Olympic Airways v. Husain – Oral Argument – November 12, 2003

Media for Olympic Airways v. Husain

Audio Transcription for Opinion Announcement – February 24, 2004 in Olympic Airways v. Husain

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William H. Rehnquist:

We’ll hear argument next in No. 02-1348, Olympic Airways v. Rubina Husain.

Mr. Harakas.

Am I pronouncing your name correctly?

Andrew J. Harakas:

Yes, Your Honor.

Mr. Chief Justice, and may it please the Court:

Over 70 years ago, the drafters of the Warsaw Convention created a treaty which set forth the circumstances under which air carrier liability should be created in the event of passenger injury or death.

The legal regime they created recognized there’s circumstances where the passenger should be entitled to a cause of action, but it also expressly recognized the need to limit that liability and set forth certain conditions when that limited liability would apply.

Article 17 of the Warsaw Convention creates a presumption of liability but only when three conditions precedent are satisfied.

One, there has to be an accident in which the passenger suffers a bodily injury or dies and the accident took place on board the aircraft or during the course of embarking or disembarking.

The issue before the Court here today… we’re dealing with the accident condition precedent.

Was that satisfied in this case?

Of course, the… the Court in Saks in 1985 specifically addressed the issue of what is an accident, and the Court defined an accident as an unusual and unexpected event that’s external to the passenger.

Of a particular importance to this case is where the Court declined to extend the accident and encompass an injury that results from the passenger’s own internal condition and… and in response to the normal and expected operations of the aircraft.

Thus, until recently, the courts have held that injuries arising out of the passenger’s preexisting medical conditions do not satisfy the accident condition precedent even if there were allegations of air carrier negligence.

David H. Souter:

I take it you don’t take the position that… that, let’s say, any death resulting in part as a result of one, but not the only, cause of the preexisting conditions is thereby excluded from the… the class of liability.

Andrew J. Harakas:

I think you have… Justice…

David H. Souter:

Every… in other words, having a heart condition does not immunize Olympic Airlines against liability if somebody dies of a heart attack per se.

You’re not taking that position.

Andrew J. Harakas:

Our position is that if somebody is on board an aircraft and they die of a heart attack, that is… that is not an… that’s a… the passenger’s own internal reaction and it just happened to be… the passengers happened to be on board the aircraft.

David H. Souter:

Sure, if… if they’re simply sitting in the seat and nothing unusual happens and they have a heart attack and die, sure, there’s no liability.

But if there are other conditions… and the argument here is that there are other conditions… and the heart attack was merely a contributing cause… it was a condition upon which those other conditions acted… that does not… the existence of a heart condition does not immunize Olympic Airlines against liability.

That’s… I don’t think that’s your argument, is it?

Andrew J. Harakas:

Well, no.

What the argument is… and in this case here, you have to look to what is the injury-producing event?

The injury-producing event here…

David H. Souter:

And… and they say the injury-producing event is… or one of the… the analyses is the unexpected refusal of the airline personnel to allow this individual to get moved into a smoke-free zone.

And that unusual and unexpected event, combined with the smoke and the heart condition, caused the death.

But it was the unexpected refusal to remove from a smoke zone that is the unexpected event or occurrence that is the accident.

What is your answer to that?

Andrew J. Harakas:

I respectfully disagree with the characterization, which was adopted by the court below, in that in this case you have to… you… you can’t just simply look to the fact that you had the flight attendant saying we’re not going to move you.

Andrew J. Harakas:

He was assigned a non-smoking seat.

He…

David H. Souter:

He was assigned a non-smoking seat which happened to be in a zone with smoke.

Andrew J. Harakas:

Well, in… on board any aircraft, when smoking is allowed, you have ambient cigarette smoke throughout the aircraft, and in this case you have to look to… it can’t be disputed that this passenger reacted to the cigarette smoke and the injury-producing event indirect…

Ruth Bader Ginsburg:

But less in… less in row 15 than in row 48.

Andrew J. Harakas:

That’s… that’s correct, Justice Ginsburg.

However, when you have… when you… in any aircraft when you… when they used to allow smoking on the aircraft, as at this time, you could be 10 rows away and you would still be exposed to that ambient cigarette smoke.

But the point we have to look to is with respect to the Warsaw Convention is what type of liability did they want to create.

You know, when we get into issues of straying away from the direct cause… because when we look to almost every single Warsaw Convention accident case, the focus has always been on what is that direct injury-producing event.

When we start inserting common law concepts of…

David H. Souter:

Well, you say direct, are… are you trying to make the… the act omission distinction?

Andrew J. Harakas:

Well, the act and… in one respect, but… but in the broader sense, you have to look to is what has always been the event the courts have looked to, what did the drafters intend the event… the… the cause to be?

It’s not… I don’t think it’s proper to inject full-blown common law notions of proximate causation.

David H. Souter:

No… no one is… no one is making the common… I don’t think is making the common law argument here.

They’re saying it was unexpected as a matter of fact that somebody who wanted a… a smokeless seat, who found there was smoke in the area of the seat and who was asked to be moved, would be refused by the airline.

That is the unexpected event.

Andrew J. Harakas:

But… but that’s what courts have done after the Supreme Court’s decision here by the Court in Tseng because at that time, before Tseng, courts used to find that it didn’t matter whether you had allegations of true negligence because we do have to look to…

David H. Souter:

The… the point is the allegations are not of negligence, which is a legal and normative conclusion.

Andrew J. Harakas:

Yes.

David H. Souter:

The allegation is simply, as a matter of fact, it is not to be expected that a stewardess would stand there and say, no, you can’t move him.

Whether it was negligent or not negligent, it simply was unexpected as a matter of fact, and they’re saying that satisfies the unexpected event.

Andrew J. Harakas:

I… I disagree.

I don’t think that satisfies the unexpected event.

Sandra Day O’Connor:

Well, it could and it is different from ordinary negligence.

I mean, it is conceivable at least that to have an airline stewardess say no when the policy of the airline and the standard generally is to the contrary and to say, no, I will not consider moving you even though there were seats further away from the smoke origin.

Andrew J. Harakas:

I don’t believe in the… for purposes of the article 17 accident analysis, you… you… your… you should or should be allowed or it’s proper to go beyond looking to asking what is that injury-producing event.

In this instance here, we have to remember too that, yes, there were three requests to be moved.

However, the passenger himself never asked to be moved.

It was always through his wife.

He was a doctor.

Andrew J. Harakas:

He knew his own condition.

I mean, we can all get into the whole reasonableness issue, but what happened…

David H. Souter:

Which… which is a matter of defense.

Sandra Day O’Connor:

Yes.

Andrew J. Harakas:

Yes, it’s a matter of defense.

