OPINION OF THE COURT
OLYMPIC AIRWAYS V. HUSAIN
540 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 02-1348
OLYMPIC AIRWAYS, PETITIONER
v. RUBINA
HUSAIN, individually and as personal representative of the ESTATE
OF ABID M. HANSON, DECEASED, et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[February 24, 2004]
Justice Thomas delivered the
opinion of the Court.
Article 17 of the Warsaw
Convention (Convention)[
Footnote
1] imposes liability on an air carrier for a passenger’s death
or bodily injury caused by an “accident” that occurred in
connection with an international flight. In
Air France v.
Saks,
470 U. S. 392 (1985), the Court
explained that the term “accident” in the Convention refers to an
“unexpected or unusual event or happening that is external to the
passenger,” and not to “the passenger’s own internal reaction to
the usual, normal, and expected operation of the aircraft.”
Id., at 405, 406. The issue we must decide is whether the
“accident” condition precedent to air carrier liability under
Article 17 is satisfied when the carrier’s unusual and unexpected
refusal to assist a passenger is a link in a chain of causation
resulting in a passenger’s pre-existing medical condition being
aggravated by exposure to a normal condition in the aircraft cabin.
We conclude that it is.
I
The following facts are taken
from the District Court’s findings, which, being unchallenged by
either party, we accept as true. In December 1997, Dr. Abid Hanson
and his wife, Rubina Husain (hereinafter respondent), traveled with
their children and another family from San Francisco to Athens and
Cairo for a family vacation. During a stopover in New York, Dr.
Hanson learned for the first time that petitioner allowed its
passengers to smoke on international flights. Because Dr. Hanson
had suffered from asthma and was sensitive to secondhand smoke,
respondent requested and obtained seats away from the smoking
section. Dr. Hanson experienced no problems on the flights to
Cairo.
For the return flights, Dr.
Hanson and respondent arrived early at the Cairo airport in order
to request non-smoking seats. Respondent showed the check-in agent
a physician’s letter explaining that Dr. Hanson “has [a] history of
recurrent anaphylactic reactions,” App. 81, and asked the agent to
ensure that their seats were in the non-smoking section. The flight
to Athens was uneventful.
After boarding the plane for the flight to San
Francisco, Dr. Hanson and respondent discovered that their seats
were located only three rows in front of the economy-class smoking
section. Respondent advised Maria Leptourgou, a flight attendant
for petitioner, that Dr. Hanson could not sit in a smoking area,
and said, “ ‘You have to move him.’ ” 116 F. Supp.
2d 1121, 1125 (ND Cal. 2000). The flight attendant told her to
“ ‘have a seat.’ ”
Ibid. After all the
passengers had boarded but prior to takeoff, respondent again asked
Ms. Leptourgou to move Dr. Hanson, explaining that he was
“ ‘allergic to smoke.’ ”
Ibid. Ms. Leptourgou
replied that she could not reseat Dr. Hanson because the plane was
“ ‘totally full’ ” and she was “too busy” to help.
Ibid.
Shortly after takeoff, passengers in the
smoking section began to smoke, and Dr. Hanson was soon surrounded
by ambient cigarette smoke. Respondent spoke with Ms. Leptourgou a
third time, stating, “ ‘You have to move my husband from
here.’ ”
Id., at 1126. Ms. Leptourgou again refused,
stating that the plane was full. Ms. Leptourgou told respondent
that Dr. Hanson could switch seats with another passenger, but that
respondent would have to ask other passengers herself, without the
flight crew’s assistance. Respondent told Ms. Leptourgou that Dr.
Hanson had to move even if the only available seat was in the
cockpit or in business class, but Ms. Leptourgou refused to provide
any assistance.[
Footnote 2]
About two hours into the flight, the smoking
noticeably increased in the rows behind Dr. Hanson. Dr. Hanson
asked respondent for a new inhaler because the one he had been
using was empty. Dr. Hanson then moved toward the front of the
plane to get some fresher air. While he was leaning against a chair
near the galley area, Dr. Hanson gestured to respondent to get his
emergency kit. Respondent returned with it and gave him a shot of
epinephrine. She then awoke Dr. Umesh Sabharwal, an allergist, with
whom Dr. Hanson and respondent had been traveling. Dr. Sabharwal
gave Dr. Hanson another shot of epinephrine and began to administer
CPR and oxygen. Dr. Hanson died shortly thereafter.[
Footnote 3]
Id., at 1128.
