Legal briefing | Environment & Regulatory, Regulated Industries |

COVID-19: Regulatory and Government Guidance for UK Aviation and Ports

Overview

The COVID-19 (coronavirus) pandemic has taken a significant toll on both the aviation and maritime sectors. Regulators in both areas have taken measures both voluntarily and involuntarily to try and mitigate the spread of the COVID-19 and have implemented guidance on the implications on both sectors resulting from the dramatic downturn in customer use and restrictions on non-critical trade routes.

In summary

In summary the key areas of guidance issued by aviation and port regulators include:

  • Health and Safety measures on board, in airports and ports;
  • guidance for aircraft and vessel operators;
  • passenger rights on delay, suspension and cancellation; and
  • continuity of supply chains.

Now Reading

Aviation

The increased speed of the spread of COVID-19 is resulting in rapid daily changes being made to the operations of aviation companies worldwide. In some instances, commercial passengers' routes have been totally suspended. The Civil Aviation Authority ("CAA") and European authorities have set out guidance for airline/airport operations and passengers.

Health and Safety Guidance 

Although operations from UK airports are diminishing on a day-by-day basis, Public Health England ("PHE") have produced guidance for health and safety procedures for non-clinical premises. Those sites still in operation should be mindful to monitor the updated guidance being published on the PHE and regulator platforms.

In addition, The European Union Aviation Safety Agency ("EASA") has issued a safety directive to combat the spread of coronavirus on flights to and from infectious areas. The directive specifies measures that must be taken prior to departure, during flights and on disembarkation. The key areas on guidance include:

  • disinfecting and cleaning of aircraft operating from infectious destinations after each flight (destinations based on World Health Organisation (WHO) and European Centre for Disease Prevention (EDCD) guidance);
  • aircraft operations to or from affected areas should be equipped with one or more Universal Precaution Kits ("UPK") and provision of facemasks on board;
  • aircraft operators and aerodrome operators should make readily available hand disinfectant solutions in the lavatories and waiting rooms used by their passengers and employees; and
  • aircraft to identify passengers having signs and symptoms of any acute respiratory infection ("ARI") and follow guidance on symptomatic passenger release (reporting, passenger locator cards, guidance on collecting information).

The International Civil Aviation Organisation ("ICAO"), have published further guidance of procedures to be taken on board aircraft:

  • Protocol for Reporting – using a Declaration of Health & Public Health Passenger Card;
  • Appropriate Procedures for Disinfection – using substances approved by State regulations or national regulatory bodies and use of suitable personal protective equipment;
  • Specific Equipment – using UPKs and training in accordance with ICAO Doc 10002; and
  • Protocol in the event of Denied Landing – aircraft to follow standard Operator Protocols.

Additional information on cargo, baggage handling and maintenance crews has been published by the International Air Transportation Association ("IATA").

  1. Passenger Rights and Guidance

    Passengers should be mindful to conduct a number of checks in the event of any cancellations or any future disruption predicted in the coming months. These should include monitoring government travel advice, travel company terms and conditions and travel insurance policies

Passengers impacted by delays, suspensions and cancellations are afforded the protections set out in European Regulation ("EC261/2004") on compensation and assistance in the event of denied boarding, flight cancellations, or long delays:

  • airlines have a duty of care when operating into and out of the UK;
  • safeguards on accommodation assistance, provision of foodstuffs and financial compensations remain in place; and
  • passengers should note that if a flight is cancelled, they will always be due a refund and to be provided with assistance, even in the event that they are not due further compensation.

Under EC261/2004, consumers can receive compensation for cancellations made within 14 days of a booking date, however, this regulation does not apply where the cancellation is due to an 'extraordinary circumstance', outside the airlines control. We are yet to see the full fallout resulting from aviation compensation claims resulting from COVID-19, although, decisions to close airspace, regulatory aircraft grounding and government restrictions on travel are likely to constitute an 'extraordinary circumstances' and may limit additional passenger compensation claims. The anticipated influx of claims may need to be considered on their merits and facts as and when they arise.

In respect of package holidays, protections are afforded under the Package Travel Regulations ("PTR"). The PTR should be reviewed where bookings have been made through an entity regulated under such laws.

