Olympic Airways v. Husain, 540 U.S. 644, 11 (2004)

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Opinion of the Court

"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 preexisting 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

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