Respondents filed a wrongful-death suit in
California state court. Petitioner removed the case to federal
court, and the District Court found petitioner liable for Dr.
Hanson’s death. The District Court held that Ms. Leptourgou’s
refusal to reseat Dr. Hanson constituted an “accident” within the
meaning of Article 17. Applying
Saks’ definition of that
term, the court reasoned that the flight attendant’s conduct was
external to Dr. Hanson and, because it was in “blatant disregard of
industry standards and airline policies,” was not expected or
usual. 116 F. Supp. 2d, at 1134.
The Ninth Circuit affirmed. Applying
Saks’ definition of “accident,” the Ninth Circuit agreed
that the flight attendant’s refusal to reseat Dr. Hanson “was
clearly external to Dr. Hanson, and it was unexpected and unusual
in light of industry standards, Olympic policy, and the simple
nature of Dr. Hanson’s requested accommodation.” 316 F. 3d
829, 837 (2002). We granted certiorari,
538 U. S. 1056 (2003),
and now affirm.
II
A
We begin with the language of
Article 17 of the Convention, which provides:[
Footnote 4]
“The carrier shall be liable for
damage sustained in the event of the death or wounding of a
passenger or any other bodily injury suffered by a passenger, if
the accident which caused the damage so sustained took place on
board the aircraft or in the course of any of the operations of
embarking or disembarking.” 49 Stat. 3018.[
Footnote 5]
In
Saks, the Court recognized that the
text of the Convention does not define the term “accident” and that
the context in which it is used is not “illuminating.” 470 U. S.,
at 399. The Court nevertheless discerned the meaning of the term
“accident” from the Convention’s text, structure, and history as
well as from the subsequent conduct of the parties to the
Convention.
Neither party here contests
Saks’
definition of the term “accident” under Article 17 of the
Convention. Rather, the parties differ as to which
event
should be the focus of the “accident” inquiry. The Court’s
reasoning in
Saks sheds light on whether the flight
attendant’s refusal to assist a passenger in a medical crisis is
the proper focus of the “accident” inquiry.
In
Saks, the Court addressed whether
a passenger’s “ ‘loss of hearing proximately caused by normal
operation of the aircraft’s pressurization system’ ” was an
“ ‘accident.’ ”
Id., at 395. The Court concluded
that it was not, because the injury was her “own internal reaction”
to the normal pressurization of the aircraft’s cabin.
Id.,
at 406. The Court noted two textual clues to the meaning of the
term “accident.” First, the Convention distinguishes between
liability under Article 17 for death or injuries to passengers
caused by an “accident” and liability under Article 18 for
destruction or loss of baggage caused by an “occurrence.”
Id., at 398. The difference in these provisions implies
that the meaning of the term “accident” is different from that of
“occurrence.”
Ibid. Second, the Court found significant
the fact that Article 17 focuses on the “accident which caused” the
passenger’s injury and not an accident that is the passenger’s
injury.
Ibid. The Court explained that it is the cause of
the injury—rather than the occurrence of the injury—that must
satisfy the definition of “accident.”
Id., at 399. And
recognizing the Court’s responsibility to read the treaty in a
manner “consistent with the shared expectations of the contracting
parties,”
ibid., the Court also looked to the French legal
meaning of the term “accident,” which when used to describe the
cause of an injury, is usually defined as a “fortuitous,
unexpected, unusual, or unintended event.”
Id., at
400.
Accordingly, the Court held in
Saks
that an “accident” under Article 17 is “an unexpected or unusual
event or happening that is external to the passenger,” and not “the
passenger’s own internal reaction to the usual, normal, and
expected operation of the aircraft.”
