Aviation Law Paper_Fordham Spring 2013_J Courtey Fevrier

Aviation Law Paper – Professor Stephen Fearon
Fordham Law School
April 2013
THE ENDLESS REVISITATION OF THE DEFINITION OF
“ACCIDENT” UNDER THE ARTICLE 17 OF THE WARSAW
CONVENTION
Julien Courtey Fevrier
LL. M. International Business and Trade Law

The Endless Revisitation of the Definition of “Accident” Under the Article 17 of the Warsaw Convention (2013)

2
INTRODUCTION
The dream of Icarus finally became true during the 20th
century. Humans can fly thanks to
the invention and development of aircrafts. A simple look at the sky can give us the dimension of
this evolution in transportation with an average number of 8,000 up to 13,000 aircrafts in the air
at all the times1
. Because faster and, at some point, safer, this is evolution is particularly relevant
for international transportation of passengers in which aircrafts, have replaced and substituted
rapidly boats, more focused nowadays on transportation of goods.
However, as Icarus flying to close from the Sun, the airline activity is not without risks.
Accidents can occur during the operation of an airlines journey causing, on one hand, some
material and economical damages (i.e. the destruction of the aircraft or its goods), and on the
other hand, damages to the passengers who can be victim of death or severe injuries.
Therefore, the notion of “accident” is a central notion as the cause of action for recovery of
the damages suffered. Although many courts tried to define it, the definition of “accident” is still
a cause of debate. Many cases are still brought upon the deck of courts to define the meaning of
an “accident”. To some extent, the number of assumptions looks endless.
For instance, last year, the Federal District Court of the Eastern District of Pennsylvania has
recently to decide whether or not a passenger ordering a vegetarian meal that contained gluten

1
http://www.flixxy.com/scheduled-airline-flights-worldwide.htm; Display of all commercial air traffic in the world
during a 24-hour period; animation produced by the Institute of Applied Information Technology (InIT), Zurich
University of Applied Sciences.


3
and afterward suffered of allergic reactions is an accident 2
. In that case, the defendant carrier
brought a motion for summary judgment that the District Court denied alleging, “if the plaintiff
requested a gluten-free meal but was served a meal with gluten, an accident occurred”3
.
In another case arose in 2012, a short time prior landing on flight from Dubai to Houston
operated by Emirates, an old woman was found collapsed in the lavatories but still conscious and
breathing. She was transported to the nearby hospital after landing during while she lost
consciousness and finally died two days later. Plaintiff challenged Emirates’ liability on the
ground that crewmembers declined to perform CPR and use a defibrillator prior landing4
. The
5th Circuit Court has to decide whether or not “the flight crew’s response to a passenger’s
medical emergency did or not constitute an accident”5
. The court held that the crew’s response
did not constitute an “accident” because the airline failure to follow all relevant procedures in
response to the medical emergency was not unusual or unexpected6
.
Prior the birth and the development of the airline industry, some courts had already the
concern to state and provide a clear definition of the word “accident”. The most relevant
illustration can be found in a case arose in United Kingdom in 1903. In Fenton v. Thorley & Co.
Ltd.7
, Lord Lindley, one of the judges, delivered his thought of what constitutes an accident. He
considered the word “accident” means “ any unintended and unexpected occurrence which
produces hurt or loss”8
. Going further, he also stated that the notion of accident has dual meaning

2
Condon & Forthsyth LLP, The Liability Reporter, 2013 Edition, (2013), at *6; citing Shaerfer-Condulmari v. US
Airways Group, LLC, 2012 WL 2920375 (E.D. Pa. 2012).

3
Id.
4
Id. at *6,7 citing White v. Emirates Airlines, Inc., 2012 WL 4478446 (5th
Cir. 2012)

5
Id. at *7
6
Id.
7
Fenton v. Thorley & Co. Ltd., WN 149 HL (1903)
8
Karine Paulsson, Passenger Liability According to the Montreal Convention, Thesis at the University of Lund,
Sweden (2009), at 27


4
as being “often used to denote both the cause and the effect”9
. In the avant-garde, Lord Lindley
provided some insightful elements that probably inspired some drafters in their wording of the
international conventions regulating air carrier and interpretations of such international statutes
by national courts10
.
The nations addressed early the concern of the regulation of the airline industry to ensure its
growth and its security because the damages caused by an aircraft accident can be extremely
expensive and, sometimes, involved the death of humans’ life.
Anticipating the expansion of the industry that occurred in the 1960’s and 1970’s with the
release of commercial jet aircrafts11
, nations organized two international air conferences12
in the
1920’s to formulate a uniform a body of regulations13
. As a result, the Warsaw Convention of
192914
was adopted. The Warsaw Convention, which original language is French, took effect in
February1933 and is now in force in 152 countries. The United States adhered to the treaty in
1934 and, since that time, the Convention preempts domestic law governing liability in
international air transportation15
.
The Warsaw Convention was adopted to achieve two goals: (1) to provide a uniform system
of regulation16
for air carriers operating international transportation and (2) to limit airline
liability in order to protect the airline industry from disabling losses17
.

9
Id.
10
cf. infra (a) the Article 17 of Warsaw Convention of 1929 about the notion of accident as cause and not an effect
and (b) Air France v. Saks, 470 U.S. 392 (1985) concerning the necessary elements which constitute an accident
according to the Supreme Court of the United States. In her opinion, Justice O’Connor relied on Lord Lindley citing
his definition of accident and stating than to be constituted an accident must include an unintentional and unexpected
event; Air France v. Saks, 470 U.S. 392, 398 (1985).
11
The most famous of them, still flying in 2013, is probably the Boeing 747, released in 1969
12
Kathryn M. Nutt, Air France v. Saks: An Accidental Interpretation of the Warsaw Convention, 1 Am. U. Int'l L.
Rev. 195, 196 (1986)
13
Id.
14
The exact title of the convention is “Convention for the unification of certain rules relating to international
carriage by air, signed at Warsaw on 12 October 1929”.
15
See, Air France v. Saks: An Accidental Interpretation of the Warsaw Convention, at 199, 200.

