Olympic Airways v. Husain, 540 U.S. 644 (2004)


In December 1997, Dr. Abid Hanson and his wife, Rubina Husain (hereinafter respondent), traveled with their children and another family from San Francisco to Athens and Cairo for a family vacation. During a stopover in New York, Dr. Hanson learned for the first time that petitioner allowed its passengers to smoke on international flights. Because Dr. Hanson had suffered from asthma and was sensitive to secondhand smoke, respondent requested and obtained seats away from the smoking section. Dr. Hanson experienced no problems on the flights to Cairo.


For the return flights, Dr. Hanson and respondent arrived early at the Cairo airport in order to request non-smoking seats. Respondent showed the check-in agent a physician’s letter explaining that Dr. Hanson “has [a] history of recurrent anaphylactic reactions,” App. 81, and asked the agent to ensure that their seats were in the non-smoking section. The flight to Athens was uneventful.


After boarding the plane for the flight to San Francisco, Dr. Hanson and respondent discovered that their seats were located only three rows in front of the economy-class smoking section. Respondent advised Maria Leptourgou, a flight attendant for petitioner, that Dr. Hanson could not sit in a smoking area, and said, “ ‘You have to move him.’ ” 116 F. Supp. 2d 1121, 1125 (ND Cal. 2000). The flight attendant told her to “ ‘have a seat.’ ” Ibid. After all the passengers had boarded but prior to takeoff, respondent again asked Ms. Leptourgou to move Dr. Hanson, explaining that he was “ ‘allergic to smoke.’ ” Ibid. Ms. Leptourgou replied that she could not reseat Dr. Hanson because the plane was “ ‘totally full’ ” and she was “too busy” to help. Ibid.


Shortly after takeoff, passengers in the smoking section began to smoke, and Dr. Hanson was soon surrounded by ambient cigarette smoke. Respondent spoke with Ms. Leptourgou a third time, stating, “ ‘You have to move my husband from here.’ ” Id., at 1126. Ms. Leptourgou again refused, stating that the plane was full. Ms. Leptourgou told respondent that Dr. Hanson could switch seats with another passenger, but that respondent would have to ask other passengers herself, without the flight crew’s assistance. Respondent told Ms. Leptourgou that Dr. Hanson had to move even if the only available seat was in the cockpit or in business class, but Ms. Leptourgou refused to provide any assistance.[Footnote 2]


About two hours into the flight, the smoking noticeably increased in the rows behind Dr. Hanson. Dr. Hanson asked respondent for a new inhaler because the one he had been using was empty. Dr. Hanson then moved toward the front of the plane to get some fresher air. While he was leaning against a chair near the galley area, Dr. Hanson gestured to respondent to get his emergency kit. Respondent returned with it and gave him a shot of epinephrine. She then awoke Dr. Umesh Sabharwal, an allergist, with whom Dr. Hanson and respondent had been traveling. Dr. Sabharwal gave Dr. Hanson another shot of epinephrine and began to administer CPR and oxygen. Dr. Hanson died shortly thereafter.


Was the failure of the carrier to move the decedent away from the smoking section an accident within the meaning of the Warsaw Convention?


Petitioner argues that the “accident” inquiry should focus on the “injury producing event,” Reply Brief for Petitioner 4, which, according to petitioner, was the presence of ambient cigarette smoke in the aircraft’s cabin. Because petitioner’s policies permitted smoking on international flights, petitioner contends that Dr. Hanson’s death resulted from his own internal reaction—namely, an asthma attack—to the normal operation of the aircraft. Petitioner also argues that the flight attendant’s failure to move Dr. Hanson was inaction, whereas Article 17 requires an action that causes the injury.

   We disagree. As an initial matter, we note that petitioner did not challenge in the Court of Appeals the District Court’s finding that the flight attendant’s conduct in three times refusing to move Dr. Hanson was unusual or unexpected in light of the relevant industry standard or petitioner’s own company policy. 116 F. Supp. 2d, at 1133. Petitioner instead argued that the flight attendant’s conduct was irrelevant for purposes of the “accident” inquiry and that the only relevant event was the presence of the ambient cigarette smoke in the aircraft’s cabin. Consequently, we need not dispositively determine whether the flight attendant’s conduct qualified as “unusual or unexpected” under Saks, but may assume that it was for purposes of this opinion.

   Petitioner’s focus on the ambient cigarette smoke as the injury producing event is misplaced. We do not doubt that the presence of ambient cigarette smoke in the aircraft’s cabin during an international flight might have been “normal” at the time of the flight in question. But petitioner’s “injury producing event” inquiry—which looks to “the precise factual ‘event’ that caused the injury”—neglects the reality that there are often multiple interrelated factual events that combine to cause any given injury. Brief for Petitioner 14. In Saks, the Court recognized that any one of these factual events or happenings 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. 470 U. S., at 406. Indeed, the very fact that multiple events will necessarily combine and interrelate to cause any particular injury makes it difficult to define, in any coherent or non-question-begging way, any single event as the “injury producing event.”