David H. Souter:

But Justice O’Connor’s question and my question is… is the question that goes to whether you get into court to defend.

And you’re… you’re giving us a… an argument that, in effect, we weren’t negligent.

Andrew J. Harakas:

No.

David H. Souter:

But our questions were wasn’t it unexpected in fact that somebody would be in the position that this passenger was in.

Andrew J. Harakas:

I don’t… well, I think that’s where the courts below and where you get… where you can cross the lines and confuse the concepts of negligence and causation in this case because here you could say was it unusual, unexpected for a… for a… when a passenger makes a request to be moved.

In a certain sense, yes, you could say that it was… it could unusual, unexpected, but I think you have to come back to is but is that the injury-producing event.

And that’s what the courts look to.

William H. Rehnquist:

Were there other seats available in the economy section?

Andrew J. Harakas:

There were other seats available, Chief Justice.

William H. Rehnquist:

In the economy section?

Andrew J. Harakas:

In the economy seat section.

I think when you… it was very difficult to determine because the plane was… there were approximately 11 seats.

Some of those 11 seats were in the smoking section, but the…

Ruth Bader Ginsburg:

And in addition, there were the no-revenue people who could have been asked to leave.

Andrew J. Harakas:

There were the non-revenue people, but when you look to the record, the only way you could determine the non-revenue people… in fact, we had to submit post-trial submissions after the trial to… for somebody to testify to interpret the codes that were on the passenger manifest to determine who were revenue and who were non-revenue.

Antonin Scalia:

This doesn’t have anything to do with the case, does it?

Andrew J. Harakas:

No, it doesn’t, Your Honor.

It doesn’t have…

Antonin Scalia:

So what are we talking about it for?

I mean, it… it… the issue before us is not negligence.

Andrew J. Harakas:

It’s not…

Antonin Scalia:

The issue before us is whether it was an accident.

Andrew J. Harakas:

Exactly.

It is whether it was an accident.

John Paul Stevens:

May I ask this question?

John Paul Stevens:

I know you didn’t argue about negligence, but you do seem to draw a distinction between affirmative conduct on the one hand and failure to act on the other hand.

And my question to you is, supposing that without asking the stewardess, the passenger had gotten into a… a non-smoking seat seven or eight rows ahead of where he was sitting and then was ordered to return to his seat.

Would that have been an accident?

Andrew J. Harakas:

Under the circumstances, no, I don’t think under… for purposes of the Warsaw Convention, that would have been an accident.

John Paul Stevens:

That would have been.

Andrew J. Harakas:

It would not have been an accident.

John Paul Stevens:

It would not have been.

Andrew J. Harakas:

Because again, the injury…

John Paul Stevens:

So then… then you don’t rely on a distinction for the action and non-action.

Andrew J. Harakas:

Well, because… well, I do rely on the distinction between action and non-action because you could have an omission which in and of itself cannot be an accident.

I… I really gave a lot of thought to this.

I looked at the cases and I could never find a pure omission being an accident.

A omission can result in an accident.

Ruth Bader Ginsburg:

Well, why is this a pure omission?

It seems to me she misrepresented that the plane was full twice when that wasn’t true.

That doesn’t sound like an omission to me.

She told the wife to sit down.

She… well, how do you treat that she was supposed to report such incidents to her supervisor and she didn’t do that?

Andrew J. Harakas:

The… the bottom line of the allegations here were that the… the flight attendant should have taken action to move Mr…. Dr. Hanson to another seat, and failure to do so would be…

And part of what… part of what she had…

in itself an omission.

Ruth Bader Ginsburg:

Part of the picture is things that she affirmatively did do, and part are things she didn’t do.

And I don’t understand that the law makes a distinction between doing what one should not have done or not doing what one should have done.

Andrew J. Harakas:

Generally in… under negligence law… under negligence law a negligence can be an act or omission.

But here, when you’re looking to the treaty of an accident defined as an unusual, unexpected event or happening, you basically have a non-event, something that did not happen.

You… you see that I think in the…

John Paul Stevens:

Yes, but you… you say you wouldn’t draw the distinction I suggested.

So assume the case was the other way around, that the stewardess told him to get back to his seat.

Now, why would that not be an accident?

Andrew J. Harakas:

Because at that point, when he got back to his seat, he would be back to his normal assigned non-smoking seat.

Andrew J. Harakas:

While in close proximity to the smoking section, again, you have to see that smoke on a smoking aircraft, a known smoking aircraft, nobody… you know, there was no surprise here when he got on board on this aircraft that there was a… there was going to be smoke on this aircraft… is not an unusual, unexpected event.

John Paul Stevens:

But I want to be sure I understand your position.

If the stewardess had gone to the captain of the plane and said, we’ve got a guy in the back seat who said he’s going to die because he can’t stand smoke, he wants to sit in the front seat, and he’s grabbed a seat up there, should I order him back to the old seat, and the captain says, yes, send him back, would that be an accident?

Andrew J. Harakas:

Under the Warsaw Convention, I don’t think it would be an accident, and here’s why.

It… these are extreme examples that… with respect to that where… the passenger in this case… don’t forget too, the flight attendant did give the option to this passenger to move.

He could have taken self-help to remedy the situation, but he opted not to.

But in those type of situations, you have instances where they’re very extreme examples, but… and the convention doesn’t necessarily provide a remedy for all those types of situations.

Anthony M. Kennedy:

I… I take it… I take it you think… is it Abramson in the Third Circuit where they… the… the passenger can’t lie… lie down.

Andrew J. Harakas:

Exactly, Justice Kennedy.

Anthony M. Kennedy:

You take the position that case is wrong?

Andrew J. Harakas:

No.

That… that position… that case is… is 100 percent correct and it’s very analogous to our case because in the Abramson…

Anthony M. Kennedy:

That’s… that’s… it seems to me there’s an accident in that case.

Andrew J. Harakas:

In that case, the… the court of appeals found there was not an accident.

Anthony M. Kennedy:

I understand, but it seems to me that there is.

Andrew J. Harakas:

Well, Abramson followed the… almost the exact criteria set forth by the Court in Saks.

Was it an unusual, unexpected event?

And they found that being seated in an aircraft seat… you’re assigned an aircraft seat… is not… and sustaining an injury due to your own internal reaction was not an accident because they, again, focused on what was the precise factual event that led to the injury.

Anthony M. Kennedy:

Of course, there it seems to me that the… the internal cause is… is much greater than it… it is here.

Let… let’s… can we take the case on the assumption… I think we must take the case on the assumption, based on the… on the findings of the district court, that if they had moved the passenger, the event would not have occurred.

Andrew J. Harakas:

We have to…

Anthony M. Kennedy:

Now…

Andrew J. Harakas:

Yes.