16
Id. at 196.


5
The specific provisions concerning the notion of “accident” are included into the chapter
related to the air carrier liability18
. Two specific articles stated the rules of the air carrier liability
in case of an event causing damages. Damages caused to the goods are stat stated in the Article
18, and damages caused to the passengers are stated in the Article 17. In its version of 1929, the
Article 18 states that the air carrier liability for damage, destruction or loss of goods is based on
the “occurrence which caused the damage” 19
. The Article 17 relative to the damages caused to
passengers does not use the same wording stating that the air carrier is liable “if the accident
caused the damage”20
. Then, the cause of action is different whether the event affects a material
think (Article 18 of the Convention) or a person (Article 17 of the Convention). The word
“accident”, as a cause of action, only applies for damages caused to the persons. Damages caused
to a material think are excluded and rely upon an “occurrence”.
The system of liability of the Warsaw Convention in the Article 17 was “merely (1) [to
create] a presumption of liability [. . .] , and (2) [to establish] a maximum limit on the potential
liability to which a carrier might be subject from an injury caused by an accident in international
transportation”21
. In other words, the Article 17 creates a “quasi-absolute” liability of the air
carrier in case of “accident” causing damages caused to passengers. There are only two existing
ways for air carriers to rebut their liability: by alleging a due care defense22
as stated in Article

17
Id. at 197.
18
Chapter III of the Warsaw Convention entitled “Liability of air carrier” Entitled since the revision of the Warsaw
Convention by the Montreal Convention of 1999 “Liability of air carrier and extent of compensation for damage”.

19
Article 18 (1) of the Warsaw Convention: “an air carrier is liable for damage to sustained in the event of the
destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the
damage so sustained took place during the carriage by air.”
20
Article 17 of the Warsaw Convention: “The carrier is 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.”
21
Husserl v. Swiss Air Transport Co., Ltd., 388 F.Supp. 1238, 1243 (S.D.N.Y. 1975).
22

See,
Air France v. Saks: An Accidental Interpretation of the Warsaw Convention, at 199.


6
20 (1) of the Warsaw Convention23
, or by proving a negligence or fault of the passenger victim
of the damage.
Unfortunately, as pointed by Justice O’Connor in the case Air France v. Saks24
, “while the
text of the [Warsaw] Convention gives [. . .] clues to the meaning of “accident”, it does not
define the term”25
. This absence of definition opens the door to different interpretations of what
constitutes an “accident”. Such interpretations are even more important as the “accident”
represents the base of air carrier liability for damages suffered by passenger during an
international transportation.
Counterbalancing this presumption of liability, the Article 22 sets a monetary limit per
person. The air carrier’s liability was initially fixed at a maximum125,000 Poincare Francs
which represented almost $8,300 at that time26
. Time after time, with the evolution and the
growth of the airline industry, the ceiling of the air carrier liability was several times adjusted
and raised27
.
Under pressure of the United States, inter alia, the Warsaw Convention of 1929 was revised
and substantially modified. As a last result, the Montreal Convention of 1999 amended several
provisions of the Warsaw Convention. For instance, the limits of liability of air carriers were
dramatically increased. Abandoning any reference to the Poincare Francs, the Montreal
Convention based the compensation limit upon a new unit: the Special Drawing Rights (SDR)28
.

23
Eliminated by the Montreal Convention of 1999.
24
Air France v. Saks, 470 U.S. 392 (1985)
25
Id. at 399
26
See, Air France v. Saks: An Accidental Interpretation of the Warsaw Convention, at 198
27
For instance, the Montreal Agreement of 1966 raised the limit up to $75,000.
28
Based on a mix of currency values established by the International Monetary Fund.


7
Initially fixed up to 100,000 SDR per passenger 29
, this amount was recently increased up to
113,100 SDR30
in December 2009.
The Montreal Convention of 1999 also substantially modified the wording of the Article 18.
For instance, the word “event” replaced the term of “occurrence” in the first section 31
.
However, even if “the language of the Article 17 was not a model of clarity”32
, this article
was not affected by any modification and remains unchanged. Then, the term of “accident” is
still widely discussed by courts33
. The courts played – and are still playing – an important role to
determine what constitutes an “accident”.
The decision of the Supreme Court in Saks is a turning point in drawing the lines of the
definition of an “accident”. In this case, the plaintiff, Mrs. Saks, felt a severe pressure and pain in
her left during the descent of the aircraft of a flight from Paris to Los Angeles without
mentioning her ailment to any Air France personnel during the descent or when she
disembarked. Five days later, a medical diagnostic established that she had become permanently
deaf in her left hear. Plaintiff subsequently brought a claim against Air France on the ground of
the Article 17 of the Warsaw Convention to recover the damages of her injury. In the opinion
delivered on that case, Justice O’Connor refused the analysis of the Ninth Circuit34
viewing the
liability of air carriers under the Article 17 as “absolute” based on the “language, history and
policy of the Warsaw Convention”35
. Justice O’Connor relied upon Lord Lindley’s definition of

29
Article 21 of the Montreal Convention of 1999 and which represents approximately 75,000 USD.
30
Approximately 168 000 USD or 129 000 EUR as of December 2011.
31
Article 18 (1) of the Montreal Convention of 1999: “The carrier is liable for damage sustained in the event of the
destruction or loss of or damage to, cargo upon condition only that the event which caused the damage so sustained
took place during the carriage by air.”
32
Christopher E. Cotter, Recent Case Law Addressing Three Contentious Issues in the Montreal Convention, 24 No.
4 Air & Space Law 9, 11 (2012)
33
See, Passenger Liability According to the Montreal Convention, at 29
34
Saks v. Air France, 724 F.2d 1383 (9th Cir. 1984)
35
Air France v. Saks, at 395


