Academic journal article Defense Counsel Journal

From "Accident" to "Incident" under the Warsaw Convention

Academic journal article Defense Counsel Journal

From "Accident" to "Incident" under the Warsaw Convention

Article excerpt

Writing in the February newsletter of the Aviation and Space Law Committee, Bruce T. Bishop and Daniel T. Campbell of Wilcox & Savage, Norfolk, Virginia, discuss the recent cases:

With the United States Supreme Court's 1999 holding in El Al Israel Airlines v. Tsui Yuan Tseng, 525 U.S. 155, that "the Warsaw Convention precludes a passenger from maintaining an action for personal injury damages under local law when her claim does not satisfy the conditions for liability under the convention," the determination of whether an incident on board an international flight satisfies the Warsaw Convention's conditions has obvious importance to plaintiffs and defendants alike.

In Tseng, the plaintiff was subjected to an intrusive search before she boarded an El Al flight at JFK International Airport in New York. She alleged psychic and psychosomatic, but not physical, injuries. The Court read Article 24 of the convention to mean that a passenger is precluded from asserting any personal injury claims under local law even if the claims fail to satisfy the requirements of Article 17. The Court noted that there are two ways an incident would fail to satisfy those requirements: either the injury did not result from an "accident" or the "accident" did not result in physical injury or a physical manifestation of injury.

There are earlier and different interpretations across the United States of what constitutes an "accident" under the Warsaw Convention.

Supreme Court's definition

Unfortunately, the Supreme Court in Tseng did not directly address the issue of whether the plaintiff's detention and security search while boarding her international flight was an "accident" under Warsaw. Justice Ginsburg, writing for the Court, did offer some suggestion in footnote 9 of its decision, when she said of the Second Circuit's ruling (122 F.3d 99) that the search was not an accident, "It is questionable whether the Court of Appeals `flexibly applied' the definition of 'accident' we set forth in Saks." Air France v. Saks, 470 U.S. 392 (1985).

Beyond this hint, the Court merely stated that, for the purpose of the appeal, it accepted "as given" that the search of the plaintiff was not an accident under Article 17 because the parties did not place that issue before the Court.

Saks is the watershed case involving whether a particular occurrence constitutes an accident under the Warsaw Convention. In Saks, the plaintiff felt severe pressure and pain in her left ear during the normal descent of her Air France jetliner flight from Paris into Los Angeles. She disembarked without informing any crew members or employees of her ailment, but five days later she was diagnosed as permanently deaf in her left ear. She sued Air France, alleging that her hearing loss was caused by the negligent maintenance and operation of the aircraft's pressurization system. However, all of the available evidence indicated that it had operated in the usual manner.

The issue before the Supreme Court was whether the plaintiff had proved that an 11 accident" had occurred causing her injury. The Court examined whether the plaintiff had met her burden of proving an accident under Warsaw by showing that her injury was caused by the normal operation of the aircraft's pressurization system. Faced squarely with interpreting the term "accident" under the convention, the Court first looked to the actual language of the treaty and then examined the legislative history of the treaty and interpretations by the signatory nations.

After noting that it is the cause of the injury that must satisfy the definition of accident, rather then the occurrence of the injury alone, the Court emphasized that there is a distinction between an "accident" and an "occurrence" for the purposes of Article 17 and concluded:

Liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. …

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