Olympic Airways v. Husain, 540 U.S. 644, 17 (2004)

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Scalia, J., dissenting

esis of an accident." [2004] Q. B., at 247, ¶ 25 (Lord Phillips, M. R.).

Six months later, the appellate division of the Supreme Court of Victoria, Australia, in an opinion that likewise gave extensive consideration to American and other foreign decisions, agreed:

"The allegations in substance do no more than state a failure to do something, and this cannot be characterised as an event or happening, whatever be the concomitant background to that failure to warn or advise. That is not to say that a failure to take a specific required step in the course of flying an aircraft, or in picking up or setting down passengers, cannot lead to an event or happening of the requisite unusual or unexpected kind and thus be an accident for the purpose of the article. A failure by a pilot to use some device in the expected and correct manner, such as a failure to let down the landing wheels or a chance omission to adjust the level of pressurisation, may lead, as has been held, to an accident contemplated by Article 17, but I would venture to suggest that it is not the failure to take the step which is properly to be characterised as an accident but rather its immediate and disastrous consequence whether that be the dangerous landing on the belly of the aircraft or an immediate unexpected and dangerous drop in pressurisation." Qantas Ltd. v. Povey, [2003] VSCA 227,

¶ 17, 2003 WL 23000692 (Dec. 23, 2003) (Ormiston, J. A.).

We can, and should, look to decisions of other signatories when we interpret treaty provisions. Foreign constructions are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently. (The Warsaw Convention's preamble specifically acknowledges "the advantage of regulating in a uniform manner the conditions of . . . the liability

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