Id., at 405,
406.[
Footnote 6] The Court
emphasized that the definition of “accident” “should be flexibly
applied after assessment of all the circumstances surrounding a
passenger’s injuries.”
Id., at 405. The Court further
contemplated that intentional conduct could fall within the
“accident” definition under Article 17,[
Footnote 7] an interpretation that comports with another
provision of the Convention.[
Footnote 8] As such,
Saks correctly characterized
the term “accident” as encompassing more than unintentional
conduct.
The Court focused its analysis on determining
“what causes can be considered accidents,” and observed that
Article 17 “embraces causes of injuries” that are “unexpected or
unusual.”
Id., at 404, 405. The Court did not suggest that
only one event could constitute the “accident,” recognizing that
“[a]ny injury is the product of a chain of causes.”
Id.,
at 406. Thus, for purposes of the “accident” inquiry, the Court
stated that a plaintiff need only be able to prove that “some link
in the chain was an unusual or unexpected event external to the
passenger.”
Ibid.
B
Petitioner argues that the
“accident” inquiry should focus on the “injury producing event,”
Reply Brief for Petitioner 4, which, according to petitioner, was
the presence of ambient cigarette smoke in the aircraft’s cabin.
Because petitioner’s policies permitted smoking on international
flights, petitioner contends that Dr. Hanson’s death resulted from
his own internal reaction—namely, an asthma attack—to the normal
operation of the aircraft. Petitioner also argues that the flight
attendant’s failure to move Dr. Hanson was inaction, whereas
Article 17 requires an action that causes the injury.
We disagree. As an initial
matter, we note that petitioner did not challenge in the Court of
Appeals the District Court’s finding that the flight attendant’s
conduct in three times refusing to move Dr. Hanson was unusual or
unexpected in light of the relevant industry standard or
petitioner’s own company policy. 116 F. Supp. 2d, at 1133.
Petitioner instead argued that the flight attendant’s conduct was
irrelevant for purposes of the “accident” inquiry and that the only
relevant event was the presence of the ambient cigarette smoke in
the aircraft’s cabin. Consequently, we need not dispositively
determine whether the flight attendant’s conduct qualified as
“unusual or unexpected” under
Saks, but may assume that it
was for purposes of this opinion.
Petitioner’s focus on the ambient cigarette
smoke as the injury producing event is misplaced. We do not doubt
that the presence of ambient cigarette smoke in the aircraft’s
cabin during an international flight might have been “normal” at
the time of the flight in question. But petitioner’s “injury
producing event” inquiry—which looks to “the precise factual
‘event’ that caused the injury”—neglects the reality that there are
often multiple interrelated factual events that combine to cause
any given injury. Brief for Petitioner 14. In
Saks, the
Court recognized that any one of these factual events or happenings
may be a link in the chain of causes and—so long as it is unusual
or unexpected—could constitute an “accident” under Article 17. 470
U. S., at 406. Indeed, the very fact that multiple events will
necessarily combine and interrelate to cause any particular injury
makes it difficult to define, in any coherent or
non-question-begging way, any single event as
the “injury
producing event.”
Petitioner’s only claim to the contrary here
is to say: “Looking to the purely factual description of relevant
events, the aggravating event was Dr. Hanson remaining in his
assigned non-smoking seat and being exposed to ambient smoke, which
allegedly aggravated his pre-existing asthmatic condition leading
to his death,” Brief for Petitioner 24, and that the “injury
producing event” was “not the flight attendant’s failure to act or
violation of industry standards,” Reply Brief for Petitioner 9–10.
Petitioner ignores the fact that the flight attendant’s refusal on
three separate occasions to move Dr. Hanson was also a “factual
‘event,’ ” Brief for Petitioner 14, that the District Court
correctly found to be a “ ‘link in the chain’ ” of causes
that led to Dr. Hanson’s death. 116 F. Supp. 2d, at 1135.
Petitioner’s statement that the flight attendant’s failure to
reseat Dr. Hanson was not the “injury producing event” is nothing
more than a bald assertion, unsupported by any law or argument.