8
accident36
and “the French legal meaning”37
of the term of “accident”. Based on these elements,
she stated a definition of “accident” in considering that the “ liability under the Article 17 of the
Warsaw Convention arises only if a passenger injury is caused by an unexpected or unusual
event or happening that is external to the passenger”38
.
The rationale of the Court addressed also the other issue stated by Lord Lindley in his
definition of the word “accident”: whether the accident is the cause or the effect of the damages.
Relied on the French legal meaning of “accident”, which is usually defined as a fortuitous,
unexpected, or unintentional event”39
, when it is “used to describe a cause of injury”40
, the
Supreme Court held that the term of “accident” has to be viewed as the cause of the injury rather
as the result of such injury. The British41
and French42
courts also adopted the same
interpretation.
At that time, some people could consider that all the issues related to the application of
Article 17 of the Warsaw Convention are solved. Such definition of accident provided by the
Supreme Court will avoid any future issues to consider what constitute an “accident”.
However, the holding of Saks also provided that “this definition should be flexibly applied
after assessment of all circumstances surrounding passenger’s injuries”43
. In other words, the
Supreme Court gave to lower courts the right to encompass a substantive number of situations as
an “accident” occurring during the operation of an aircraft. Then, the debate of what constitutes
an accident was not permanently closed. Based on that assumption, two distinguished periods of

36
Id. at 398 and cf. supra, page 2
37
Id. at 399
38
Id. at 405

39
Id. at 400; See, Grand Larousse de la Langue Française 29 (1971) defining accident as « un évènement fortuit et
fâcheux, causant des dommages corporels ou matériels. »
40
Id.
41
Id. citing Fenton v. Thorley & Co. Ltd.

42
Id. citing Air France v. Haddad, CA Paris, Civ. 1ere, 19 juin 1979 (Revue Française de Droit Aérien 327,328) and
Cass. Civ. 1ere, 16 février 1982.
43
Id. at 405


9
analysis can be identified: firstly, the period prior Saks’ ruling and, secondly, the period after. If
the period before is mainly focused on the issue of refraining an “absolute’ liability, the period
after Saks is mainly focused on encompassing other situations as new forms of “accident”. In a
certain way, in including more and more events as “accident”, the definition has become
meaningless.
The most relevant case highlighting this evolution comes from the Supreme Court itself in
2004 with its decision in Olympic Airways v. Husain44
. In this case, an asthmatic passenger died
in flight because he was seated to close from the smoking section of the plane and the crew
member refused by three times to reassign him another seat. The Supreme Court held that “Being
exposed to the ambient smoke [. . .] aggravated [the] pre-existing asthmatic condition leading to
[the] death [of the passenger]”45
. The Supreme Court held also that the inaction of the
crewmembers is constitutive of the “chain of causes”46
which provoked the accident. Then now,
inaction can constitute an “accident” under the Article 17 of the Warsaw Convention.
Is such decision constitutes a way back to an “absolute” liability expressly denied by Saks
twenty years earlier? An affirmative answer cannot yet be given. But the question clearly
reopens another round of discussions about the definition of the word “accident”.
The interpretation of the word “accident” is central because a damage suffered by a person
during an international flight can be only recovered if the event causing the damage is an
“accident” under the Article 17 of the Warsaw Convention. A deeper analysis of the courts
decisions before and after Saks give some keys to understand such evolution and its oscillation
between strict and absolute liability of air carriers: from an absolute to strict liability (I) and then,
from a strict to a new form of absolute liability (II).

44
Olympic Airways v. Husain, 540 U.S. 644 (2004)
45
Id. at 653

46
Id.


10
I. The definition of the word “accident” before Air France v. Saks:
from an absolute to a strict liability (1929 – 1984).
With a small number of situations of “accident” and a small number of passengers, the early
years of commercial aviation saw a predominance of an absolute liability theory (A). However,
the growth of airline industry brought to consider more and more situations as an “accident” until
the Supreme Court in Saks set a clear definition of this term (B).
A. The predominance of the strict liability in the early years of aviation.
Both technical performances and restricted number of passenger were elements that implied
to be more in favor of an absolute liability. Indeed, there were a restricted number of causes of
“accident” and it mainly concerned professional pilots (1). However, with the “take off” of the
airline industry, the number of events that could be qualified as “accident” has been expanded
(2).
1. The restricted number of causes of accident (1920 – 1960).
Prior the appearance of jetliners aircrafts at the end of the 1950’s, the majority of
international passengers used boats, specifically for cross-oceans journeys. Indeed, the number of
passengers taking aircraft for international trip was not significant and most past of the time
reserved to the elite of the society (e.g. officials, diplomats, kings, actors, singers, athletes). In
addition, issues mainly concerned whether a crash or a disappearance of an airplane47
. Based on

47
See
Air France v. Saks: An Accidental Interpretation of the Warsaw Convention, at 204


11
these two factors, courts did not go through a deep and critical analysis of the term of
“accident”48
.
Some cases49
arose, as for instance, a case of crashing plane in Grey v. American Airlines,
Inc.,50
and, a case of disappearing aircraft in Warren v. Flying Tiger Line, Inc.,51
. In both type of
cases, most of the time, the air carrier was at the origin of the cause of the accident whether due
to a mistake from the pilot and/or from a technical issue affecting the aircraft while in flight.
Then, the courts never had the chance to challenge the definition of “accident” and applied
automatically the Article 17 of the Warsaw Convention for the recovery of the issues of the
decedents. In that perspective, the liability of air carrier under the Article 17 of the Warsaw
Convention was in fact “absolute”.
But such situation rapidly changed in the 1960’s and 1970’s. With the dramatic growth of
number of passengers, airlines were confronted to new forms of issues that can constitute at
some point an “accident”.
2. The progressive but limited expansion of causes of accident (1960 – 1980).
During the 1960’s and 1970’s, the courts started to expand the breadth of the term of
accident52
. Courts generally admitted external factor of air carrier activities such as hijacking and
terrorism53
within the scope of an “accident” (a). But this expansion was limited with a lot of
decisions denying as an “accident” some internal factors of the passenger such as emotional
distress (b).