Petitioner’s only claim to the contrary here is to say: “Looking to the purely factual description of relevant events, the aggravating event was Dr. Hanson remaining in his assigned non-smoking seat and being exposed to ambient smoke, which allegedly aggravated his pre-existing asthmatic condition leading to his death,” Brief for Petitioner 24, and that the “injury producing event” was “not the flight attendant’s failure to act or violation of industry standards,” Reply Brief for Petitioner 9–10. Petitioner ignores the fact that the flight attendant’s refusal on three separate occasions to move Dr. Hanson was also a “factual ‘event,’ ” Brief for Petitioner 14, that the District Court correctly found to be a “ ‘link in the chain’ ” of causes that led to Dr. Hanson’s death. 116 F. Supp. 2d, at 1135. Petitioner’s statement that the flight attendant’s failure to reseat Dr. Hanson was not the “injury producing event” is nothing more than a bald assertion, unsupported by any law or argument.

An example illustrates why petitioner’s emphasis on the ambient cigarette smoke as the “injury producing event” is misplaced. Suppose that petitioner mistakenly assigns respondent and her husband to seats in the middle of the smoking section, and that respondent and her husband do not notice that they are in the smoking section until after the flight has departed. Suppose further that, as here, the flight attendant refused to assist respondent and her husband despite repeated requests to move. In this hypothetical case, it would appear that, “[l]ooking to the purely factual description of relevant events, the aggravating event was [the passenger] remaining in his assigned … seat and being exposed to ambient smoke, which allegedly aggravated his pre-existing asthmatic condition leading to his death.” Brief for Petitioner 24. To argue otherwise, petitioner would have to suggest that the misassignment to the smoking section was the “injury producing event,” but this would simply beg the question. The fact is, the exposure to smoke, the misassignment to the smoking section, and the refusal to move the passenger would all be factual events contributing to the death of the passenger. In the instant case, the same can be said: The exposure to the smoke and the refusal to assist the passenger are happenings that both contributed to the passenger’s death.

And petitioner’s argument that the flight attendant’s failure to act cannot constitute an “accident” because only affirmative acts are “event[s] or happening[s]” under Saks is unavailing. 470 U. S., at 405. The distinction between action and inaction, as petitioner uses these terms, would perhaps be relevant were this a tort law negligence case. But respondents do not advocate, and petitioner vigorously rejects, that a negligence regime applies under Article 17 of the Convention. The relevant “accident” inquiry under Saks is whether there is “an unexpected or unusual event or happening.” Ibid. (emphasis added). The rejection of an explicit request for assistance would be an “event” or “happening” under the ordinary and usual definitions of these terms. See American Heritage Dictionary 635 (3d ed. 1992) (“event”: “[s]omething that takes place; an occurrence”); Black’s Law Dictionary 554–555 (6th ed. 1990) (“event”: “Something that happens”); Webster’s New International Dictionary 885 (2d ed. 1957) (“event”: “The fact of taking place or occurring; occurrence” or “[t]hat which comes, arrives, or happens”).[Footnote 9]

Moreover, the fallacy of petitioner’s position that an “accident” cannot take the form of inaction is illustrated by the following example. Suppose that a passenger on a flight inexplicably collapses and stops breathing and that a medical doctor informs the flight crew that the passenger’s life could be saved only if the plane lands within one hour. Suppose further that it is industry standard and airline policy to divert a flight to the nearest airport when a passenger otherwise faces imminent death. If the plane is within 30 minutes of a suitable airport, but the crew chooses to continue its cross-country flight, “[t]he notion that this is not an unusual event is staggering.” McCaskey v. Continental Airlines, Inc., 159 F. Supp. 2d 562, 574 (SD Tex. 2001).[Footnote 10]

Confirming this interpretation, other provisions of the Convention suggest that there is often no distinction between action and inaction on the issue of ultimate liability. For example, Article 25 provides that Article 22’s liability cap does not apply in the event of “wilful mis- conduct 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.” 49 Stat. 3020 (emphasis added).[Footnote 11] Because liability can be imposed for death or bodily injury only in the case of an Article 17 “accident” and Article 25 only lifts the caps once liability has been found, these provisions read together tend to show that inaction can give rise to liability. Moreover, Article 20(1) makes clear that the “due care” defense is unavailable when a carrier has failed to take “all necessary measures to avoid the damage.” Id., at 3019. These provisions suggest that an air carrier’s inaction can be the basis for liability

Useful for

Inaction or omission may constitute an accident

Treaty provisions considered

Article 17 WC29

Warsaw Convention 1929

Legislation considered

None identified.