We have to take…

Anthony M. Kennedy:

if we take the case on that assumption, it’s… it seems to me it’s got to be an accident.

Andrew J. Harakas:

I disagree, Justice Kennedy, because again, I… I just come back to when I was looking at all the cases and looking at the treaty and the text of the convention, you always do have to look to the injury-producing event because the text of the treaty says an accident which causes the damage.

And I think it does come down to showing what is the direct event.

I think when you look at the Krys case, I think the Court… the Eleventh Circuit in Krys clearly set forth, I think, a very workable standard.

They say let’s look at the… we ask let’s look at the precise event.

We look at what were the precise events that caused this injury, not the actions of the air carrier that they could have taken to avert that injury.

Sandra Day O’Connor:

But was it determined here that the passenger died from smoke exposure?

Andrew J. Harakas:

There was at the… there was a… a legal finding that it was the smoke that killed the passenger even though…

Sandra Day O’Connor:

And do we take the case on that understanding?

Andrew J. Harakas:

You would have to take the case on the understanding because we didn’t raise the factual issue that he would have died from the food poisoning.

Sandra Day O’Connor:

And is it the case that there would have been seats possibly available more removed from the smoke so that it wouldn’t have been as heavy an exposure to smoke?

Andrew J. Harakas:

I don’t… I don’t think there was any evidence to establish the concentrations of the cigarette smoke.

There were seats that were further removed, but then you come down to, again, factual issues or determinations as to, well, how far do you remove the passenger.

Is three further rows further ahead, five rows further ahead enough?

Sandra Day O’Connor:

But here there was a total refusal to…

Andrew J. Harakas:

There was a… well, there was a…

Sandra Day O’Connor:

to provide any help.

Andrew J. Harakas:

There was a refusal to… there was a refusal to move him because the flight attendant believed the flight was full, and it was, other than the 10 seats.

But the… the flight attendant did give this passenger the option to reseat himself.

William H. Rehnquist:

Well, you… you say you have to consider just very precisely what caused the injury.

What is your view here of what caused the injury?

Andrew J. Harakas:

What caused the injury was his exposure to the cigarette smoke under the facts of this case and on the findings.

And then we have to determine was cigarette smoke in that area, ambient cigarette smoke, unusual, unexpected, and even the lower court found that cigarette smoke on a smoking aircraft is not an unusual, unexpected event.

John Paul Stevens:

When you say the… the airline gave the passenger the option to reseat himself, wasn’t it the option to… to request another passenger to change seats with him?

Andrew J. Harakas:

To change seats with him.

John Paul Stevens:

Yes.

Andrew J. Harakas:

Or he could have… what the… or he could have moved through the cabin to see if he could locate an empty seat.

But mind you, the flight attendant never had any direct communications with Dr. Hanson.

It was always through his wife.

There were two requests made to move on initial boarding.

William H. Rehnquist:

Well, but does that make… does that make any difference in… in this case, the fact that his wife was speaking for him?

Andrew J. Harakas:

No.

I mean, it would have made a difference in the lower court as to the issue of reasonableness and things like that, but for purpose of the legal issue before the Court, no, it doesn’t make a difference because, again, when you look at… when you look at all the various cases, when you come through Krys, Abramson, and the other pre-Tseng cases… and I draw that distinction before Tseng… the courts universally had held that a passenger’s injury arising out of his own internal reaction to the conditions on the aircraft is not an accident.

And when you look to the history of the convention itself, here the lower courts, in effect… while we say they didn’t use negligence, they, in effect, imported concepts of negligence, reasonableness, reasonable alternatives, things like that, those types of concepts.

Ruth Bader Ginsburg:

How about other courts?

I mean, we do look to see what our treaty partners do in this area.

Ruth Bader Ginsburg:

The two other courts that were cited in the brief that addressed this question seem to agree with the decision of the Ninth Circuit in this case.

Andrew J. Harakas:

Yes.

Yes, Justice Ginsburg.

The one court was an Australian court in Povi, a lower court case, which that case has been appealed and argued on appeal.

And that case… that was in the DVT context.

I think that court suffered from the same fundamental errors that the courts here below did in viewing what the…

Ruth Bader Ginsburg:

What about the court of appeals in England…

Andrew J. Harakas:

that…

Ruth Bader Ginsburg:

that disagreed on the… on the… whatever that…

Andrew J. Harakas:

Yes, the DVT litigation.

Ruth Bader Ginsburg:

Disagreed on that, but did say, went out of its way to say, it thought that this case was the right way to go about it.

Andrew J. Harakas:

Well, the… on the DVT litigation case, the court found that… he disagreed with the reasoning of the lower courts, but he said that he could certainly understand the result.

But he was, again, focusing in on the facts because if you applied the…

Antonin Scalia:

Well, that’s surely dictum anyway.

I mean…

Andrew J. Harakas:

Yes, well…

Antonin Scalia:

the dictum in that case that… that he thought that this case came out right below.

We wouldn’t even… we wouldn’t even give dispositive effect to our own dictum much less to the dictum of a court of appeals in England.

Andrew J. Harakas:

You’re… you’re right, Justice Scalia.

It was dicta.

And what happened was in that case, I think he had a misperception of the facts at the end of the day, and if you applied the rationale that he used for his opinion in dismissing those cases, the facts of this case would inevitably lead to the dismissal of this case and a finding of no accident.

Ruth Bader Ginsburg:

I don’t think so, having read his decision and the other members of the court of appeals.

David H. Souter:

What was Lord Phillips’ misperception?

Andrew J. Harakas:

As to the enforced exposure to the cigarette smoke because… because the passenger here was given the option to relocate, and he could have relocated himself.

David H. Souter:

The option being… the option being the one that was mentioned a moment ago.

Your husband can get up and try to get somebody else to move?

Andrew J. Harakas:

Switch or find another… one of the available empty seats.

Because then you also have to remember, again, I… well, I don’t want to get into the…

Ruth Bader Ginsburg:

She… she said positively there are no empty seats.

The… the option that was given to the wife was that you go ask another passenger to switch seats.

Andrew J. Harakas:

Sure, because… because at the time, you know, there were only 11 empty seats, and she said that the plane is full.

And that… and that’s at the time of boarding as well, in the middle of boarding.

It’s a flight that had been delayed for 3 hours.

Everybody is coming on board the plane.

Ruth Bader Ginsburg:

But by the time the second and third inquiries were asked, it should have been evident that there were empty seats.

Andrew J. Harakas:

Well, the… the second inquiry was just before… shortly before takeoff on… on a flight delayed for 3 hours, and they’re trying to take off, and she says, I can’t help you right now.

And one thing… and then the third one was shortly after takeoff.

