Amicus Curiae Brief — Olympic Airways v. Husain

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No. 02-1348 4) Mt 1 12003

IN THE

Supreme Court of the United States

OLYMPIC AIRWAYS,

Petitioner,

v.

RUBINA HUSAIN, individually and as personal

representative of the estate of Abid M. Hanson, Mͤ. D.,

HANNAH HUSAIN, SARAH HUSAIN, ISAAC HUSAIN, by and

through their guardian ad litem RUBINA HUSAIN,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE AIR TRANSPORT ASSOCIATION

OF AMERICA, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Of Counsel WARREN L. DEAN, JR.

JAMES L. CASEY Counsel of Record

Vice President & Deputy PATRICIA N. SNYDER

General Counsel THOMPSON COBURN LLP

DAVID BERG 1909 K Street, N.W.

Assistant General Counsel Suite 600

AIR TRANSPORT ASSOCIATION Washington, D.C. 20006

OF AMERICA, INC. (202) 585-6900

1301Pennsylvania Ave., N.W.

Suite 1100 SUZANNE L. MONTGOMERY

Washington, D.C. 20004 THOMPSON COBURN LLP

(202) 626-4000 One US Bank Plaza

St. Louis, MO 63101

(314) 552-6000

Attorneys for

Amicus Curiae

Air Transport Association

of America, Inc.

SS — —6— —H — —

PRESS OF BYRON S ADAMS @ WASHINGTON. D.C @ 1-800-347-4208

usive basis

in international

imposes air

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injury or death

is aggravated by exposure to a normal

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only where an “accident” causes passenger

, applies when a passenger’s

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QUESTION PRESENTED FOR REVIEW |

The Warsaw Convention

Whether the Warsaw Convention, which

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damages for bodily

transportation. The question presented in this case is

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condition in the aircraft cabin, even if the

was a link in the

death or

ii

TABLE OF CONTENTS

Page

Question Presented for Revi i

. ii

Rar æZq iii

Interest of Amicus Curiae Air Transport Association of

Danerien. TRS oo ccccnccccccccestusseceessuene 2

Statement of the oö 6 4

Summary of Argument ..........--:eeeeeeeeeeees 7

. ꝶꝗ 8

„ oc cc ccccccbecsceecvévenesetneeneee 22

l L! 1a

TABLE OF AUTHORITIES

Page(s)

CASES:

Abramson v. Japan Airlines Co., 739 F.2d 130 (3d

S 11, 18, 19

Air France v. Saks, 470 U.S. 392 (1986) .......... passim

Carey v. United Airlines, 255 F.3d 1044 (9th Cir.

e resse eee 18

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1990) ... 15

El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155

eee / eee eee passim

Husain v. Olympic Airways, 116 F. Supp. 2d 1121

eee eee 3, 5, 12, 13, 17

Husain v. Olympic Airways, 316 F.3d 829

rr eee 4. 5, 6, 12,17

In re Air Disaster at Lockerbie, Scotland on

Dec. 21, 1988, 928 F.2d 1267 (2d Cir. 19917 16

In re Korean Air Lines Disaster of Sept. 1, 1983,

932 F.2d 1476 (D.C. Cir. 1901) .................. 16

Krys v. Lufthansa German Airlines, 119 F.3d 1515

ES ... 17, 18, 19

MacDonald v. Air Canada, 439 F.2d 1402

ee ee 11

Margrave v. British Airways, 643 F. Supp. 510

r ̃ .. . 11

Morris v. KLM Royal Dutch Airlines, 2002] 2 A.C. 628

D è⅛˙Ä“ill. ̃˙ͤ ..=.ͤ'dJ . 11. 16

Scherer v. Pan American World Airways, Inc.

