Olympic Airways v. Husain, 540 U.S. 644, 20 (2004)

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

Scalia, J., dissenting

I would follow the holdings of Deep Vein Thrombosis and Povey, since the Court's analysis today is no more convincing than theirs. Merely pointing to dictionaries that define " 'event' " as an " 'occurrence' " or " '[s]omething that happens,' " ante, at 655, hardly resolves the problem; it only reformulates one question (whether "accident" includes non-events) into an equivalent one (whether "accident" includes nonoccurrences and nonhappenings).

Equally unavailing is the reliance, ante, at 656-657, on Article 25 of the Warsaw Convention (which lifts liability caps for injury caused by a "default" of the airline equivalent to willful misconduct) and Article 20 (which precludes the airline's due-care defense if it fails to take "all necessary measures" to avoid the injury). The Court's analytical error in invoking these provisions is to assume that the inaction these provisions contemplate is the accident itself. The treaty imposes no such requirement. If a pilot negligently forgets to lower the landing gear, causing the plane to crash and killing all passengers on board, then recovery is presumptively available (because the crash that caused the deaths is an accident), and the due-care defense is inapplicable (because the pilot's negligent omission also caused the deaths), even though the omission is not the accident. Similarly, if a flight attendant fails to prevent the boarding of an individual whom she knows to be a terrorist, and who later shoots a passenger, the damages cap might be lifted even though the accident (the shooting) and the default (the failure to prevent boarding) do not coincide. Without the invented restriction that the Article 20 or 25 default be the accident itself, the Court's argument based on those provisions loses all force.

terms that inaction cannot be an accident; not that inaction consisting of failure to warn of deep vein thrombosis cannot be an accident. Maintaining a coherent international body of treaty law requires us to give deference to the legal rules our treaty partners adopt. It is not enough to avoid inconsistent decisions on factually identical cases.


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