William H. Rehnquist:

Well, but the… I wouldn’t think they allowed smoking before takeoff.

Andrew J. Harakas:

No, they did not allow smoking before takeoff.

It wasn’t until the third incident shortly after takeoff when smoking was allowed, and then she said, can you please move my husband now?

And the request was denied.

But I think with… with respect to the whole accident inquiry issue here, we also have to look to, when you start bringing in the definition of what is an accident, when you start equating with issues of negligence and common law, I think we go astray and go contrary to what the drafters intended as to what the Court here in Tseng held, that you don’t… accident is not a common law concept.

It’s a self-contained…

Ruth Bader Ginsburg:

If Tseng had held nothing on this point, in fact, it… it said that the Second Circuit’s conclusion that that wasn’t an accident was doubtful.

In Tseng, it was an academic question.

What barred her from getting recovery under the treaty was she didn’t suffer from a physical injury or from a psychological injury with… with physical manifestations.

She didn’t die and she didn’t have the kind of injury that would qualify.

Tseng… I think you are quite wrong in saying that that decision passed on the concept of accident.

Andrew J. Harakas:

No.

I agree with you, Justice Ginsburg.

I may have misspoke because you’re absolutely right.

There was only that one footnote that… where the Court did express concern as to whether the court in the Second Circuit flexibly applied the Tseng decision.

But I was talking about the… what I meant was the broader context of Tseng with respect to importation or allowing a parallel state cause of action in light of the exclusivity of the convention and the uniformity principles set forth in the convention.

And if you start importing concepts of negligence back into the convention… because, in effect, what the courts are doing below is they’re saying, fine, we can’t go to State law, but what we’ll do is we’ll… we’ll define an accident to make it equivalent to a negligence cause of action.

So there’s really no difference.

What the courts are doing is nullifying the exclusivity holding by equating any act of negligence as an accident.

William H. Rehnquist:

But are… are you saying here that the court of appeals really wrote an opinion about… in negligence and saying that’s an accident?

Andrew J. Harakas:

When you read the… the language of the court of appeals, it’s… it’s pure negligence language.

William H. Rehnquist:

But… but it seems to me whatever you think about what the flight attendant did, it… it can’t be classed as negligence here.

It was a refusal to do something.

Andrew J. Harakas:

It was a refusal.

It was a… it was a… in my view, it was an omission, and I think at… when you take omissions and put it in the context of what is… is that an unusual, unexpected event, that an omission cannot in and of itself be the accident.

Sandra Day O’Connor:

I don’t know if we really have to get into the act versus omission question here because this was more than that.

It was a refusal to take action in the face of an alleged severe medical problem and in… in contravention to the rules of the airline at the time.

So you could characterize this, I think, as some kind of positive action, in effect.

Andrew J. Harakas:

Well, I… when I think of an event, I think of some type of positive action, and in this instance, when… when I look at a refusal to do something, I look at it as… as an omission.

But even if you did look at it as a positive event here, Justice O’Connor, I think you… although… everything leads us back to trying to identify was the event that caused the injury here unusual, unexpected.

And that… there’s only one injury-producing event.

For example, let’s say nobody asked the airline in this case to move Dr. Hanson.

There was no request made, and he remained in his non-smoking seat.

Sandra Day O’Connor:

No request made?

I thought the wife made a request.

Andrew J. Harakas:

I’m sorry.

Sandra Day O’Connor:

Excuse me.

Andrew J. Harakas:

A hypothetical.

Sandra Day O’Connor:

Oh.

Andrew J. Harakas:

Let’s assume no request had been made, and he would have remained in that same non-smoking seat and he would have died because of the exposure to the ambient cigarette smoke, according to plaintiffs’ theory.

What would be the injury-producing event there?

What caused that death?

His internal reaction to the cigarette smoke, the normal… which was normal and expected.

Now, the fact that they asked… somebody asked for him to be moved doesn’t change the injury-producing event.

The injury-producing event is the same.

It’s the exposure to the cigarette smoke.

Sandra Day O’Connor:

Well, but of course, the exposure might have been substantially reduced if the passenger had been able to get seated in an area further removed from the active smokers.

Andrew J. Harakas:

There… he still would have had… there still would have been ambient cigarette smoke throughout the cabin, as we all well know.

Anthony M. Kennedy:

Well, suppose there were five rows of empty seats in front and a… a stewardess… and there are stewardesses like this sometimes that we don’t people wandering around the plane.

We’re serving food.

You must sit down in your seat.

A different case?

Andrew J. Harakas:

No, not a different case because you are assigned to your assigned seat, and again, it’s one of those extreme examples that if I believed there were five empty rows here, he probably would have gotten up and found it himself.

Andrew J. Harakas:

But in that case, I don’t feel there would be a different case because, again, I… I focus in on this injury-producing event here, and the injury-producing event is the exposure to cigarette smoke which was normal and expected.

Anthony M. Kennedy:

So your… your submission is if the airline requires you to sit in the no-smoking seat for no particularly good reason, there’s still no accident.

Andrew J. Harakas:

Oh, I… I disagree on that one because if they required you to sit in a non-smoking seat and you had…

Anthony M. Kennedy:

Well, that was my hypothetical.

Andrew J. Harakas:

Okay.

If they… if you… if they require you to sit in a smoking section?

Anthony M. Kennedy:

No.

One… just one… one row ahead.

Andrew J. Harakas:

There would be no difference in the situation from this… from our scenario.

There still would not be an accident.

He was assigned a non-smoking seat and you… again, you look to was his own internal reaction here to the normal and expected operation of the aircraft.

And I think when… when you look at the convention, the structure of the convention, and what they had in mind by the term accident, you have to… you can only come back to that one basic conclusion, that you look to what is that injury-producing event.

I’d like just to reserve the remaining… my time for rebuttal if there are no further questions.

William H. Rehnquist:

Very well, Mr. Harakas.

Mr. Farr, we’ll hear from you.

H. Bartow Farr, III:

Mr. Chief Justice, and may it please the Court:

There are basically two reasons why we think that article 17 imposes liability when an airline knowingly leaves a passenger in medical jeopardy without taking basic measures to alleviate the harm.

First, because that kind of action violates normal industry safety practices and thus, under Saks…

Sandra Day O’Connor:

Well, that’s the question.

You assume it.

You say that kind of accident.

Well, I think that’s the issue.

Is it an accident?

H. Bartow Farr, III:

I’m sorry if I said that kind of… I meant to say that kind of action under Saks is contrary to… to the normal industry safety practices.

Antonin Scalia:

Let me ask about Saks.

It’s… it seems to me that the fallacy in the argument that… that you… you run and that the Government runs is that it accepts the language of Saks as the totality of what is necessary to be an accident.