48
Id.
49
Id. See, FN 51
50
Grey v. American Airlines, Inc., 95 F .Supp 756 (S.D.N.Y. 1950)
51
Warren v. Flying Tiger Line, Inc., F. Supp 223 (S.D.Cal. 1964)
52
53
Id. and see Davis L. Wright, Flying the Overly Friendly Skies: Expanding the Definition of a Warsaw Convention
“Accident”, 19 No. 5 Andrews Aviation Litig. Rep 1, (2001), at 5


12
a. The progressive expansion of the term “accident” to Hijacking and terrorism
This forms of threat, out of any controls of the air carriers, appeared and disturbed airlines
operations in the 1970’s. The courts unanimously agreed that hijacking encompassed within the
meaning of Article 17 of the Warsaw Convention54
. “[N]othing that hijacking [. . .] was an
Article 17 accident”.55
In some cases, the Court has no role of qualification as the parties yet
agreed that hijacking was an accident56
. Then, the courts admitted easily that hijacking was risk
characteristic of air travel57
. This interpretation of the notion of accident including hijacking was
never questioned and naturally continuously applied after Saks58
.
Terrorism was also encompassed within the meaning of the Article 17 of the Warsaw
Convention to the extent, as hijacking, it endangers passengers’ life and can cause “bodily
injuries”. Some relevant cases held that “terrorist’s attack is characteristic of air travel”59
.
Evangelinos v. Trans World Airlines, Inc and Day v. Trans World Airlines, Inc., are two
cases stemmed from the same event60
and respectively arose upon the Third Circuit and the
Second Circuit courts. In these cases, plaintiffs were located in the TWA transit lounge the
Hellenikon Airport in Athens, Greece when two Palestinian terrorists had thrown three hand
grenades and fired small-arms fire into a group of passengers waiting in line for embarking to
board TWA Flight 881 to New York City61
. Both Second Circuit and Third Circuit courts held
the event was an “accident” under the Article 17 of the Warsaw Convention.

54
See Compagnie Nationale Air France v. Gilberto, 74 Ill. 2d 90 (N.E. Ill. 1978)
55
See Krystal v. British Overseas Airways Corp., 403 F. Supp. 1322, 1322-23 (C.D. Cal. 1975)
56
See Burnett v. Trans World Airlines, Inc., 368 F. Supp. 1152, 1153-54 (D.N.M. 1973)
57
See Husserl v. Swiss Air Transp. Co., 351 F. Supp. 702, 706-07 (S.D.N.Y. 1972)
58
See Pflug v. Egyptair Corp., 961 F.2d 26, 29 (2d Cir. 1992); See also Stanford v. Kuwait Airways Corp., 648 F.
Supp. 657, 660 n.4 (S.D.N.Y. 1986) and see Curley v. Am. Airlines,Inc., 846 F. Supp. 280, 283 (S.D.N.Y. 1994)
59
See Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 157 (3d Cir. 1977); see also Day v. Trans World
Airlines, Inc., 528 F.2d 31, 37-38 (2d Cir. 1975)
60
See Flying the Overly Friendly Skies: Expanding the Definition of a Warsaw Convention “Accident”, at 5
61
Id.


13
In Martinez Hernandez v. Air France62
, the plaintiff was injured while waiting in a baggage
retrieval area63
. Even if the First Circuit Court held “terrorist attacks are characteristic risks”64
,
the Court refused to hold “airline liable for senseless act committed outside airline's control”65
because, according to the court, the required “close logical nexus” between the air travel and the
injury was not met66
. In this case, there was no accident because the passenger was injured after
the operations of disembarking.
Terrorism events constitute always an accident. But a split between the Circuit Courts existed
about the temporal and geographical limits of the operations of embarking and disembarking to
know whether or not the terrorist attack is an “accident” under the Article 17 of the Warsaw
Convention. According to the Article 17 of the Warsaw Convention, the accident must “[take]
place on board the aircraft or in the course of any of the operations of embarking or
disembarking.” While in Evangelinos and Day developed a tripartite location test based on
activity, control and location67
, Martinez Hernandez relied upon close logical nexus between the
air travel and the injury”68
.
In both cases of hijacking or terrorism, the air carriers were considered as liable under the
Article 17 of the Warsaw Convention. Even if not directly centered on the word “accident”, this
split introduced the element of a preliminary debate around the enforcement of Article 17 of the
Warsaw Convention.
Finally, hijacking or terrorism are also really shocking experience for passengers. They can
suffer both physical and mental injuries. Naturally, some of them challenged the liability of air

62
Martinez Hernandez v. Air France, 545 F.2d 279 (1st Cir. 1976)
63
Id. at 281
64
Id. at 284
65
Id.

66
Id.
67
Id.

68
Id.


14
carriers to recover both from the physical injuries and the motional distress. The Court
unanimously agreed the recovery of mental anguish when it results from the bodily injuries (cf.
infra b.). However, when the recovery only concerned emotional distress, some courts were more
reluctant than other to allow such recovery under the Article 17.
b. The limited expansion of the term “accident” to the sole emotional distress
The question is here whether the Article 17 of the Warsaw Convention encompasses a claim
for emotional distress that does not result form a physical injury69
.
Several courts held that the Article 17 of the Warsaw Convention only applies to physical
injuries70
. For example, at the federal level, in Burnett v. Trans World Airlines, Inc.,71
passengers challenged the liability of the air carrier for recovery of both bodily injuries and
mental anguish suffered as a result of a hijacking72
. The District Court of New Mexico held that
“plaintiffs may recover in this action for any such emotional anxiety that they can demonstrate
resulted from a bodily injury suffered as a consequence of the hijacking.73
. However the Court
also held that “damages for mental anguish alone cannot be recovered under Article 17 of the
Warsaw Convention”74
.
Similarly, at the state level, in a case arising from mental anguish caused by a terrorist attack
and hijacking, the New York Court of Appeal in Rosman v. Trans World Airlines75
held that the
air carrier is only liable for “[passenger’s] palpable, objective bodily injuries, including those

