Olympic Airways v. Husain, 540 U.S. 644, 19 (2004)

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Scalia, J., dissenting

in fact, the flight attendant did not insist that Hanson remain seated. But we can ignore this detail for the time being. The point is that the English court thought Husain could recover, not because the action-inaction distinction was irrelevant, but because, even though action was indispensable, it had in fact occurred.

The Court charts our course in exactly the opposite direction, spending three pages explaining why the action-inaction distinction is irrelevant. See ante, at 654-657. If the Court agrees with the Master of the Rolls that this case involves action, why does it needlessly place us in conflict with the courts of other signatories by deciding the then-irrelevant issue of whether inaction can constitute an accident? It would suffice to hold that our case involves action and end the analysis there. Whether inaction can constitute an accident under the Warsaw Convention is a significant issue on which international consensus is important; whether Husain can recover for her husband's death in this one case is not. As they stand, however, the core holdings of this case and Deep Vein Thrombosis—their rationes decidendi— are not only not "not inconsistent"; they are completely opposite.2

2 To the extent the Court implies that Deep Vein Thrombosis and Povey merit only slight consideration because they were not decided by courts of last resort, see ante, at 655-656, n. 9, I note that our prior Warsaw Convention cases have looked to decisions of intermediate appellate foreign courts as well as supreme courts. See Air France v. Saks, 470 U. S. 392, 404 (1985). Moreover, Deep Vein Thrombosis was no ordinary decision. It was authored by the Master of the Rolls, the chief judge of England's civil appellate court—a position thought by many to be even more influential than that of a Law Lord. See, e. g., Smith, Bailey & Gunn on the Modern English Legal System 250 (4th ed. 2002); Denning: A Life of Law, BBC News (Mar. 5, 1999), http://news.bbc.co.uk/1/hi/uk/290996.stm (as visited Jan. 20, 2004, and available in Clerk of Court's case file).

That there are "substantial factual distinctions" between the cases, ante, at 655, n. 9, is surely beside the point. A legal rule may arise in different contexts, but the differences are relevant only if the logic of the rule makes them so. Deep Vein Thrombosis and Povey hold in no uncertain

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