers enplaning into multiple zones of the plane. This has everything to do with sitting arrangement and distribution of passengers on board the flight. There are many types of boarding the plane. But the airline must employ the one that yields less contact and congestion amongst the passengers. Thus, the more there is contact the more the likelihood of an increased rate of infection.

At this point I have established by through literature that the infection rate amongst passengers is very high at the stage of boarding as compared to disembarking. The question now is, how airlines can reduce infections which where traces by causal link are established would warrant legal suits against them. If for nothing at all the airline companies can as a matter of fact reduce passenger infections vis-à-vis legal suits.

I will quickly discuss the main boarding strategies or policies and consider the ones that have less contact and less infection rate but yet economical for the airlines.

When it comes to boarding or disembarking there are so many variables to consider with the process that is, the aircraft type, the flight load, airport infrastructure, using an air-bridge or remote stand, using multiple doors are just some factors. Then, of course, there are the economic influences on the process such as frequent flyers, those that have booked premium classes of travel or an ancillary option of boarding the aircraft ahead of others[22].

The mix about which boarding to employ is not just about rate of infections but also include the airlines aiming at reducing boarding times for improved profit margins.

Back-to-Front:

According to Jafer and Wei, 2017, Back-to-front boarding plan also known as the “traditional” boarding method is where passengers are made to board the plane from the back row of the aircraft and continue with the rows up to the front. The aircraft rows are divided into zones. The zones can be any number reaching from two to the total number of actual rows. This strategy is easy to implement, however, it is easily prone to inefficiency, as congestions occur over the boarding rows[23]. Where there is congestion there is increased risk of infection. The traditional boarding may be a little more problematic especially when social distancing matters most to reduce the rate of infection. This is similar to the boarding technique which is arguably the fastest solution for boarding a plane and is also known as the Steffen method. Its inventor, Jason Steffen, normally has little to do with aviation and was an astrophysicist with the University of Nevada, Las Vegas.

Random Strategy:

This boarding plan is when passengers are not assigned to specific seats but line up at the gate counter and are admitted in the order they arrive. Travelers can choose any unoccupied seat as soon as they are onboard. Passengers rush into the plane to get a better seat. This makes the boarding process faster; however, this reduces passengers’ comfort level[24]. Passengers are at will to seat anywhere and by this passengers will rush and or select at seat of their choice. There is congestion, more contact and increased infection amongst passengers because of the characteristics associated with this policy.

Outside- In Method:

This method is also called “Window Middle Aisle.” Passengers who are assigned to window seats will board first. When it is finished, middle and aisle seats follow. This method has so far revealed very efficient boarding time. It potentially reduces passenger interference caused by loading luggages and completely reduces passengers interfering with each other as they walk down the rows. This method is relatively easy to implement[25]. This in my humble opinion is the best, considering the very low contacts amongst passengers and its rapid efficiency. It is similar to the Steffen Method.

Rotating Zone:

In this method, aircraft rows are divided into zones (each zone grouping a number of rows). This method starts with the last zone in the back to be seated, then continues with the first zone in the front. After this, the order continues again with the furthest yet unoccupied zone in the back, then the front one and so on. The advantage of this method is that passengers who are boarding at the back and at the front will not interfere with each other

Reverse Pyramid:

This method is to board passengers from the outer back to the inner front of cabin. This method is in fact a combination of Back-to-Front and Window to Aisle. It calls for simultaneously loading an aircraft from back to front and outside in. Window and middle passengers near the back of the plane board first; those with aisle seats near the front are called last. This strategy is proven to be an efficient method by American West Airlines[26].

Optimal Method:

This method is to make passengers board in order from Back-to-Front but in every other row. This method aims at reducing the interference among passengers from back and the front and giving passengers enough space to load their luggage, which reduces the luggage delay in return. However, this method is not practical based on South West Airline experience. It is a challenge to arrange all the passengers in the proper order[27].

Conclusion

This leads us to part two of this paper titled “Avoiding Legal Suits: Food for thought for the Ghana Local Airline Companies in the light of communicable diseases”. At this juncture it is my belief that readers understand per literature provided so far that communicable diseases are contracted on board the flight and the pragmatic steps the airlines can take to avoid, reduce and or manage the situation to avoid such infections which may lead to legal suits. The next article discusses the legal liabilities that could be probable in all of this.


[1] Civil wrong

[2] Ministry of Health, Accra Ghana. “For Immediate Press Release: Ghana confirms two cases of COVID-19”. 12th March, 2020.

[3] Andrew T. Pavia. “Germs on Plan: Aircraft, International Travel, and Global Spread of Diseases”. Oxford Academic. The Journal of Infectious Diseases. Published on 1st March, 2007. Vol 195, issue 5, pages 621-622.

