Olympic Airways v. Husain, 540 U.S. 644, 16 (2004)

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Cite as: 540 U. S. 644 (2004)

Scalia, J., dissenting

vention. Ante, at 654-657. It derives this principle from our definition of "accident" in Saks as "an unexpected or unusual event or happening that is external to the passenger." 470 U. S., at 405. The Court says this definition encompasses failures to act like the flight attendant's refusal to reseat Hanson in the face of a request for assistance.

That is far from clear. The word "accident" is used in two distinct senses. One refers to something that is unintentional, not "on purpose"—as in, "the hundred typing monkeys' verbatim reproduction of War and Peace was an accident." The other refers to an unusual and unexpected event, intentional or not: One may say he has been involved in a "train accident," for example, whether or not the derailment was intentionally caused. As the Court notes, ante, at 651, n. 6, Saks adopted the latter definition rather than the former. That distinction is crucial because, while there is no doubt that inaction can be an accident in the former sense ("I accidentally left the stove on"), whether it can be so in the latter sense is questionable.

Two of our sister signatories have concluded that it cannot. In Deep Vein Thrombosis and Air Travel Group Litigation, [2004] Q. B. 234, England's Court of Appeal, in an opinion by the Master of the Rolls that relied heavily on Abramson v. Japan Airlines Co., 739 F. 2d 130 (CA3 1984), and analyzed more than a half-dozen other non-English decisions, held as follows:

"A critical issue in this appeal is whether a failure to act, or an omission, can constitute an accident for the purposes of article 17. Often a failure to act results in an accident, or forms part of a series of acts and omissions which together constitute an accident. In such circumstances it may not be easy to distinguish between acts and omissions. I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antith-


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