Covid-19 has brought to bear innate features of the air travel experience we never gave a thought to before the pandemic struck. Airline food, which most of us considered unpalatable, bland and even disgusting, is now being sold on the ground to high demand.
by Dr. Ruwantissa Abeyratne
in Montreal
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I remember years ago, I took my two little children to Disneyworld where, at the Epcot Center, we boarded a virtual flight called Soaring. The experience of the flight which one goes through without leaving one’s seat invites the participant to “ Feel the thrill as you’re raised high in the air and swept from one scenic locale to the next. See the world’s wonders—natural and manmade—like you never have before. No mountain is too high. No landscape is too far.
Your journey begins as the clouds part above the majestic Swiss Alps. Next, you’ll visit polar bears in icy Greenland, swoop past sailboats on Australia’s iconic Sydney Harbour and weave between elephants marching toward Mount Kilimanjaro.
Glide above marvels like the Great Wall of China, the Great Pyramids of Egypt and the Taj Mahal in India. Cruise over Monument Valley, Fiji’s Lau Island and thundering Iguazu Falls in South America. Look down on the Eiffel Tower as it sparkles like a jewel in the night, surrounded by the lights of Paris.”
Now, with Covid-19 in full control of our existential lives, we can actually sit in a moving aircraft that takes us soaring. Well, not quite. We will not soar over all the wondrous things Disney offers but, like Disney’s Soaring, we’ll not be on a real departure/destination flight in the traditional sense. Both Disney’s Soaring and a non-destination flight’s soaring offers the same thing – the flight experience which we seem to miss dearly these days.
We must hand it to the airlines for innovation and creativity. Covid-19 has brought to bear innate features of the air travel experience we never gave a thought to before the pandemic struck. Airline food, which most of us considered unpalatable, bland and even disgusting, is now being sold on the ground to high demand. The journey by air, which we thought was being undertaken to go from place to place either for business purposes or to fulfil our touristic desires to see foreign lands, has apparently had brought with it an inexplicable thrill devoid of either of these purposes.
It is reported that Singapore Airlines “is planning to start flights to nowhere for flyers who have been missing the experience of flying. The move is aimed at boosting revenues for the airline, which, according to a recent Reuters report, plans to cut 4,300 positions, or around 20 percent of its staff, as business takes a hit due to the coronavirus outbreak”. The Straight Times reported that the airline will start and end its flight at the same airport (Jewel Changi Airport) and fly approximately three hours to give the passengers the feeling and experience of a flight. There are attendant features involving an actual flight between two separate points offered in the package: “The airline is also to include partnerships with hotels to offer staycations, shopping vouchers at Jewel Changi Airport and limousine service to ferry customers around”.
Others have been quick to follow. Moneycontrol News records: “ EVA Air, one of the biggest carriers in Taiwan, recently operated a no-destination flight on Father's Day (August 8) in Taiwan. Korean airline Air Busan operated a no-destination flight with a select group of passengers on September 10. The flight took off from Gimhae International Airport, travelled over multiple areas of the country, including Pohang, Seoul, Gwangju and Jeju Island, for nearly two hours before returning to Gimhae”.
The same report says this is all to “satisfy flyer’s itch”.
At its most rudimentary level, this new development brings to bear the teleological deconstruction of the purpose air travel was meant to fulfil from an originalist’s point of view. If one were to refer to the driving instrument of international civil aviation – The Chicago Convention – the “Telus” or purpose of aviation is to “promote friendship and understanding” among the people of the world. In modern parlance, this phrase could translate as “promote connectivity between nations”. Clearly, the airlines are operating no destination flights to replenish their drastically depleted coffers in pandemic times. Promoting connectivity is far from this objective. Of course, the airlines have to survive.
There has been no known legal provision to specifically cover a non destination flight. From a legal perspective, the key issue would be the airspace over which these flights will be operated. One would assume that the flights will hover over the airspace of the territory in which they take off. Territorial airspace is defined in the Chicago Convention as the airspace above the land area and territorial waters under the sovereignty, suzerainty, protection or mandate of the country (the latter being 12 nautical miles). If that were to be the case, any legal issue arising on board the aircraft in flight would come within the domestic jurisdiction of the State. This is all well and good for a domestic flight. However, if the no destination flight were to traverse the airspace of a foreign country: say, hypothetically the Singapore Airlines flight traverses Malaysian airspace the aircraft would have to comply with the laws and regulations of the State flown over. If a death or injury occurs on board the aircraft in such circumstances the laws of the State flown over would prevail notwithstanding the domestic nature of the flight.
If a no destination flight would have an agreed stopping place outside the country of departure and destination, say, if a flight taking off from Jewel Changi, destined to return to the same airport stops in Kuala Lumpur for any reason as agreed in the passenger ticket, arguably, the flight could be defined as an international flight. In such an instance, both the Warsaw Convention of 1929 and The Montreal Convention of 1999 (which replaced the Warsaw Convention) which address issues concerning “international flights” define an international flight as one between two points in different countries or between the place of departure and the place of destination in the same country with an agreed stopping place in another country. There is no specific mention that the two places in the same country should be different.
In definitive terms the no destination flights at first glace seemingly defy the very nature of a commercial airline, which is a “common carrier”. A common carrier was defined in 1925 in the United States in the case of Burnett v. Riter as “one who engages in the transportation of persons or things from place to place for hire, and who holds himself out to the public as ready and willing to serve the public indifferently, in the particular line in which he is engaged”. Here, “from place to place” presumably meant from one place to a different place but, in the absence of specificity, one could argue that from one place to the same place could also fit into the description.
These are unprecedented times calling for a reinterpretation of the nuances of air transport. What seems to be going on with the emergence of new uses for aircraft and airline catering is that airlines are finding new and hidden markets hitherto untouched. If this is not disruptive innovation, nothing is.
Dr. Abeyratne, a former senior official at the International Civil Aviation Organization, is currently an aviation consultant who teaches aviation law and policy at McGill University.
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