387 N.Y.S.2d 580 (N.Y. App. Div. 1976) .......... 11

iv

Table of Authorities continued

Page(s)

Sidhu v. British Airways, 1997] A.C. 430 (H.L. 1996)... 10

Toteja v. British Airways PLC, No. JFM-99-815,

1999 WL 1425399 (D. Md. July 20, 1999) ........ 11

United States v. Carroll Towing Co., 159 F. 2d 1696

r eee eee 6

Zicherman v. Korean Air Lines Co., 516 U.S. 217

D 0 15

CONSTITUTIONAL PROVISIONS:

Drees esse ess sss 20

TREATIES:

Convention for the Unification of Certain Rules for

International Carriage by Air, May 28, 1999, ICAO

Doc. 9740, S. Treaty Doc. No. 106-45 (“1999

„„ ccoceseedeeeeeeseeue 3, 21

Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934),

reprinted in 49 U.S.C. § 40105 (note) (2000)

(Warsaw Convention") ................+++. passim

Montreal Protocol No. 4 to Amend the Convention for

the Unification of Certain Rules Relating to

International Carriage by Air, signed at Warsaw

on October 12, 1929 as amended by the Protocol

done at The Hague on September 28, 1955, Sept.

25, 1975, reprinted in S. EXEC. REP. No. 105-20

(1998) ("Montreal Protocol No. 4") ........... passim

V

Table of Authorities continued

Page(s)

Protocol to Amend the Convention for the Unification

of Certain Rules Relating to International

Carriage by Air, Signed at Warsaw on 12 October

1929, done at The Hague, Sept. 28, 1955, S. Treaty

...

Docket No. 087-966-1607, Order 971-2,

1997 DOT Av. LEXIS 2 (D.0.T. Jan. 8, 1997)

Second International Conference on Private

Aeronautical Law, Oct. 4-12, 1929, Warsaw

Convention Minutes (R. Horner & D. Legrez

ET aay EE RR .

United States Aviation Policy: The Montreal

Convention and The Hague Protocol, Hearing on

Aviation and Environment Treaties Before the

Senate Comm. on Foreign Relations, 108th Cong.

e =

™ ——

—

IN THE

Supreme Court of the United States

No. 02-1348

OLYMPIC AIRWAYS,

Petitioner,

v.

RUBINA HUSAIN, individually and as personal

representative of the estate of Abid M. Hanson, M.D.,

HANNAH HUSAIN, SARAH HUSAIN, ISAAC HUSAIN, by and

through their guardian ad litem, RUBINA HUSAIN,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE AIR TRANSPORT ASSOCIATION

OF AMERICA, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

The Air Transport Association of America, Inc. (“ATA”),

as amicus curiae, supports the position of Petitioner

Olympic Airways urging reversal of the decision of the

United States Court of Appeals for the Ninth Circuit.’

‘No party to this case had any role in drafting this brief, or

provided any monetary support for its preparation or filing See

Supreme Court Rule 37.6. The ATA is filing this brief with the consent

the Court.

2

INTEREST OF AMICUS CURIAE AIR

TRANSPORT ASSOCIATION OF AMERICA, INC.

The ATA is an association of 22 U.S. and five foreign

airlines? The ATA’s U.S. members operate within the

United States and in the U. S. foreign commerce. Its foreign

members also participate in the U.S. foreign commerce and

are subject to suit in the United States. A principal

purpose of the ATA is to support its member airlines by

promoting airline safety and advocating common industry

positions on important policy and legal issues. Since its

inception in 1936, the ATA has been involved in the

development of international law governing international

air transportation.

The decision below threatens to upset the established

expectations of air carriers and governments about the

operation of the treaty-based liability regime governing

international air transportation, commonly known as the

Warsaw Convention“ The decision below improperly

2 The ATA’s member airlines are: Airborne Express, Alaska

Airlines, Aloha Airlines, America West Airlines, American Airlines, ATA

and Mexicana de Aviacién.

° In this brief, all references to articles of the Waresaw

Convention are to the Convention as amended by Montreal Protocol No

4. as it is currently in effect for the United States. The text of

amended Convention, as published by the U.S. Senate Foreign Relations

Committee, appears in the Appendix to this brief. The international air

carrier liability regime comprises three documents at this writing:

3

imposes common-law duty-based negligence principles on

the definition of a compensable “accident” under Article 17

of the Warsaw Convention. It therefore undermines the

uniformity and exclusivity of air carrier liability under the

Convention that this Court’s decision in El Al Israel

Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999), requires, and

contradicts the non-fault-based meaning of “accident,”

which this Court adopted in Air France v. Saks, 470 U.S.