Now, Saks involved a fellow who had some problem with his ear which was… caused him harm because of the normal depressor… pressurization of the… of the cockpit.

And in denying relief under the… under the convention, the Court says, no, that wasn’t an accident because the cockpits are pressurized all the time, and if it… it has… to be an accident, it has to be an unexpected or unusual event or happening.

Okay.

Saks was not saying that that is a sufficient condition to be an accident.

Antonin Scalia:

It was just saying that that is a necessary condition.

Now, let me… let me give… give you a hypothetical and you tell me why… why this would be an accident.

It seems to me the hypothetical closely parallels what happened here.

A man hurls himself into the sea intending to commit suicide.

There is right nearby to where he hurled himself into the sea a dock with 30 people on it and 30 life preservers at their feet, and not a single one of them picks up the life preserver and throws it to the drowning man.

I don’t know why.

Maybe they’re 30 libertarians who think people should be able to kill themselves.

Whatever.

[Laughter]

Antonin Scalia:

Certainly… certainly an unexpected and unusual event.

Who would imagine that with 30 life preservers within reach of the man, nobody would throw one.

Now, would anybody in his right mind say that this man died because of an accident?

Of course, not.

Unexpected and unanticipated is a… a necessary condition for… for saying that something was caused by an accident, but it’s surely not a sufficient condition.

And it seems to me what happened in this plane is exactly like that.

It is an event after the person was endangered.

I… I don’t think that this person died because of an accident.

It just doesn’t make it.

And that’s the language of the convention, not Saks.

H. Bartow Farr, III:

Well, Justice Scalia, it seems to me that… that the point that you’re making, which in one sense I think is a correct one, is that the language of… of article 17, if one looks at it in purely colloquial terms, may not exactly correspond with the definition in Saks.

But the language in article 17 isn’t used… the term accident isn’t used purely in the colloquial sense.

What we know from the context of the convention as a whole and the liability system as a whole and from Saks is that sometimes it actually captures less than the colloquial sense of the term accident, sometimes it’s more.

For example, the mere fact that somebody has a heart attack typically would be, in the colloquial sense, thought of as an accident.

But we’ve learned from Saks that it is not itself going to be considered the accident because of the context of article 17 and the… the language about accidents causing death or bodily injury.

By the same token, the deliberate refusal to help somebody, as the Chief Justice pointed out in his… his earlier question I think, is… is normally, in colloquial terms, not thought of as an accident.

It’s not inadvertent.

It’s deliberate.

But we know under article 17 that deliberate conduct can, in fact, be an accident.

If a flight strikes a passenger in the face or throws coffee on the passenger in a fit of rage, that is an accident for purposes of article 17.

Antonin Scalia:

I’m willing to say that negligent conduct such as occurred here can be an accident.

Antonin Scalia:

Of course, it can.

If… if the flight attendant spills some hot liquid on the passenger causing the passenger to be scalded, of course, that… that’s an accident.

H. Bartow Farr, III:

Well, Justice Scalia…

Antonin Scalia:

That fits the normal… the normal concept of accident.

H. Bartow Farr, III:

Of course, but… but…

Antonin Scalia:

What happened here does not fit the normal description of accident.

H. Bartow Farr, III:

But my example is not a… an accidental spilling.

I’m… I’m actually talking about it just to try to get at the colloquial sense, which I think is what disturbs you, that… that if… if in fact the… the flight attendant purposely throws the coffee on the passenger, just become irritated with the passenger, that would not normally be thought of as an accident, if you’re asking people around the coffee shop whether there’s been an accident.

But in terms of article 17, it is an accident because we know article 17 covers instances of willful misconduct.

Article 17 is the gateway by which you get to any liability, and willful misconduct includes certainly the kinds of… of things that I’m talking about, deliberate conduct.

Sandra Day O’Connor:

Can this be said to be that kind of conduct where it’s contrary to the policy of the airline?

H. Bartow Farr, III:

Yes, it can, Justice O’Connor.

I mean, one of the things that’s a little bit curious in… in tying the two questions together with Justice Scalia’s question, this is a… this is an incident which in fact is to some extent intentional.

Sandra Day O’Connor:

Yes.

H. Bartow Farr, III:

I mean, the… it was not inadvertent that… that the passenger was left in his seat.

For example, just… just to take a different, slightly changed analogy, if in fact the passenger had… had asked to be moved in… out of the vicinity of the smoke, and the flight attendant had said, let me wait until everybody is seated, I’ll come back and get you in half an hour, and she forgot to do that, that would actually in colloquial terms seem more like an accident.

Somehow negligently she forgot to come back.

But in fact, in this particular case, she was asked three times and knowing in fact what she was doing, she said, no, I’m not going to move you.

Anthony M. Kennedy:

What if she… what if she’d been asked to move him, and she said I’ll be back, and then another passenger gets very ill and she has to take care of him right away, and then the facts are the same.

Accident there?

H. Bartow Farr, III:

The question then I think… the… the proper way to answer that, Justice Kennedy, is to look at what would happen in the normal flight under the normal circumstances.

Obviously, under the circumstances we had here, it’s unusual and unexpected that she didn’t move him.

If in fact the reason was that there was some other enormous problem on the plane and all of the flight attendants had to deal with that particular problem, then it seems to me the… the action here would not be unusual and unexpected.

Sandra Day O’Connor:

Well, that’s…

William H. Rehnquist:

Your… you stated in your opening that the airline’s conduct here was contrary to industry policy, and I think Justice O’Connor premised an earlier question on saying it was against the policy of… of this particular airline.

Spell that out a little, will you?

What was the policy of… of the airline and why did this action violate it?

H. Bartow Farr, III:

The policy of the airline and the policy generally, because I think they’re in this case the same…

William H. Rehnquist:

They’re the same.

H. Bartow Farr, III:

was when a passenger requests a move for medical reasons, that the policy is to accommodate that request if it’s possible to do so.

H. Bartow Farr, III:

And it was possible here because there were empty seats in the coach cabin, so we don’t have to get into the complicated questions of whether you have to move someone to first class or to… to alleviate the problem.

William H. Rehnquist:

Would… would it have been any more or less of an accident if that practice had not prevailed in the industry?

H. Bartow Farr, III:

I think it’s possible that it would.

I mean, I… our position is not that essentially the industry can give itself immunity by lowering its standards so much that… that acts that… that clearly are unusual, but nonetheless within the… the industry standard are… are immune from liability.

But I think the general idea is in trying to evaluate things that aren’t obviously accidents, we have to have some sort of benchmark to judge whether what’s happened is unusual.

The natural place is to look… is… is at the industry practice.

And if in fact what they’ve done is consistent with industry practice, I would think in the usual case certainly that would suggest there hasn’t been an unusual event.