69
Sheila Wallace Holmes, Recovery for Purely Mental Injuries Under the Warsaw Convention, 58 J. Air L. & Com.
1205, 1211 (1993)
70
See Rosman v. Trans World Airlines, 34 N.Y.2d 385 (1974); see also Burnett v. Trans World Airlines, Inc., 368
F.Supp. 1152 (D.N.M.1973).
71
368 F.Supp. 1152 (D.N.M.1973)

72
See Recovery for Purely Mental Injuries Under the Warsaw Convention, at 1212
73
See Brunett at 1158

74
Id.
75
34 N.Y.2d 385 (1974).


15
caused by the psychic trauma of the hijacking, [. . .] but not for the trauma as such or for the non
bodily or behavioral manifestations of that trauma”76
.
In contrast, some courts had a broader vision of “bodily injuries” and encompassed under the
Article 17 of the Warsaw Convention purely mental injuries. For instance, in Husserl v, Swiss
Air Transport Co.77
, the federal district court held that both mental and psychosomatic injuries
are “colorable within the ambit”78
of the Article 17 of the Warsaw Convention79
.
Several years later, in Flyod v. Eastern Airlines, Inc.80
, the Eleventh Circuit adopted a similar
position holding that the “terms of the Warsaw Convention must be construed broadly in order to
advance its goal of uniformity”81
. According to the court, this goal cannot be reached without
allowing “passenger [to] recover damages for mental injuries, whether or not accompanied by
physical injury”82
.
The debate between these two visions of Article 17 of the Warsaw Convention was solved by
the certiorari granted for the defendant in the Flyod’s case. In Eastern Airlines, Inc., v. Floyd,83
The Supreme Court “resolve[d] [the] conflict between the Eleventh Circuit’s decision [. . .] and
the New York Court of Appeal’s decision in [Rosman]”84
. Analyzing the French legal meaning
of “lésions corporelles” translated in English as “bodily injuries”, the Supreme Court found “ no
materials [. . .] indicating that “lésions corporelles” embraced psychic injury”85
. Subsequently, in
a unanimous opinion written by Justice Marshall, the Supreme Court held that the Article 17 of

76
Id.
at
400

77
Husserl v, Swiss Air Transport Co., 388 F.Supp. 1238, 1243 (S.D.N.Y. 1975).

78
Id.
at
1248

79
See Recovery for Purely Mental Injuries Under the Warsaw Convention, at 1212
80
Flyod v. Eastern Airlines, Inc., 872 F.2d 1462 (11th Cir. 1989)
81
Id. at 1480
82
Id.
83
Eastern Airlines, Inc., v. Floyd, 499 U.S. 530 (1991)

84
Id. at 534
85
Id. at 539


16
the Warsaw Convention does not encompass recovery for purely mental injuries and reversed the
Circuit Court’s decision86
.
Abroad the United States this position is not unanimously shared. For instance, in a Civil
Law country as France, a torts action permits to recover mental distress87
. But Common Law
countries, as Israel, have a similar approach than the one defended by the Supreme Court. The
court of Israel held that Article 17 does not allow recovery for purely psychic injuries88
in Cie
Air France v. Teichner89
.
If the decision of the Supreme Court ended the split existing, this debate by itself revealed
the first sign of turbulences about the meaning and the scope of the Article 17. The progressive
expansion brought the courts to consider on other cases than a crash or a disappearance of an
aircraft. In that circumstance, some court had dissenting opinions about what constitutes an
“accident”. In absence of a clear definition stated by the Warsaw Convention, the need for the
courts to rely on a definition came be to a more serious concern. The Supreme Court answered to
that need in Saks drawing its own a definition of the word “accident” in order to uniform the
upcoming court decisions.
B. The stated definition of “accident” by the Supreme Court or the express denial of
the absolute liability.
As noticed in cases of emotional distress, some courts continued to rely on the “absolute”
liability theory in the 1970’s while others were more reluctant. However, without any decision

86
See
Recovery for Purely Mental Injuries Under the Warsaw Convention, at 1213

87
Id. at 1214
88
Id. at 1217
89
39 Revue Française de Droit Aérien at 243, 23 Eur.Tr.L. at 102 (arising from hijacking and detention, which
allegedly caused psychic injury to passengers).


17
for a binding jurisdiction, the split was still remaining and expanded to other situations than
emotional distress. For instance, the case of Mrs. Saks, who suffered to become dear after a flight
from Paris to New York, addressed the issue of the liability of air carriers in case of passenger’s
own internal reaction.
To refrain this tendency, ensure an equal treatment of the rights of passengers injured upon
the courts in the United States, reassure the air carriers about the scope of their liability worried
about the financial impact of an “absolute” liability and provide a binding precedent, the
Supreme Court took the opportunity of the Saks case to set a clear definition of an “accident”
under the Article 17 of the Warsaw Convention.
The Supreme Court clearly rejected the “absolute” liability theory (1) but did not close
definitively the debate of what constitute an accident in giving flexibility to the court in applying
such definition (2).
1. The clear rejection of the absolute liability theory
Most of the cases arose prior Saks had a common characteristic90
: an unusual, unanticipated
incident as the immediate proximate cause of the injury91
. It implies naturally that an “accident”
can only be an abnormal event or abnormal happening92
. Based on that standard, some courts
found that air carrier could not be liable for a passenger’s internal reaction occurring during the
normal aircraft operation without an abnormality or malfunction causing the injury93
.