  1. Industry Guidelines (airlines)
    In relation to the passenger rights as set out above, the CAA have published guidance for airlines on the application of Regulation EC261/2004 in response to the developing situation with COVID-19. This guidance sets out the obligations of airlines to provide a refund, re-routing at the earliest date or re-routing at a later date. In addition, guidance sets out what may constitute an 'extraordinary circumstance'.

What constitutes an 'extraordinary circumstance'?

The CAA have set out what may constitute an 'extraordinary circumstance', these include but are not limited to:

  • Government (FCO or International government) advice against all travel, or all but essential travel to a destination.
  • An impact of COVID-19 that is not inherent in the operation of the airline and beyond its control (i.e. where there is no government advice against travel, but where disruption has been directly caused by activities of regulatory authorities or other third parties related to COVID-19, such as closing airspace, restricting the airline’s operations or significant requirements on the airline’s passengers which causes disruption to flights.
  • Cancellations due to the economic and environmental consequences of operating flights with only a few passengers on board.

The CAA states that should a passenger or group of passengers disagree with the CAA’s interpretation in a specific case, it is open to them to seek to enforce their rights through the courts.

Ports/Maritime

There is currently no single national regulatory authority entirely responsible for the UK's ports and, in the absence of a single regulator, a series of bodies are responsible for regulating port operations. In light of the COVID-19 situation, the Government, British Ports Association ("BPA") and European bodies have set out guidance for operations in 'marine settings'.

Industry Guidelines (on board a vessel)

The key information set out by the UK Government and BPA to assist ships (including cargo vessels, ferries and cruise ships) and seaports in providing advice to staff on addressing coronavirus covers:

  • protocol on questioning passengers and crew before boarding any vessel on any symptoms of ARI;
  • procedures for disembarkation and/or quarantine of suspected ARI on board;
  • notification guidance for Master of Ship on reporting ARI to the Port Health Authorities through a Maritime Declaration of Heath ("MDH") and subsequent reporting to local Health Protection team;
  • requirements for appropriate use of Personal Protective Equipment ("PPE") and disinfection procedures;
  • guidance for on board cleaning and waste disposal procedures; and
  • powers to inspect ships, require mandatory off-shore mooring and on board quarantine.

As mentioned above, PHE have produced guidance for health and safety procedures for non-clinical premises, these include guidance for port staff on dealing with suspected and confirmed cases of COVID-19 in maritime settings. In addition, all UK ports and airports have been advised to follow the The Health Protection (Coronavirus) Regulations 2020 that came into force 10 February 2020.

The Health Programme for the European Union has published an advice paper on the preparedness and responses to COVID-19 at points of entry in the EU. Key guidance is given for both passenger and cargo vessels as follows:

  • management of suspected cases and isolation procedures on board a vessel;
  • required supplies and adequate PPE equipment on board;
  • reporting, notification and Contact Tracing activities on board and following disembarkation; and
  • cleaning and disinfection procedures.

Reduced operations: impact on supply chains

The Transport sector has been classified as a 'critical service' under government policy and this includes freight (shipping and air cargo) modes operating during the COVID-19 response.  Inevitably, priority will be given to 'critical sector' transport systems through which supply chains pass. The global nature of many supply chains increases the risk of disruption due to the coronavirus, for further information on responding to the supply chain disruption please review our briefing paper.

In addition, the BPA has called on the government to broaden the scope of testing and ensure that those working to keep the country supplied with imported food, energy and medicines are protected. Should the government extend the testing capacity to workers in the transport and logistics sector this should support efforts to ensure that food, energy and critical goods (among others) can continue to flow through the UK port and airports operations.

Closure of ports and airports

Seen as the UK ports facilitate 95% of UK trade, all necessary cargo and essential supplies to and from UK ports have been classified as critical supplies, this is the case for necessary exports and imports into UK airports. The expectation from the BPA is that any new power to potentially close individual ports or airports will only be used in extreme circumstances. A new Emergency Bill currently tabled in parliament may allow the government to request that port and airport operators temporarily close and suspend operations if Border Force staff shortages result in a real and significant threat to the UK’s border security. The power is only available when the Secretary of State has exhausted all relevant alternative mitigations and will be governed by strict safeguards to ensure that it is used fairly, responsibly and proportionately if the need arises.

The situation and policy announcements across both the aviation and port sectors in the UK is rapidly changing on a daily basis and all due care and attention should be given to new announcements from the CAA, BPA and any other regulatory/government bodies as and when they are released.

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