Sandra Day O’Connor:

Well, but it was unusual here.

H. Bartow Farr, III:

Absolutely.

Sandra Day O’Connor:

So why isn’t this an accident in the same sense that having an attendant throw hot coffee on a passenger would be?

H. Bartow Farr, III:

It is.

William H. Rehnquist:

Supposing the airline’s defense to throwing hot coffee on the passenger said our stewardesses do that all the time.

[Laughter]

William H. Rehnquist:

There’s unexpected about it.

H. Bartow Farr, III:

I mean, the… the fact is as I say, that I don’t think that necessarily having a very low standard in the company itself or in the industry will, in fact, give you immunity, although I have to say I think that in fact that’s an unlikely thing to happen because when we talk about the Warsaw Convention, there’s a natural…

John Paul Stevens:

Mr. Farr, can I interrupt for a second?

It seems to me that in the question of whether you move a passenger or not, you could have a situation which for security reasons, as they have around Washington, every passenger must remain in his or her… her seat for 500 miles or 30 minutes or so, and refusal to move during that period could not possibly be an accident.

H. Bartow Farr, III:

That’s correct, Justice Stevens.

I think… but… but the analysis would be the same.

I mean, one of the instructions that Saks gives, I think correctly, is that you have to look at all the circumstances.

What is unusual or unexpected under certain circumstances would not be unusual or expected… unexpected under other circumstances like the one…

Anthony M. Kennedy:

What… what role does fault play?

It… it seemed to me, as I was reading the Ninth Circuit opinion in Saks, that negligence is probably not a requisite.

I don’t know if that makes it necessary for us to send it back.

Suppose we think that’s true.

Would we send it back to the court of appeals and say, no, no, negligence is… is not the standard, go ahead and find fault on their… or whether or not there’s an accident under some other standard?

H. Bartow Farr, III:

Justice Kennedy, I… I don’t think that’s necessary.

I mean, what the Ninth Circuit basically said was this is an unusual or unexpected event under Saks because it violates industry policies, industry standards, the company policy, and particularly given the nature of the request.

If the Ninth Circuit had stopped there, it seems to me that their decision would be absolutely correct.

Sandra Day O’Connor:

Well, it didn’t.

Sandra Day O’Connor:

It went on and got a bunch of negligence language in there.

H. Bartow Farr, III:

Well, it’s the following sentence that obviously raises at least some questions.

And I should say I’m not sure that… that language in itself should be as troubling as it perhaps appears to some because the… the situations that… that the court describes there very often will be, it seems to me, unusual or unexpected situations.

But nonetheless, it seems to me that… that following the adage that the Court sits to review judgments and not opinions, that the Court can simply say, as we… we suggest would be sufficient, that you do have an unusual and unexpected event when you fail to help a passenger in violation of the standard industry practice.

Now, if the standard industry practice would be not to help a passenger under certain circumstances and the claim is still made that it’s unusual or unexpected, one would need another benchmark for reference, but the Court doesn’t need to reach that in this case.

Now, I would like to… to also point out that in… in… when we’re talking about the language of… of article 17, while I think it’s… it’s proper to… to focus on the language itself and discuss it in… in the context of Saks, that it’s also I think proper to look at the context of the convention as a whole and whether, in fact, competing interpretations of the term accident would lead to absurd consequences.

Here I think if in fact the definition or the application of the definition that Olympic tries to… to urge on the Court is accepted, that one is going to find that… that this convention, which is intended to be the exclusive means of remedy for passengers who suffer death or bodily injury on an international flight, is… is going to have essentially a hole in it where it doesn’t cover situations even, as in this case, whether it’s willful misconduct by the airline crew that causes the injury.

And the focus that… you know, in terms of whether that is a reasonable understanding to attribute to the parties to the convention under the circumstances, it seems to me when you… when you say a positive act would be an accident, an omission that would cause an accident would be… you know, would… would involve an accident, but there’s liability whatsoever for situations in which the… the conduct itself is the contributing factor, the failure to do something is the… is a strong contributing factor, doesn’t really make any reasonable sense as a construction, and particularly because one of the things that the… the parties must have understood is that during the time that the passenger is… is covered by article 17, if you will, from the time of embarkation to the time of disembarkation, the passenger is largely in the control of the airline.

The airline determines where the passenger sits.

So the passenger’s opportunities to engage in self-help are greatly reduced.

And in that situation, the idea that the… that the parties thought that airlines could simply say we have passengers on our plane who need our help for medical reasons, and we’re not going to provide any help whatsoever and that either causes greater injury… causes injury in the first place, causes greater injury, or in an unhappy case like this one, actually causes a death, their theory would say there’s still no liability.

And it would seem to me you would need a very, very clear indication from the text, which doesn’t exist here, to reach that result.

William H. Rehnquist:

Well, what if someone suffered, say, a heart attack on the plane and it was 3 hours from its destination and the doctor there said, you know, you’ve really got to… in… in order to avoid this guy probably dying, you’re going to have to land somewhere en route?

Now, would an airline be obligated to do that in order to avoid this sort of accident?

H. Bartow Farr, III:

It depends on the circumstances, but I think the general industry practice would be, in fact, that an airline would be… would… would normally divert to a nearer airport in fact to… to save the… the passenger from death or from much more severe injury.

That in a sense is the Krys case, the Eleventh Circuit case, that Olympic says is in conflict with the decision in this case.

That was a case in which the Eleventh Circuit said, well, the… the failure to divert, which it… it was agreed would… would have made a significant difference to the passenger’s health, was not unusual because the plane just did the normal thing.

It just flew to its regular destination.

But the problem with Krys is that if you look at all the circumstances, as Saks says, it’s not the normal thing just to fly on to your intended destination when a passenger has had a heart attack and the medical indication…

William H. Rehnquist:

Well, then… then you’re saying basically it depends on airline practice whether something is expected or unexpected and whether it’s the normal practice.

H. Bartow Farr, III:

In this context.

I mean, obviously, sometimes it’s… it’s… if… if the context is the… the failure to help a passenger in… in medical distress, then it seems to me that the usual practice of… of the airline or the industry in general is… is the proper benchmark, at least initially, for determining whether something is usual or unusual.

Now, obviously, there are other kinds of accidents, crashes and hijackings and all, where… where common knowledge tells you what happened is unusual, but where common knowledge doesn’t necessarily tell you the answer, then it does seem that reference to industry standards is a useful benchmark.

John Paul Stevens:

Would you comment on the distinction between an event and an accident?

H. Bartow Farr, III:

Well, the event is under… under Saks… I mean, the difference is that an accident has to be an unusual event, that not every event is an accident.

You have to demonstrate that it’s unusual, and… and much of what we’ve talked about this morning, obviously, is… is why this would be unusual by reference to industry standards.

