Olympic Airways v. Husain, 540 U.S. 644, 13 (2004)

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Opinion of the Court

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).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 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." 49 Stat. 3020 (emphasis added).11 Because liability can be imposed for death

the risk"), and where the respective courts of last resort—the House of Lords and High Court of Australia—have yet to speak.

10 We do not suggest—as the dissent erroneously contends—that liability must lie because otherwise "harsh results," post, at 664 (opinion of Scalia, J.), would ensue. This hypothetical merely illustrates that the failure of an airline crew to take certain necessary vital steps could quite naturally and, in routine usage of the language, be an "event or happening."

11 The Montreal Protocol No. 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 language "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 acting "within the scope of his employment." S. Exec. Rep. No. 105-20, p. 29 (1998). In 1998, the United States gave its advice and

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