UK: Air Carrier Liability: EPA Study Reveals Water Contamination In One Aircraft In Seven

In the United States, drinking water safety on airlines is jointly regulated by the EPA, Food and Drug Administration (FDA), and Federal Aviation Administration (FAA). The EPA regulates the parent systems that supply water to the airports and the drinking water once it is on board the aircraft in accordance with the Safe Drinking Water Act (SDWA). The regulatory structure for all public water systems, including aircraft, relies upon self-monitoring and reporting of results to the EPA. The FDA has jurisdiction over culinary water (eg. ice) and the points where aircraft obtain water (eg. pipes or tankers) at the airport. The FAA requires airline companies to submit operation and maintenance plans for all parts of the aircraft, including the potable water system.

In the summer and autumn of 2004, the EPA tested drinking water aboard hundreds of randomly selected domestic and international passenger aircraft. The first and second rounds of testing showed total coliform and e.coli in, respectively, 13% and 17% of samples. Total coliform are indicators that other disease-causing organisms (pathogens) could be in the water and could potentially affect people’s health. Total coliform and e.coli cause intestinal distress, stomach cramps and nausea (symptoms that can look very similar to the flu or food poisoning) and are often associated with human faeces.

On 9 November 2004, the EPA announced commitments from 12 major US passenger airlines to implement new aircraft water testing and disinfection protocols as well as a proposal to draft new regulations over the next 12-18 months. Under the commitments, airlines will implement quarterly disinfection of water delivery systems aboard passenger aircraft. They will also increase monitoring and they face strengthened public notification requirements when testing reveals water that does not meet EPA standards. Airlines will also be required to analyse possible sources of contamination that exist outside of the aircraft and to provide information related to practices of boarding water from foreign public water supplies not regulated by EPA.

Under Article 14 of the Chicago Convention 1944 each contracting State is required to take effective measures to prevent the spread of communicable diseases and to keep in close consultation with those international agencies concerned with international regulations relating to sanitary measures applicable to aircraft. States must issue guidelines for airlines, by liaising with bodies such as the WHO.

In considering the liability of airlines to passengers that have contracted illnesses from contaminated water supplies, a distinction needs to be drawn between claims brought in countries that recognise the applicability of the Warsaw Regime and Montreal Convention (as well as, in many cases, the exclusivity of the cause of action thereby provided) and those countries that do not, such as Thailand and Taiwan where domestic tort and contract law principles regarding person injuries/death will apply.

The Conventions require an accident to have caused the illness and to have taken place on board the aircraft or in the course of operations of embarking and disembarking. The US Supreme decision in Air France-v-Saks gives the authoritative definition of the term "accident" as "an unexpected or unusual event or happening that is external to the passenger", also holding that an injury resulting from "the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft", is not caused by an accident.

In the Scottish decision of King-v-Bristow Helicopters, the House of Lords held that compensable "bodily injury" includes "the physical infliction of physical injury during the flight even though not already manifested at the conclusion of the flight, for example a disease or illness contracted upon the aircraft say through the contamination of …on-flight food". In the American case of Re Alleged Food Poisoning Incident, March 1984, Abdulrahman Al-Zamil-v-British Airways, the court held that the supply of infected food to passengers causing food poisoning was an accident within the meaning of Article 17. The same would obviously apply were the offending substance drink rather than food, and this was held to be the case in the American case of Scala-v- American Airlines when an alcoholic drink was given in error, the passenger having asked for a non-alcoholic drink because of his heart condition. However, a person being "nauseated by standard airline fare" was held not to be an accident in the American case of Fishman-v-Delta Airlines.

The burden of proof will be on the passenger to prove that he/she suffered an illness as a result of the consumption of contaminated water supplies on the aircraft. Since the physical manifestations of food or water poisoning/contamination do not always arise during a flight, it can be difficult for passengers to prove that an accident within the definition of Article 17 has occurred. Often, the longer they leave a potential claim the harder it is to provide such evidence. In each case where a complaint is received, an airline will need to investigate the entire process by which water is supplied and, where an accident is determined to have taken place, take recourse action against those parties responsible for the contamination, who may include airline caterers, toilet cleaners and fresh water suppliers.

In press releases the EPA has advised passengers with compromised immune systems such as the elderly, cancer patients, pregnant women and young children or others concerned to request canned or bottled beverages and avoid drinking coffee, tea, and other drinks. That is probably sound advice, although the EPA has yet to identify any cases of outbreaks of illnesses from contaminated water on aircraft.