An example illustrates why petitioner’s
emphasis on the ambient cigarette smoke as the “injury producing
event” is misplaced. Suppose that petitioner mistakenly assigns
respondent and her husband to seats in the middle of the smoking
section, and that respondent and her husband do not notice that
they are in the smoking section until after the flight has
departed. Suppose further that, as here, the flight attendant
refused to assist respondent and her husband despite repeated
requests to move. In this hypothetical case, it would appear that,
“[l]ooking to the purely factual description of relevant events,
the aggravating event was [the passenger] remaining in his assigned
… seat and being exposed to ambient smoke, which allegedly
aggravated his pre-existing asthmatic condition leading to his
death.” Brief for Petitioner 24. To argue otherwise, petitioner
would have to suggest that the misassignment to the smoking section
was
the “injury producing event,” but this would simply
beg the question. The fact is, the exposure to smoke, the
misassignment to the smoking section, and the refusal to move the
passenger would all be factual events contributing to the death of
the passenger. In the instant case, the same can be said: The
exposure to the smoke and the refusal to assist the passenger are
happenings that both contributed to the passenger’s death.
And petitioner’s argument that the flight
attendant’s failure to act cannot constitute an “accident” because
only affirmative acts are “event[s] or happening[s]” under
Saks is unavailing. 470 U. S., at 405. The distinction
between action and inaction, as petitioner uses these terms, would
perhaps be relevant were this a tort law negligence case. But
respondents do not advocate, and petitioner vigorously rejects,
that a negligence regime applies under Article 17 of the
Convention. The relevant “accident” inquiry under
Saks is
whether there is “an unexpected or unusual
event or
happening.”
Ibid. (emphasis added). The rejection of
an explicit request for assistance would be an “event” or
“happening” under the ordinary and usual definitions of these
terms. See American Heritage Dictionary 635 (3d ed. 1992) (“event”:
“[s]omething that takes place; an occurrence”); Black’s Law
Dictionary 554–555 (6th ed. 1990) (“event”: “Something that
happens”); Webster’s New International Dictionary 885 (2d ed. 1957)
(“event”: “The fact of taking place or occurring; occurrence” or
“[t]hat which comes, arrives, or happens”).[
Footnote 9]
Moreover, the fallacy of petitioner’s position
that an “accident” cannot take the form of inaction is illustrated
by the following example. Suppose that a passenger on a flight
inexplicably collapses and stops breathing and that a medical
doctor informs the flight crew that the passenger’s life could be
saved only if the plane lands within one hour. Suppose further that
it is industry standard and airline policy to divert a flight to
the nearest airport when a passenger otherwise faces imminent
death. If the plane is within 30 minutes of a suitable airport, but
the crew chooses to continue its cross-country flight, “[t]he
notion that this is not an unusual event is staggering.”
McCaskey v.
Continental Airlines, Inc., 159
F. Supp. 2d 562, 574 (SD Tex. 2001).[
Footnote 10]
Confirming this interpretation, other
provisions of the Convention suggest that there is often no
distinction between action and inaction on the issue of ultimate
liability. For example, Article 25 provides that Article 22’s
liability cap does not apply in the event of “wilful mis- conduct
or … such
default on [the carrier’s] part as, in
accordance with the law of the court to which the case is
submitted, is considered to be equivalent to wilful misconduct.” 49
Stat. 3020 (emphasis added).[
Footnote 11] Because liability can be imposed for death
or bodily injury only in the case of an Article 17 “accident” and
Article 25 only lifts the caps once liability has been found, these
provisions read together tend to show that inaction can give rise
to liability. Moreover, Article 20(1) makes clear that the “due
care” defense is unavailable when a carrier has
failed to
take “all necessary measures to avoid the damage.”
Id., at
3019. These provisions suggest that an air carrier’s inaction can
be the basis for liability.