[4] WHO, 29th March, 2020. “Modes of transmission of virus causing COVID-19: Implications for IPC precaution recommendations. who https://www.who.int/news-room/commentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations

[5]https:www.gcaa.com.gh/web/?page_id=342 

[6] Wikipedia “List of Airline in Ghana” https://en.wikipedia.org/wiki/List_of_airlines_of_Ghana  retrieved on 16th April, 2020.

[7] Ghana Investment Promotion Centre. “Ghana’s Budding Aviation Sector-Infrastructure is critical to the Development of the Aviation Sector” https://www.gipcghana.com/press-and-media/633-ghana-s-budding-aviation-sector-infrastructure-is-critical-to-the-development-of-the-aviation-sector.htmlretrieved on 16th April, 2020.

[8] Pavia 2007 supra.

[9] Pavia supra

[10] An indexed patient or passenger is a passenger who is sick or carries a disease on board a flight.

[11] WHO supra.

[12] Vicki Stover Hertzberg and Weiss PhD Atlanta Georgia. “On the 2-row Rule for Infectious Diseases Transmission on Aircraft” published by Elsevier Inc on behalf of School of Medicine Mount Sinai. Annuls of Global Health. 2016 vol. 82, N0. 5, 2016. ISSN2214-9996.

[13] Hertzberg and Weiss supra.

[14] Hertzberg and Weiss 2016 supra

[15] Centre for Disease Control USA. “Protecting Traveler’s Health from Airport to Community: Investigating Contagious Disease on Flights” https://www.cdc.gov/quarantine/contact-investigation.htmlretrieved 16th April, 2020.

[16] Pavia supra.

[17] Signe Dean 2017. “Here’s how we can stop planes from becoming total cesspools of infectionshttps://www.sciencealert.com/here-s-how-we-can-stop-planes-from-becoming-total-cesspools-of-infectionretrieved on 17 April, 2020.

[18] Stochastic means having a random probability distribution or pattern that may be analyzed statistically.

[19] Sirish Namilae, Pierrot Derjany, Anuj Mubayi, Mathew Scotch, and Ashok Srinivasan
“Multiscale model for pedestrian and infection dynamics during air travel” Phys. Rev. E 95, 052320 – Published 31 May 2017 Amerrican Physics Society Journal

[20] Embarking a plane.

[21] Disembarking a plane.

[22] The Blue Swan Daily 2020 “Getting the boarding process right could be key to minimising air travel exposure to infection and surprisingly a random approach is judged to be the most effective tactic” retrieved on 27th July, 2020. https://blueswandaily.com/getting-the-boarding-process-right-could-be-key-to-minimising-air-travel-exposure-to-infection-and-surprisingly-a-random-approach-is-judged-to-be-the-most-effective-tactic/

[23] Shafagh Jafer and Wei Mi per their Article published on 28th November, 2017 of Department of Electrical, Computer, Software and Systems Engineering, Embry-Riddle Aeronautical University, Daytona Beach, FL 32114, USA in the Aerospace Journal 2019 “Comparative Study of Aircraft Boarding Strategies Using Cellular Discrete Event Simulation” retrieved on 27th July, 2020.

[24] Jafer and Wei supra.

[25] Jafer and Wei supra.

[26] Jafer and Wei supra.

[27] Jafer and Wei supra.

Tags:
Christian Lebrecht Malm-Hesse

Christian Lebrecht Malm-Hesse Esq. holds a Bachelor of Laws Degree (LLB) from the University of London (2012). Mr. Malm-Hesse completed Ghana School of Law in 2016 and whiles there Mr. Malm-Hesse founded the Ghana School of Law Moot Court Honour Society in 2016. He was called to the Ghana Bar that same year as a Barrister and Solicitor of the Supreme Court of Ghana. He is a member of the Ghana Bar Association since 2016 and World Trademark Review. As a versatile young Lawyer, he has advised on corporate and bank transactions. Mr. Malm-Hesse writes commercial articles to international journals and believes in legal industry, hard work and quality work to client satisfaction. Mr. Malm-Hesse is currently with K-Archy & Company Legal & Management Consultants. By virtue of his exposure in legal practice, Mr. Malm-Hesse can boast of an impressive background and sound knowledge in Commercial law; Real Estate transactions; Immigration; Corporate Practice; Intellectual Property; Investment and Securities; Project Finance Advise; Banking; Litigation; and Shipping. Mr. Malm-Hesse has keen interest in technology law and transactions. He spends considerable time where necessary to hold seminars and address the business community on the aforementioned practice areas. Mr. Malm-Hesse further foundered Debate Ghana Association(2010) which now operates under the name Centre for Legal Resource Ghana (NGO). Amongst Its objects include legal aid services to the under-privilege citizens and in Ghana.

    1

Leave a Comment

Your email address will not be published. Required fields are marked *