Cite as: 540 U. S. 644 (2004)
Opinion of the Court
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.
Finally, petitioner contends that the Ninth Circuit improperly created a negligence-based "accident" standard under Article 17 by focusing on the flight crew's negligence as the "accident." The Ninth Circuit stated: "The failure to act in the face of a known, serious risk satisfies the meaning of 'accident' within Article 17 so long as reasonable alternatives exist that would substantially minimize the risk and implementing these alternatives would not unreasonably interfere with the normal, expected operation of the airplane." 316 F. 3d, at 837. Admittedly, this language does seem to approve of a negligence-based approach. However, no party disputes the Ninth Circuit's holding that the flight attendant's conduct was "unexpected and unusual," ibid., which is the operative language under Saks and the correct Article 17 analysis.
For the foregoing reasons, we conclude that the conduct here constitutes an "accident" under Article 17 of the Warsaw Convention. Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Breyer took no part in the consideration or decision of this case.
consent to ratification of the protocol, and it entered into force in the United States on March 4, 1999. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 174, n. 14 (1999). Because the facts here took place in 1997-1998, Montreal Protocol No. 4 does not apply.
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