90
See Air France v. Saks: An Accidental Interpretation of the Warsaw Convention, at 206
91
Id.

92
Id.
93
Id. at 207 citing DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1196 (3rd Cir. 1978)


18
In Saks v. Air France94
, the Ninth Circuit, relying on the absolute liability theory, attempted
to change this standard95
. Rejecting the “unusual or unexpected happening”96
standard, the court
in its ruling held “that language, history and policy of the Warsaw Convention [. . .] impose
absolute liability on airlines for injuries proximately caused by the risk inherent in air travel”97
.
Such interpretation would encompass an unlimited number of situations under the meaning of
“accident” and would substantially broaden the scope of the word “accident”98
. Although really
favorable and protective for passengers this interpretation would endanger the air carriers of an
unlimited liability. In that sense, such definition does not comply with the spirit of the Warsaw
Convention limiting airline liability in order to protect the airline industry from disabling losses
99
. The balance of rights and liabilities between passengers and air carriers would be broken.
The Supreme Court ended the expansion of such hazardous theory in denying it expressly.
According to the Supreme Court, the “liability can […] be viewed as “absolute” only in the sense
that an airline cannot defend a claim on the ground that it took all necessary measures to avoid
the injury”100
. The Supreme held “when the injury indisputably results form the passenger ‘s own
internal reaction to the usual, normal and expected operation of the aircraft, it has not been
caused by an accident”101
provided in fact the elements of the definition of an “accident”.
According to the Supreme Court, an “accident” is an “unexpected unusual event that is external
to the passenger”102
.

94
Saks v. Air France, 724 F.2d 1383 (9th Cir. 1984)

95
See Air France v. Saks: An Accidental Interpretation of the Warsaw Convention, at 207

96
Saks v. Air France at 1383
97

98
99
Id. at 197 and cf. supra page 4
100
101
Id. at 406
102
Id. at 405


19
2. The flexibility of the definition of “accident”: the door open for an endless debate
However, this definition must be balanced with the flexibility given by the Supreme Court to
the lower courts to consider “assessment of all the circumstances surrounding [the] passenger
injury”103
. This flexibility allowed the lower courts to encompass several situations such as
terrorism and hijacking104
but also such as torts committed by passengers. Such definition let the
door open to a more extensive and broader interpretation of “accident” and a potential way back,
under news form, of the “absolute” liability.
II. The definition of the word “accident” after Air France v. Saks: from
a strict to a new from of absolute liability (1984 – 2004)?
During the years following the ruling of Saks, courts relied on the Supreme Court definition
of “accident” and the expansion was substantially but not totally limited (A). In several cases
courts denied to qualifies as “accident” some injuries suffered by passenger to the extent that the
event was “usual or expectable”. However, in Olympic Airways v. Husain105
, the Supreme Court
held that the air carrier is liable for the flight attendant’s failure to act. Such ruling encompassing
inaction as an event substantially expanded the scope of an “accident”106
and constituted a real
threat of a way back to an absolute liability (B).

103
Id.

104
Cf. supra page 12
105
540 U.S. 644 (2004) and cf. supra page 9.
106
See Thomas Adam Peters, Olympic Airways V. Husain: The United States Supreme Court Expands the Scope of
an “Accident” for Purposes of Article 17 of The Warsaw Convention and Consequently Contradicts its Application
of Multilateral International Treaty Interpretation, 31 Okla. City U. L. Rev. 193 (2006).


20
A. The limited definition of the term of “accident”: a fragile balance
In her opinion in Saks, Justice O’Connor provided a strict definition of the word
“accident”. Such definition was shared by many other jurisdictions, including France107
.
However the flexibly given to the lower courts allows them to encompass or denied events to be
“accidents” under the scope of the Article 17 could weaken this definition. A brief overview of
the cases following Saks proved the predominance of cases excluding events as “accident” in
particular involving the passenger ‘s own internal reaction (2) but some other cases encompassed
situations as “accident” in case another fellow passenger was involved (1).
1. Torts committed by a fellow co-passenger: exception to the strict liability theory.
The question is whether or not a damage caused by a passenger to another one during an
international flight is an “accident” under the Article 17 of the Warsaw Convention?
Some courts, prior of after Saks, considered that such event is an “accident” if the
passenger’s injury resulted from the other fellow passenger action. For instance, in Oliver v,
Scandinavian Airlines System108
, an intoxicated passenger fell and injured another one109
. The
court considered that such event is an “accident”.
More recently, in Wipranik v. Air Canada110
, a passenger alleged that she suffered second
and third degree burns from tea that spilled on her lap onboard a flight from Toronto, Canada to
Tel Aviv, Israel when a passenger shifted causing a cup of hot tea to slide off a tray and onto her
lap111
. The airline defendant moved for summary judgment. But the U.S. District Court for the

107
Cass. Civ 1ere, 14 juin 2007 – with no issue of translation of the Warsaw Convention because the official
language of the Convention is French.
108
Oliver v, Scandinavian Airlines System, 17 CCH Av.Cas. 18,283 (Md. 1983)
109
See Saks at 405
110
Wipranik v. Air Canada, 2007 WL 2441066 (C.D. Cal. May 15, 2007).
111
See, Jonathan E. DeMay, Recent Developments in Aviation Law, 73 J. Air L. & Com. 131, 215 (2008)


21
Central District of California denied defendant's motion for summary judgment, holding that
such event was “external” to the passenger and “unusual or unexpected” that tea would fall off
the tray table. Therefore, the conditions of the event satisfied the definition of accident set forth
by the Supreme Court112
.
The most relevant case of a tort committed by a passenger injuring another one, occurred
in Wallace v. Korean Air113
. In this case, Mrs. Wallace, passenger on board of international
flight operated by Korean Air Lines from Seoul, South Korea to Los Angeles, was sexually
assaulted during her sleep by the fellow passenger seated next to her. After she reported the
incident, she was reassigned to a new seat. Considering that “an accident cannot be limited to the
injuries resulting [only] from dangers exclusive to aviation”114
, the court held this event is an
“accident”.
Some academics considered that Wallace expanded airline’s liability to include events
occurring on board of aircraft115
and required a clearer definition of accident to avoid confusion
over Article 17 of the Warsaw Convention and co-passenger torts aboard aircraft116
.
Finally, the experience of Mrs. Wallace was particularly shocking and may cause her an
emotional distress or mental injury. Mostly considered as internal own reaction of the passenger
if not in connection with bodily injuries, such damages is an illustration of damages excluded of
the term of “accident” because there are not “external” to the passenger.