Finally, petitioner contends that the Ninth
Circuit improperly created a negligence-based “accident” standard
under Article 17 by focusing on the flight crew’s negligence as the
“accident.” The Ninth Circuit stated: “The failure to act in the
face of a known, serious risk satisfies the meaning of ‘accident’
within Article 17 so long as reasonable alternatives exist that
would substantially minimize the risk and implementing these
alternatives would not unreasonably interfere with the normal,
expected operation of the airplane.” 316 F. 3d, at 837.
Admittedly, this language does seem to approve of a
negligence-based approach. However, no party disputes the Ninth
Circuit’s holding that the flight attendant’s conduct was
“unexpected and unusual,”
ibid., which is the operative
language under
Saks and the correct Article 17
analysis.
For the foregoing reasons, we conclude that
the conduct here constitutes an “accident” under Article 17 of the
Warsaw Convention. Accordingly, the judgment of the Court of
Appeals is affirmed.
It is so ordered.
Justice Breyer took no part in
the consideration or decision of this case.
Footnote 1
Convention for the Unification of Certain
Rules Relating to International Transportation by Air, Oct. 12,
1929, 49 Stat. 3000, T. S. No. 876 (1934), note following 49 U.
S. C. §40105.
Footnote 2
Dr. Hanson and respondent did not know at the
time that, despite Ms. Leptourgou’s representations, the flight was
actually not full. There were 11 unoccupied passenger seats, most
of which were in economy class, and 28 “non-revenue passengers,” 15
of whom were seated in economy class rows farther away from the
smoking section than Dr. Hanson’s seat. 116 F. Supp. 2d, at
1126.
Footnote 3
For religious reasons, no autopsy was
performed to determine the cause of death.
Footnote 4
The Warsaw Convention’s governing text is in
French. We cite to the official English translation of the
Convention, which was before the Senate when it consented to
ratification of the Convention in 1934. See 49 Stat. 3014;
Air
France v.
Saks, 470 U. S. 392, 397 (1985).
Footnote 5
After a plaintiff has established a prima
facie case of liability under Article 17 by showing that the injury
was caused by an “accident,” the air carrier has the opportunity to
prove under Article 20 that it took “all necessary measures to
avoid the damage or that it was impossible for [the airline] to
take such measures.” 49 Stat. 3019. Thus, Article 17 creates a
presumption of air carrier liability and shifts the burden to the
air carrier to prove lack of negligence under Article 20. Lowenfeld
& Mendelsohn, The United States and the Warsaw Convention, 80
Harv. L. Rev. 497, 521 (1967). Article 22(1) caps the amount
recoverable under Article 17 in the event of death or bodily
injury, and Article 25(1) removes the cap if the damage is caused
by the “wilful misconduct” of the airline or its agent, acting
within the scope of his employment. See 49 Stat. 3019, 3020.
Additionally, Article 21 enables an air carrier to avoid or reduce
its liability if it can prove the passenger’s comparative
negligence. See
id., at 3019.
Footnote 6
The term “accident” has at least two
plausible yet distinct definitions. On the one hand, as noted in
Saks, “accident” may be defined as an unintended event.
See Webster’s New World College Dictionary 8 (4th ed. 1999) (“a
happening that is not … intended”); see also American Heritage
Dictionary 10 (4th ed. 2000) (“[l]ack of intention; chance”);
Saks, 470 U. S., at 400. On the other hand, as noted in
Saks, the term “accident” may be defined as an event that
is “unusual” or “unexpected,” whether the result of intentional
action or not.
Ibid. See Black’s Law Dictionary 15 (6th
ed. 1990) (“an unusual, fortuitous, unexpected, unforeseen, or
unlooked for event, happening or occurrence” and “if happening
wholly or partly through human agency, an event which under the
circumstances is unusual and unexpected by the person to whom it
happens”); see also American Heritage Dictionary,
supra,
at 10 (“[a]n unexpected and undesirable event,” “[a]n unforeseen
incident”). Although either definition of “accident” is at first
glance plausible, neither party contests the definition adopted by
the Court in
Saks, which after careful examination
discerned the meaning of “accident” under Article 17 of the
Convention as an “unexpected or unusual event or happening that is
external to the passenger.” 470 U. S., at 405.
