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)

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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.


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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


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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.


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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.


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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.


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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


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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


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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.


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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


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


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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.


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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.


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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).


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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


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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).


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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)


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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 Air France v. Saks, at 396 98 See, Air France v. Saks: An Accidental Interpretation of the Warsaw Convention, at 208 99 Id. at 197 and cf. supra page 4 100 Air France v. Saks, at 407 101 Id. at 406 102 Id. at 405


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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).


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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)


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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.


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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.


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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


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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)


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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


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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.


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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

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