112
Id.

113
Wallace v. Korean Air, 214 F.3d, 293 (2nd Cir. 2000)
114
Id. at 299
115
See Davis L. Wright, Flying the Overly Friendly Skies: Expanding the Definition of a Warsaw Convention
“Accident”, 19 No. 5 Andrews Aviation Litig. Rep 1, 10 (2001)
116
Id.


22
2. The principle of the strict liability in cases involving passenger ‘s own internal
reaction
Some events are not “accident” according to the definition set forth the Supreme Court in
Saks. Emotional distress was a source of split between courts. But the Supreme Court decision in
Eastern Airlines, Inc., v. Floyd117
ended the split and held emotional distress by itself does not
constitute an accident118
.

There are at least two other assumptions in which the courts held that the requirements of
the definition of “accident” are not met: (a) in case of Deep Vein Thrombosis (DVT) syndrome
and (b) in case of pre-existing medical condition.
(a) The DVT syndrome
Also well known as the “economic class syndrome”, the DVT is a situation blood clots
are formed in the legs due to be seated in a cramped position for a long period of time119
. In
some rare cases, this manifestation can cause deeper injuries such as stroke, heart attack,
paralysis or death120
. Some survey demonstrated than up to 10 percent of passengers can be more
or less affected in flight by this syndrome.
This reaction can be caused during the operation, not necessarily abnormal, of the
aircraft. But the court are reluctant to admit DVT as an “accident” as it is principally a
passenger’s own internal reaction.

117
499 U.S. 530 (1991)
118
cf. supra p 15 citing Eastern Airlines, Inc., v. Floyd
119
See Stephen Dempsey, Accidents & Injuries in the Air Law: the Clash of the Titans, (2008) at *6
120
Id.


23
In Blansett v. Continental121
, a passenger challenged the airline’s liability under the
Article 17 suffering after a flight from Houston to London of “an episode of DVT resulting in a
cerebral stroke that left [the passenger] permanently debilitated”122
. The Fifth Circuit held that
“the failure to warn of DVT is a departure from an industry standard of care”123
but refused to
“create a per se rule that any a departure from an industry standard of care must be an
“accident”.124
The Ninth Circuit adopted a similar analysis125
in Blotteaux v. Qantas Airways126
holding
that “no evidence has been presented that anything unusual occurred aboard [. . .] or that [the
passenger’s] development of DVT was triggered by anything other than his own internal reaction
to the prolonged sitting activity [. . .]”127
. Similarly, foreign jurisdictions as the United
Kingdom128
and Canada129
adopted the same rationale about DVT.
(b) The pre-existing medical condition
For the same reason than DVT, courts were reluctant to allow the qualification of
“accident” when a pre-existing medical condition is the only cause. For Instance, in Abramson
v. Japan Airlines130
, the Third Circuit had to decide whether or not a refusal of assistance by the
crewmember to reassign a passenger to another class of travel aggravating the passenger’s injury
constituted an “accident”. In this case, a passenger was suffering from a para esophageal hiatal

121
Blansett v. Continental Airlines, 379 F.3d 177 (5th Cir., 2004)
122
Id. at 178
123
Id. at 181
124
Id. at 182
125
See, Accidents & Injuries in the Air Law: the Clash of the Titans, at *12
126
Id. and see Blotteaux v. Qantas Airways, 171 Fed. Appx. 566 (9th Cir. 2006)
127
Id.
128
In re Deep Vein Thrombosis and Air Travel Group Litigation, UKHL 72, 2005, 1 AC 495 (2005)
129
McDonald v. Korean Air, O.J. 3655 (2002); Ben Tovim v. British Airways, O.J. 3027 (2006)
130
Abramson v. Japan Airlines, 739 F.2d 130 (3rd Cir. 1984); see also Accidents & Injuries in the Air Law: the
Clash of the Titans, at *5


24
hernia. Flying in coach from Anchorage to Tokyo, her wife asked to seat him in first class in
order fro him to lay down. Even if there were several empty seat in first class, the crewmember
denied proceeding to assign them in first class seats. The court held that the “aggravation of a
pre-existing injury during the course of a routine and normal flight should not be considered as
an “accident” within Article 17”131
.
The Eleventh Circuit adopted a similar position in Krys v. Lufthansa German Airlines132
,
a case in which a passenger suffered a heart attack during a flight from Miami to Frankfurt. The
court concluded that “the aggravation injury was not caused by an “unusual or unexpected event
or happening that is external to the [passenger] [. . .] and therefore did not constitute an accident
within the meaning of the Warsaw Convention”133
.
The courts clear stated that an aggravating factor, because internal to the passenger, does
not constitute by itself an “accident” within Article 17. However, what about when the pre-
existing medical condition is aggravated by another factor? The Supreme Court answered this
question in Husain134
in a surprising rationale.
B. Olympic Airways v. Husain or the emergence of a new form of absolute liability
In Husain, an asthmatic and fragile passenger was seated only three rows ahead the smoking
section. Allergic to the second-hand smoke, the wife’s passenger asked three times without any
success to reassign his husband to another seat less exposed to smoke. The passenger died on
board. The Supreme Court concluded that the death of the passenger was an “accident” because

