ElDial.com - 1º diario jurídico Argentino en Internet

The Supreme Court of the United States has recently addressed the issue of whether the word "accident" within article 17 of the Warsaw Convention 1929 was satisfied by an air carrier's unusual and unexpected refusal to assist a passenger in a medical crisis. The effect of that refusal aggravated a pre-existing medical condition of the passenger which ultimately caused his death.

The Warsaw Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by air craft performed by an air transport undertaking (Article 1). This case illustrates the approach of the English, American and Australian courts towards the interpretation of the Convention and may act as a guide to other jurisdictions when insurers seek to rely on so-called 'established principles' of interpretation.

In December 1997, Dr Hanson travelled with his wife and children and another family from San Francisco to Athens and Cairo for a holiday. Dr Hanson suffered from asthma and was particularly sensitive to inhaled cigarette smoke. On hearing that Olympic Airlines allowed its passengers to smoke on international flights, he and his wife requested and obtained seats in the non-smoking section of the aircraft. Although Dr Hanson experienced no problems on his outward journey, after boarding the aircraft for his return journey to San Francisco he discovered that his seat was located three rows in front of the economy class smoking section. This was despite the fact that Dr Hanson and his wife had arrived early at Cairo airport in order to request non-smoking seats, and his wife had shown the check-in agent a doctor's letter explaining that Dr Hanson had a history of recurrent anaphylactic reactions.

On two occasions before the flight departed, Dr Hanson's wife asked a flight attendant to move Dr Hanson. The flight attendant declined to assist Dr Hanson and his wife stating that the plane was "totally full" and that she was "too busy" to help. In fact, the flight was actually not full and there were 11 unoccupied passenger seats, most of which were in economy class. There were also 28 non-revenue passengers, 15 of whom were seated in economy class rows further away from the smoking section of the aircraft than Dr Hanson's seat. Shortly after the aircraft took off, Dr Hanson's wife asked for Dr Hanson to be moved for a third time but the flight assistant responded by stating that Dr Hanson would have to ask another passenger to change seats with him and that she would not assist Dr Hanson in this regard. As the level of ambient cigarette smoke increased in the rows behind Dr Hanson, he walked towards the front of the plane to get fresher air and whilst standing in the aisle he collapsed and died. His widow, Mrs Husain, sued the airline.

At first instance, the US District Court found Olympic Airways liable for Dr Hanson's death. Under article 17 of the Warsaw Convention 1929, an air carrier is liable for a passenger's death or bodily injury caused by an "accident" occurring on an international flight. The Supreme Court in Air France v Saks 470 US 392 (1985) established that the meaning of the word "accident" in the Convention refers to an "unexpected or unusual event or happening that is external to the passenger" and not to "the passenger's own internal reaction to the usual, normal and expected operation of the aircraft". This definition has been followed extensively.

Following the Saks definition of the word "accident" within article 17 of the Convention, the US District Court held that the flight attendant's conduct had been external to Dr Hanson and the failure to move him was not expected or usual since it constituted a blatant disregard of industry standards and Olympic’s own policy. The airline appealed to the US Courts of Appeal and subsequently to the US Supreme Court.

Although neither party contested the definition of "accident" as stated in Saks, they disagreed as to which event should be regarded as the ‘focus of the accident inquiry’. In the absence of any definition of the word "accident" in the Convention itself, the Supreme Court considered that its reasoning in Saks was useful in determining whether the flight attendant's refusal to assist Dr Hanson was the proper ‘focus of the accident inquiry’. In this regard, the Supreme Court found as follows:

1. Article 17 focused on the accident which caused the passenger's injury and not on an accident which is the passenger's injury. Accordingly, it is the cause of the injury rather than the occurrence of the injury that has to satisfy the definition of "accident" for the purposes of the Convention.

2. There is a responsibility on the courts of contracting states to the Convention to read the Convention in a manner which is consistent with the shared expectations of other contracting parties to the Convention and therefore to adopt the generally accepted definition of the cause of an injury as a "fortuitous, unexpected, unusual, or unintended event".

3. The definition of "accident" should be determined flexibly after assessment of all the circumstances surrounding the passenger's injuries; and include, for example, intentional conduct as well as unintentional conduct.

4. Article 17 embraced causes of injuries that are unexpected or unusual and was not limited to only one event. It encompasses an injury which is the product of a chain of causes provided that the plaintiff can prove that some link in that chain of causation was an unusual or unexpected event external to the passenger.

The airline argued that because it allowed smoking on its international flights, Dr Hanson's death resulted from his own internal reaction, namely, an asthma attack, to the normal operation of the aircraft. It also argued that the word "accident" under article 17 of the Convention required a positive action causing injury and that since in this case the flight attendant's failure to move Dr Hanson amounted to an inaction, article 17 did not apply.

The US Supreme Court disagreed with Olympic's argument. It was wrong to focus on the ambient cigarette smoke in the passenger cabin as the cause of Dr Hanson's death. Although the presence of the cigarette smoke in the aircraft's passenger cabin may have been normal at the time of the flight in question, the airline had failed to appreciate that there are often multiple inter-related factual events which combine to cause an injury. Any one of these factual events or happenings could be a link in the chain of causation and constitute an "accident" under article 17 of the Convention, provided that it was unusual or unexpected. On the facts of the Husain case, the Supreme Court held that Dr Hanson's exposure to the ambient cigarette smoke and the flight attendant’s refusal to assist Dr Hanson were happenings that had both contributed to his death.