But an event, if one looks at a dictionary definition, is simply something that happened on the plane.

John Paul Stevens:

I think it would affect the liability for loss of baggage and so forth.

That’s triggered by an event, as I understand it.

H. Bartow Farr, III:

That’s correct.

H. Bartow Farr, III:

It is now.

It was at one time triggered by an occurrence, and under the 1999 Montreal Convention it’s triggered by an event.

Yes.

Anthony M. Kennedy:

Do you think the Abramson case in the Third Circuit was properly decided?

H. Bartow Farr, III:

I don’t… I am not sure the result was wrong.

I don’t think the approach was correct.

I think the court should have asked what the usual industry practice would have been in that case, and if the usual industry practice would have been to make an accommodation along the lines that… that the passenger requested, then I think that might have well have been an accident.

I think it’s a… it’s a difficult question as to whether that would have been true because that particular passenger needed to be moved into first class, needed two first class seats, and in fact part of the solution was he was perhaps going to introduce self-induced vomiting as a cure, which obviously would affect other passengers in the cabin.

So, you know, on the facts, one ultimately might have said… the… the judgment that was made there actually comported with… with the usual industry standards.

However, we don’t know the answer because the Third Circuit didn’t ask the right question.

Ruth Bader Ginsburg:

But you do think the Eleventh Circuit Krys case was wrong in both reasoning and result.

H. Bartow Farr, III:

Well, Krys… we have an additional piece of information because the court went on to decide the case.

This was pre Tseng.

So it actually decided the case as a common law negligence case, and when it did so, it found that what the airline had done by not diverting in that particular case was a violation of industry standards.

So in that case I think what should have happened in Krys is that the court should have made that inquiry as part of the Warsaw Convention analysis, and if it had done so in fact, it would have limited the recovery in Krys, which was many millions of dollars, to the limits of the Warsaw Convention, supplemented by the agreements.

If the Court has no further questions, thank you.

William H. Rehnquist:

Thank you, Mr. Farr.

Ms. McDowell, we’ll hear from you.

Barbara B. McDowell:

Mr. Chief Justice, and may it please the Court:

A flight attendant’s refusal to assist an ill passenger can amount to an accident within the meaning of the Warsaw Convention.

The analysis focuses on whether such conduct is, objectively speaking, unusual or unexpected, taking into account the ordinary practices in the industry and other indicia of what would be expected in the circumstances.

At a minimum it’s reasonable to construe the convention’s term accident, as the United States construes it, to encompass the aberrant conduct of the flight crew, and this Court has ordinarily accorded weight to the United States’ reasonable construction of treaties to which it is a party.

Our reading of the term accident comports with the text structure and purposes of the convention.

The term is a broad and inclusive one.

It’s not confined to crashes or explosions or equipment failures.

As the Court recognized in Saks, it can encompass a wide array of unusual and unexpected events external to the passenger potentially…

William H. Rehnquist:

Ms. McDowell…

Barbara B. McDowell:

Yes.

John Paul Stevens:

assuming that it could have happened somehow in an airline context, would you say that Justice Scalia’s hypothetical was an accident?

Barbara B. McDowell:

I think that a failure of an airline employee to come to the assistance of a passenger can, indeed, be an accident.

Barbara B. McDowell:

One must recall that even under the common law, common carriers such as airlines have been understood to have special obligations toward their passengers, not expansive obligations to act as physicians to them, but to provide reasonable first aid until they reach the destination.

So I think that… that this particular context is… is quite different from the context when one is dealing with just a bystander.

And I think under the common law as well, there have been other situations that might well be viewed as accidents that involved omissions when one is under a duty to act.

Antonin Scalia:

Okay.

Let’s say it wasn’t a bystander.

Let’s say that, you know, they were… they were relatives.

They’re the parents of… of the person who jumped.

You still wouldn’t call that an accident, would you?

Does it have anything to do with… with whether there’s a duty or not?

Some States do impose a duty on… on bystanders, by the way, and let’s assume that happens in a State where there is a duty.

Barbara B. McDowell:

Well, I think the inquiry here…

Antonin Scalia:

You still wouldn’t call it an accident, I don’t think.

I mean, nobody would use the English language that way.

Barbara B. McDowell:

Well, I think here under the Warsaw Convention, the term accident has been understood to refer to an unusual, unexpected event.

Antonin Scalia:

Okay.

David H. Souter:

But wouldn’t you… Warsaw Convention or not, wouldn’t you call it an accident if the bystanders had put up an advertisement saying, swim with us for $500, and then they stood there?

Barbara B. McDowell:

Yes, that would… that would seem to be an accident.

David H. Souter:

That would get a little closer to our situation, wouldn’t it?

And that…

Barbara B. McDowell:

Yes, Your Honor.

David H. Souter:

and that might well be an accident.

Barbara B. McDowell:

Other circumstances… medical malpractice cases, for example, might be those where an omission of some sort, because the doctor is under a duty to act, could be viewed as an accident.

For example, a failure to diagnose or to treat a particular medical condition until it’s too late, if that was negligent, could be an accident.

Anthony M. Kennedy:

Would… would you say that we ought to write the opinion so that if there is negligence, that is evidence that normal airline practices were not being followed, and that’s an accident?

So that negligence is important to the analysis, not necessary, but it… it can be helpful.

Barbara B. McDowell:

We would say that…

Anthony M. Kennedy:

Or… or should we write the opinion without talking about negligence?

Barbara B. McDowell:

We would say that the test is objective reasonableness which connotes some of the same concepts as negligence does in the common law.

William H. Rehnquist:

Well, how does… how does that differ from… from the common law at all?

If you say objective reasonableness, you’re really just changing accident into common law negligence, aren’t you?

Barbara B. McDowell:

Well, not in all circumstances because negligence isn’t a necessary condition for an accident to occur.

An accident could be an act of God and an event that did not involve negligence.

In this particular case, yes, the inquiry into due care and the inquiry into an… whether an accident has occurred are quite similar, but they’re still focused on a different question.

The accident inquiry asks whether something unusual or unexpected has happened, and the due care inquiry under article 20 asks whether the airline has acted with due care.

Anthony M. Kennedy:

Well, negligence is a proxy for the fact that normal airline operating rules were not being followed.

Barbara B. McDowell:

Correct.

Now, there may be isolated instances where although ordinary practices were being followed, those practices were so deficient that, nonetheless, an accident might be found.

Normally, however, I think that… that airlines’ practices are to treat passengers reasonably.

So I think that asking the reasonableness question would be the same as… as seeing whether there was a deviation from standard policies and practices.

