Olympic Airways v. Husain, 540 U.S. 644, 21 (2004)

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Scalia, J., dissenting

As for the Court's hypothetical of the crew that refuses to divert after a passenger collapses, ante, at 656: This would be more persuasive as a reductio ad absurdum if the Eleventh Circuit had not already ruled out Article 17 liability in substantially these very circumstances. See Krys v. Lufthansa German Airlines, 119 F. 3d 1515, 1517-1522, 1527- 1528 (1997). A legal construction is not fallacious merely because it has harsh results. The Convention denies a remedy, even when outrageous conduct and grievous injury have occurred, unless there has been an "accident." Whatever that term means, it certainly does not equate to "outrageous conduct that causes grievous injury." It is a mistake to assume that the Convention must provide relief whenever traditional tort law would do so. To the contrary, a principal object of the Convention was to promote the growth of the fledgling airline industry by limiting the circumstances under which passengers could sue. See Tseng, 525 U. S., at 170-171. Unless there has been an accident, there is no liability, whether the claim is trivial, cf. Lee v. American Airlines Inc., 355 F. 3d 386, 387 (CA5 2004) (suit for "loss of a 'refreshing, memorable vacation' "), or cries out for redress.

Were we confronting the issue in the first instance, perhaps the Court could persuade me to its view. But courts in two other countries have already rejected it, and their reasoning is no less compelling than the Court's. I would follow Deep Vein Thrombosis and Povey and hold that mere inaction cannot be an "accident" under Article 17.


Respondents argue that, even if the Convention distinguishes action from inaction, this case involves sufficient elements of action to support recovery. That argument is not implausible; as noted earlier, the court in Deep Vein Thrombosis suggested that "[t]he refusal of the attendant to move [Hanson] could be described as insistence that he remain seated in the area exposed to smoke." [2004] Q. B., at 254,

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