Footnote 7
The Court cited approvingly several lower
court opinions where intentional acts by third parties—namely,
torts committed by terrorists—were recognized as “accidents” under
a “broa[d]” interpretation of Article 17.
Ibid. (citing
lower court cases).
Footnote 8
Specifically, Article 25 removes the cap on
air carrier liability when the injury is caused by the air
carrier’s “wilful misconduct.” 49 Stat. 3020. Because there can be
no liability for passenger death or bodily injury under the
Convention in the absence of an Article 17 “accident,” such “wilful
misconduct” is best read to be included within the realm of conduct
that may constitute an “accident” under Article 17.
Footnote 9
The dissent cites two cases from our sister
signatories United Kingdom and Australia—
Deep Vein Thrombosis
and Air Travel Group Litigation, [2003] EWCA Civ. 1005, 2003
WL 21353471, *650 (July 3, 2003), and
Qantas Ltd. v.
Povey, [2003] VSCA 227, ¶ ;17, 2003 WL 23000692, ¶ ;17
(Dec. 23, 2003) (Ormiston, J. A.), respectively—and suggests that
we should simply defer to their judgment on the matter. But our
conclusion is not inconsistent with
Deep Vein Thrombosis and
Air Travel Litigation, where the United Kingdom Court of
Appeals commented on the District Court and Court of Appeals
opinions in this case, and agreed that Dr. Hanson’s death had
resulted from an accident. The United Kingdom court reasoned: “The
refusal of the flight attendant to move Dr. Hanson cannot properly
be considered as mere inertia, or a non-event. It was a refusal to
provide an alternative seat which formed part of a more complex
incident, whereby Dr. Hanson was exposed to smoke in circumstances
that can properly be described as unusual and unexpected.” EWCA
Civ. 1005, ¶ ;50, 2003 WL 21353471, at *664, ¶ ;50.
To the extent that the precise reasoning used
by the courts in
Deep Vein Thrombosis and Air Travel Group
Litigation and
Povey is inconsistent with our
reasoning, we reject the analysis of those cases for the reasons
stated in the body of this opinion. In such a circumstance, we are
hesitant to “follo[w]” the opinions of intermediate appellate
courts of our sister signatories,
post, at 2
(Scalia, J., dissenting). This is especially true where there
are substantial factual distinctions between these cases, see EWCA
Civ. 1005, ¶ ;29, 2003 WL 21353471, at *659, ¶ ;29 (confronting
allegations of a “failure to warn of the risk of [deep-vein
thrombosis], or to advise on precautions which would avoid or
minimize that risk”); VSCA 227, ¶ ;3, 2003 WL 23000692, ¶ ;3
(noting plaintiff alleged a failure to provide “any information or
warning about the risk of [deep-vein thrombosis] or of any measures
to reduce the risk”), and where the respective courts of last
resort—the House of Lords and High Court of Australia—have yet to
speak.
Footnote 10
We do not suggest—as the dissent erroneously
contends—that liability must lie because otherwise “harsh results,”
post, at 5 (Scalia, J., dissenting), would ensue.
This hypothetical merely illustrates that the failure of an airline
crew to take certain necessary vital steps could quite naturally
and, in routine usage of the language, be an “event or
happening.”
Footnote 11
The Montreal Protocol No. 4 to Amend the
Convention for the Unification of Certain Rules relating to
International Carriage by Air (1975) amends Article 25 by replacing
“wilful misconduct” with the language “done with intent to cause
damage or recklessly and with knowledge that damage would probably
result,” as long as the airline’s employee or agent was acting
“within the scope of his employment.” S. Exec. Rep. No. 105–20, p.
29 (1998). In 1998, the United States gave its advice and consent
to ratification of the protocol, and it entered into force in the
United States on March 4, 1999. See
El Al Israel Airlines,
Ltd. v.
Tsui Yuan Tseng, 525 U. S. 155, 174, n.
14 (1999). Because the facts here took place in 1997–1998, Montreal
Protocol No. 4 does not apply.
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