In construing the…

Antonin Scalia:

You know, I think there may be a public policy reason for construing accident contrary to its normal meaning to embrace in this context intentional acts whether by the airline employees or by pirates or… or terrorists or anybody else.

But I don’t… I… there… there’s a problem in my mind about interpreting it to… to embrace especially negligent omissions.

It seems to me that’s so far away from the normal meaning of accident that I don’t… I don’t see the justification for doing it especially where it converts the convention into essentially what it was not intended to be, liability for negligence.

That…

Barbara B. McDowell:

Well, of course, in this case we don’t have a mere negligent omission.

We have what the district court found to be willful misconduct.

We also found… this case also involves a… a refusal to act, a series of refusals to act, and… and provision of misinformation about whether the flight was completely full or not.

So it’s… it’s difficult to characterize this particular case…

Antonin Scalia:

No, the misinformation didn’t bear any causality.

I mean, the… the… what caused the injury here was… was not the misrepresentation about the other seats.

It was simply the failure to move the person to another seat, and that is totally an… an omission, it seems to me.

Barbara B. McDowell:

I don’t think it’s properly characterized as an omission when there were three increasingly desperate requests to reseat the passenger and the flight attendant responded on each occasion…

Antonin Scalia:

I take it back.

Three… three omissions.

Barbara B. McDowell:

I think that this sort of case can be contrasted, for example, from a… a simple failure to warn case where the question is whether an airline should have warned about a particular medical condition that a passenger might have in response to ordinary flight.

This seems to involve much more.

Certainly Lord Phillips in the English court of appeals thought that this case involved much more than… than just a failure to act.

The drafters of the Warsaw Convention certainly didn’t intend that airlines would be insurers for any harm that befell a passenger during flight.

They did intend, however, that airlines would be held liable when their own fault caused a passenger’s death or bodily injury.

Indeed, they eliminated the caps on damages in cases when that fault rose to the level of willful misconduct.

Barbara B. McDowell:

This would seem doubtful that the drafters intended simply by their choice of the term accident to exempt airlines entirely from liability in cases where passengers died or suffered bodily injury because of the airline’s fault, including willful misconduct in this case.

John Paul Stevens:

Well, is airline’s fault even required?

Supposing that before the plane took off, there was a big fire in the area and smoke filled the… filled the aircraft while it was on the runway and then he died from that smoke, would that be an accident?

Barbara B. McDowell:

It could well be an accident, Your Honor.

It might not be an accident for which liability would… would be properly…

Antonin Scalia:

Why wouldn’t it be?

John Paul Stevens:

There’s going to be an accident within the meaning of the convention is what I’m asking you.

Barbara B. McDowell:

Yes, it probably would.

John Paul Stevens:

So then the smoke doesn’t have… the… the… whatever the accidental cause is, it doesn’t have to be fault of the airline.

Barbara B. McDowell:

That’s correct because the airlines have the opportunity under article 20 of the convention to come back and say that we cannot be held responsible for this accident because we did not act negligently.

The understanding…

Antonin Scalia:

I thought they had to show more than that.

I thought they had to show that they did everything possible to prevent… to prevent the…

Barbara B. McDowell:

Well, the term in the treaty is all necessary measures.

Antonin Scalia:

Yes.

Barbara B. McDowell:

But it’s been construed to mean all reasonable measures.

So it’s essentially been understood as a… a due care defense.

And that’s reinforced in the Montreal Convention, the new convention that has just come into force, that… that uses the term negligence in its own words.

The understanding that the accident requirement can be satisfied in cases like this one serves the convention’s purpose of balancing the interests of air carriers and passengers.

Such cases do not pose a threat of particularly expansive liability to airlines.

Cases such as this one where air carriers do something that is unusual and unexpected and thereby cause a passenger’s death or bodily injury can be expected to remain relatively few under the convention, as they are under U.S. domestic law.

Imposing liability, meanwhile, enables passengers and their families to receive some measure of compensation for their injuries and provides appropriate incentives for airline supervision and… and training of their personnel.

For all of these reasons, we’d ask the judgment of the court of appeals be affirmed.

William H. Rehnquist:

Thank you, Ms. McDowell.

Mr. Harakas, you have 3 minutes remaining.

Andrew J. Harakas:

Mr. Chief Justice, I think when you… when you look at the arguments that were made both by the respondents and the Solicitor General, it all comes back to the issue of negligence, wanting to equate an accident with negligence.

The Warsaw Convention wasn’t an all-encompassing treaty.

There were certain holes left in the convention where there wasn’t going to be recovery.

For example, if there’s no bodily injury, there’s no recovery under the Warsaw Convention, as set forth by the Floyd decision, no matter, let’s say, how egregious the air carrier’s conduct may have been.

It set forth certain things, and the convention wanted to define the liability based on the… by using that term accident not making reference to various common law notions.

Andrew J. Harakas:

I think one of the problems that we’re seeing is that confusing what is the accident… and that’s why I always come back to the injury-producing event.

In the hijacking situation, for example, the accident there isn’t the failure of the airline to conduct proper screening and allowing the hijackers to come on board the aircraft.

The accident is those hijackers get on the… on the airplane and they injure a passenger.

And that… the injury itself is the accident.

Just like in the smoke example, if there was a fire someplace and the cabin filled up with smoke, the smoke itself injuring the passenger is the accident.

Why the smoke got there is completely irrelevant.

So when you… when you start injecting the whole concepts of negligence, I think you upset the whole balance of the convention, and… and one of the principal goals of the convention was to have a uniformity and to limit the liability of the carrier.

In fact, the Montreal Convention of 1999, which just… which just entered into force last week here in the United States, retained the term accident.

The issue of whether the carrier should be liable for the state of the health of the passenger has always been a very special and unique issue in the context of the convention’s history.

Post-ratification conduct from 1945 all the way through the… all the way to the… the Montreal Convention of 1999, the contracting states were very careful and very reluctant to make the carriers liable for injuries arising out of their… out of the state of health of the passenger.

And the… with respect to the policy arguments where they say… where the respondents and Solicitor General say that the… there are certainly policy reasons should be considered in weighing in favor of the passengers in this instance, I think when you look to… you have to apply the strict terms of the convention.

And each time this Court has been confronted with similar policy arguments, they have been rejected.

In Saks, the… the passenger was left without a remedy because they couldn’t… because the passenger couldn’t satisfy the… the accident condition precedent.

The same thing in Floyd.

There they couldn’t satisfy the bodily injury requirement.

And in Tseng, where the… there was no remedy allowed under State law when they couldn’t satisfy the accident or the bodily injury conditions precedent.

Focusing on what the injury-producing event and whether that event is unusual, unexpected, and external to the passenger… thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Harakas.

The case is submitted.

The honorable court is now adjourned until Monday next at 10 o’clock.