Furthermore, the Supreme Court held that the flight attendant's conduct had been unexpected and unusual in light of industry standards, the airline's normal policy and the simple nature of the request that Dr Hanson’s wife had made for her husband to be moved. The Supreme Court also disagreed with the airline's argument that the flight attendant's failure to act could not constitute an accident because only positive acts are events or happenings under the Saks definition of “accident”. The relevant “accident” inquiry under Saks was whether there was an unexpected event or happening. The rejection of an explicit request for assistance was an event or happening under the ordinary and usual definitions of these terms. The Supreme Court also noted that other provisions of the Convention, such as articles 20[1] and 25[2], suggested that there is no distinction between action and inaction when interpreting Convention provisions.

Justice Thomas, delivering the majority opinion of the US Supreme Court, affirmed the judgments of the US District Court and Courts of Appeal concluding that the airline's conduct constituted an “accident” under article 17 of the Warsaw Convention.

It is interesting to note that Justice Thomas did not consider their decision to be inconsistent with the earlier decisions of the English Court of Appeal in the Deep Vein Thrombosis and Air Travel Group Litigation [2003] EWCA Civ 1005 or the Australian Court of Appeal in Qantas Limited v Povey [2003] VSCA 227 as the Justices in those cases concluded that the facts of Husain constituted an "accident" within the meaning of the Convention. These two cases concerned claims against some of the world's leading airlines for failing to warn of the risk of DVT and/or to advise on precautions which would avoid or minimise this risk. In neither instance was the inaction complained about held to be an “accident” under article 17. In the Deep Vein Thrombosis and Air Travel Litigation, the English Court of Appeal reconciled the Husain decision as not being one of inertia by the flight attendant but part of a complex incident whereby Dr Hanson was exposed to smoke in circumstances that were unusual and unexpected. The Australian Court of Appeal agreed with the reasoning of the English Court of Appeal.

Justice Thomas stated that to the extent that the reasoning of the majority in Husain was inconsistent with the reasoning of the English and Australian Courts of Appeal (in that an omission could constitute an event or happening for the purpose of proving an “accident” under article 17) he rejected the analysis of those courts and was hesitant to follow the opinions of intermediate appellate courts where the respective courts of last resort (ie the House of Lords in England and the High Court in Australia) had yet to speak.

Justice Scalia, with whom Justice O'Connor agreed, delivered a strong dissenting judgment criticising the majority decision for failing to give any serious consideration to how the courts of the other signatory countries to the Convention had resolved similar legal issues.

Whilst Justice Scalia did not take issue with the finding of the majority, he preferred the reasoning of the English Court of Appeal that the repeated refusals to move Dr Hanson were part of a more complex incident whereby Dr Hanson was exposed to smoke in circumstances that could properly be described as unusual and unexpected. He also noted that a proper enquiry had not been made (and expert evidence had not been adduced) as to the airline and industry policy which applies to reseating a passenger while still on the ground waiting to take-off as opposed to when the aircraft is in flight.

Justice Scalia added that whether inaction could constitute an “accident” under article 17 was one which required international consensus. The fact that the flight attendant explicitly refused Dr Hanson’s pleas for help after the third request, rather than simply ignoring them, did not transform her inaction into action and could not therefore be the basis for liability under article 17. However, he left open the question of whether the flight attendant's misrepresentation that the aircraft was full was unusual and unexpected and could reasonably be said to have caused Dr Hanson's death.

This is clearly an unsatisfactory judgment for airlines (and their insurers) since, despite the US Supreme Court’s protestations, the Husain decision appears to fly in the face of the established principle that inaction or an omission by an air carrier cannot form the basis of a finding of an “accident” under article 17 of the Warsaw Convention. The claimants in the Deep Vein Thrombosis and Air Travel Group Litigation have won the right to take their case to the House of Lords and will, no doubt, rely on the US Supreme Court ruling in Husain. There are therefore two issues on which commentators on aviation law now await: whether the judgment of the House of Lords will "extend" the Convention in England to include inaction or omission by a carrier and the extent to which the House of Lords will publicly defend the honour of its Court of Appeal. These developments may be significant to the interpretation of the Convention in other countries.

[1] After a plaintiff has established a prima facie case of liability under article 17, the air carrier has the opportunity to prove under article 20 that it took “…all necessary measures to avoid the damage or that it was impossible for [the airline] to take such measures” (our emphasis) (ie the air carrier can seek to establish lack of negligence under article 20)

[2] At the time when the facts of the current case took place in 1997, article 25 provided that article 22’s liability cap on the amount recoverable under article 17 in the event of death or bodily injury did not apply in the event of “…wilful misconduct or…such default on [the carrier’s] part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct” (emphasis added). It is to be noted that the Montreal Protocol Number 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air (1975) amends article 25 by replacing “wilful misconduct” with the words “…done with intent to cause damage or recklessly and with knowledge that damage would probably result, as long as the airline’s employee or agent was acing within the scope of his employment”.