131
Id. at 133; Id.
132
Krys v. Lufthansa German Airlines, 119 F.3d 1515 (11th Cir. 1997)
133
Id. at 1522; See also Accidents & Injuries in the Air Law: the Clash of the Titans, at *4
134
Olympic Airways v. Husain, 540 U.S. 646 (2004)


25
the refusal of the crewmember to reassign the passenger to another seat was an inaction, part of
the “chain of cause” which aggravated the medical condition of the passenger. This ruling
procures a revisited version of the definition of “accident” (1) and was subsequently the source
of many controversies (2).
1. The revisited version of “accident” by Husain’s ruling
Husain expanded the definition of “accident” set forth by the Supreme Court in Saks.
New elements are now included such as the pre-existing medical condition as an aggravated
factor. As a remind, this sole element was constantly rejected previously135
.
First at all, the Supreme Court considered that an event of happening “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”136
.
But more surprising, the Supreme Court also held that “the distinction between action and
inaction, [. . .] would perhaps be relevant were this a tort law negligence case”137
. In other word,
the Supreme Court considered as irrelevant the consideration of an action or inaction. In that
circumstance, the event causing the “accident” could be also a non-event. Such position seriously
weakens the definition of an accident set forth and can allow encompassing a substantial number
of situations under the Article 17 liability. The absolute liability was on its way back…
Further cases, relied on Husain and produce different result than it was previously. For
instance, in similar cases than Krys, when a passenger suffered of heart attack, the air carriers
defendant moved to a summary judgment on the ground that the heart attack was caused by the
passenger’s own internal reaction. Motions for summary judgment were dismissed because the

135
Cf. supra page 23
136
See Husain at 653
137
Id. at 654


26
failure of the crewmember to adhere to operational standard, rules and policies for medical
emergencies aggravated the pre-existing medical condition of the passenger138
.
2. Husain’s ruling: a source of several controversies
The rationale in Husain was a source of controversy at different stages. This ruling was a
source of strong dissent inside the Supreme Court itself and it diverges from the approach taken
by foreign jurisdictions.
Often joining the opinion written by each other, in this case Justice Thomas who wrote
the majority opinion, and Justice Scalia, who wrote the dissent, disagreed. This is one of the rare
cases of disagreement between these two conservative members of the Supreme Court.
Less anecdotic, Justice O’Connor who wrote the opinion of Air France v. Saks joined the
dissent of Justice Scalia. According to Justices O’Connor and Scalia, the wording of the Article
17 of the Warsaw Convent involved in any case an event that requires an action to be done. To
support their position, they relied on “sister signatories” courts decisions.
For instance, English and Australian courts clearly disagreed with the Husain’s ruling. In
re Deep Vein Thrombosis and Air Travel Group Litigation139
, Lord Scott criticized the Supreme
Court decision saying that “it is not the function of the court in any of the Convention countries
to try to produce in language different from that used in the Convention”140
and that a “judicial
formulation of the characteristics of an article 17 accident should not [. . .] ever be treated as a
substitute for the language used in the Convention”141
. Another judge in this case, Lord Philips
was almost clearer in his opinion and held he “cannot see, however, how inaction itself can ever

138
See Recent Developments in Aviation Law, at 217 citing Watts v. American Airlines, Inc., 2007 WL 3019344
(S.D.Ind 2007) and Fulop v. Malev Hungarian Airlines, 175 F.Supp 2d 651 (S.D.N.Y. 2001)
139
UKHL 72, 2005, 1 AC 495 (2005)
140
See Accidents & Injuries in the Air Law: the Clash of the Titans, at *10
141
Id.


27
properly be described as an accident”142
. For Lord Phillips, “it is not an event, it is a non
event”143
. The Supreme Court of Victoria in Australia adopted a similar position in Povey v.
Qantas Airways144
.
Hence, abroad and within the United States, the decision in Husain was source of debate.
If the most moderate saw this decision as a “full circle”145
, other considered such decision
constituted a “flawed jurisprudential methodology”146
.
CONCLUSION
Husain opened a new period of debate about the definition of “accident”. It is clear than
such ruling could be viewed as a threat to a way back of the absolute liability theory under a new
form. In a context where airlines are certainly bigger in size but are faced to difficulties to be
profitable, a threat of the way back to an absolute liability will not help the market. Husain
dramatically affected the definition of an “accident” which legally became meaningless and back
to the fog in what it was prior Saks’s definition. On a passenger’s point of view, Husain
reassured them of a plain recovery after the limitations set by Saks and the following decisions.
Between Saks and Husain, the court tried now to preserve the fragile balance between the rights
of the passenger and the limited liability of the air carriers. In absence of a new and clear
decision from the Supreme Court, the definition of “accident” will probably look to be more and
more like an endless journey.

142
See Husain dissent opinion at 659
143
Id.

144
Povey v. Qantas Airways, M167, 2005 HCA 33 (2005)
145
Domenica DiGiacomo, The End of an Evolution: From Air France v. Saks to Olympic Airways v. Husain – The
Term “Accident” under Article 17 of the Warsaw Convention Has come Full Circle, 16 Pace Int’l L. Rev. 409,
(2004)
146
See, Accidents & Injuries in the Air Law: the Clash of the Titans, at *10

Aviation Law Paper_Fordham Spring 2013_J Courtey Fevrier

Empfohlen

Empfohlen

Weitere ähnliche Inhalte

Was ist angesagt?

Was ist angesagt? (18)

Ähnlich wie Aviation Law Paper_Fordham Spring 2013_J Courtey Fevrier

Ähnlich wie Aviation Law Paper_Fordham Spring 2013_J Courtey Fevrier (20)

Aviation Law Paper_Fordham Spring 2013_J Courtey Fevrier