Avian Flu and You, Part Deux

November 14, 2005

(or is it part trois? I dunno. I realize I’m starting to sound like a broken record, but – this stuff interests me. And it’s my blog. So there.)

If you’re not a member of the American Bar Association, chances are you missed one of the terrific perks this past week – the latest issue of the ABA Journal (link to home page for Journal). The cover story is a nice piece by Kristin Choo titled "The Avian Flu Time Bomb" and covers the coming pandemic from the perspective of lawyers, generally (as opposed to a specific industry or practice area).

A few quotes, which I believe are fair use, found me nodding in agreement. Ms. Choo states: "The airlines and travel industry would feel the hit first, predicts [Laurie] Garrett [senior fellow for global health at the Council of Foreign Relaitons in New York City], who is the author of the book The Coming Plague: Newly Emerging Diseases in a World Out of Balance."  And this extended quote gets me thinking about our contracts generally:

Many businesses assume that force majeure provisions in contracts would protect them against liability for failure to perform contractual duties during extreme circumstances, says Patrick O’Connor, who practices construction law and Faegre & Benson in Minneapolis. But he says the argument might not hold up, noting that the airlines have been unsuccessful since the 1970s in arguing that terrorism amounts to a force m ajeure … "Once an event is no longer unforeseen, force majeure law suggests that one or both parties to a contract should bear the risk," O’Connor says. He adds that it is possible that courts would also find an avian flu outbreak to have been foreseeable in light of the growing attention being given to the threat and hold businesses liable for failing to fulfill their contractual obligations even in the course of a pandemic."

So, chew this scenario over in your head: You’re the attorney for a large public airport, run as a department of large city, let’s say, or county. Airport employees are subject to the same sick leave and hiring/firing policies as all public employees. You have fueling and ground servicing contracts with a couple dozen airlines. Your ground handlers’ numbers have been more than decimated in the outbreak. You don’t have enough bodies to clean and gas the planes. (Let’s make it even more interesting: Some of those who do show up are showing symptoms of the avian flu….)

To the extent that Richard Marchi was referring to a public perception that large international airports are going to be the first line of defense against some foreign invasion of avian flu-infected PAX, I agree with him – that’s not the airports’ job (and that’s not the way it’s going to happen, in any event). But any airport that doesn’t spend some time thinking about this may well find themselves drawn up short by the ramifications. A little roundtable discussion might be in order.

Here’s an interesting article from Aviation Now about airports and their planning efforts for the feared-imminent avian flu pandemic. Richard Marchi of Airports Council International-North America (ACI-NA) presents the counterpoint:

"The real concern I have is that airports are public agencies, so they’re subjected to that generalized pressure that they’re doing something," said Richard Marchi, senior VP-technical and environmental affairs for Airports Council International-North America (ACI-NA). "Frankly I am disturbed how this issue is taking off in the public eye," he said.

Pressure builds on airports to develop a program and to answer questions such as, "Will you be quarantining people and refusing flights?" But airports "have a fairly limited role in communicable diseases" and are generally restricted to assisting first responders, Marchi explained.

Interesting. Worth a look.