392 (1985). The courts below incorrectly applied common

law jurisprudence to this treaty-based legal regime by

expanding the definition of “accident” in Saks beyond

recognizable form. Contrary to the sugyestion of the

District Court, Tseng was not an instruction to the lower

courts to expand Saks, see Husain v. Olympic Airways, 116

F. Supp. 2d 1121, 1135 n.11 N. D. Cal. 2000), Petitioner's

Appendix‘ at 58a n.11, and the ATA urges the Court to

reverse the attempt of the lower courts to do so.

(1) Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S.

No. 876 (1934), reprinted in 49 U.S.C. § 40105 (note) (2000) (hereafter

“Warsaw Convention” or “Convention”); (2) Protocol to Amend the

Convention for the Unification of Certain Rules Relating to International

Carriage by Air, Signed at Warsaw on 12 October 1929, done at The

Hague, Sept. 28, 1955, S. Treaty Doc. 107-14; and (3) Montreal Protocol

No. 4 to Amend the Convention for the Unification of Certain Rules

Relating to International Carriage by Air, signed at Warsaw on October

12, 1929 as amended by the Protocol done at The Hague on September

28, 1955, Sept. 25, 1975, reprinted in S. EXEC. REP. NO. 105-20, at 21-32

(1998) (hereafter MPA. The United States currently is party only to

documents 1 and 3, the original Warsaw Convention and MP4. MP4

entered into force for the United States on March 4, 1999 The Hague

Protocol has been resubmitted recently to the Senate for its advice and

consent to ratification.

* Hereafter citations to the Appendix filed by Petitioner Olympic

Airways are cited as “Pet. App. at

4

STATEMENT OF THE CASE

This case addresses the liability of Olympic Airways for

the death of its passenger, Dr. Abid M. Hanson, during an

international flight from Athens, Greece to New York. Dr.

Hanson’s survivors allege that he died as a result of an

asthma attack caused by exposure to cigarette smoke in the

passenger cabin of the aircraft during the flight, which

lawfully allowed smoking in designated places. See Husain

v. Olympic Airways, 316 F.3d 829, 831-32 (9th Cir. 2002),

Pet. App. at 3a.

The evidence at trial established that Dr. Hanson had

a prior history of asthma and suffered from severe food

allergies before his death. See id. at 832-33, Pet. App. at

4a-5a. At the airport, he or a family member requested

that he be assigned a seat in the non-smoking section of the

aircraft. See id. at 833, Pet. App. at 6a. Upon boarding the

plane, Dr. Hanson and his family realized that he was

assigned to a non-smoking row close to the smoking section,

and his wife asked a flight attendant to reassign him to a

non-smoking seat further away from the smoking section.

See id. The flight attendant refused. Before the airplane

took off, Dr. Hanson’s wife asked again that he be moved to

a different seat, but was rebuffed once again even though

there were other non-smoking seats available. See id. at

833-34 n.5, Pet. App. at 6a-7a n.5.

Shortly after the airplane took off in Athens,

passengers in the smoking section began to smoke, and the

smoke began to bother Dr. Hanson. See id. at 834, Pet.

App. at 7a. His wife again asked the same flight attendant

to move him, but the attendant again refused to do so

because the plane was full. See id. The flight attendant

did grant Dr. Hanson’s wife the option of asking other

4

1

9

5

passengers if they would switch seats with him. See id.

Neither Dr. Hanson, his wife, nor any other of their several

traveling companions ever used this option. See Husain,

116 F. Supp. 2d at 1126, Pet. App. at 40a. Later, assisted

by a traveling companion who was an allergist, Dr. Hanson

was given at least two shots of allergy medication, after

which he collapsed and stopped breathing. See id. He was

then given cardio-pulmonary resuscitation and oxygen. See

Husain, 316 F.3d at 834, Pet. App. at 8a. Despite these

efforts, Dr. Hanson died on the aircraft. See id.

Dr. Hanson’s surviving family members filed this

action against Olympic Airways in a California state court

to recover damages resulting from his death. See id. at 832,

Pet. App. at 3a. They alleged that Olympic Airways was

liable for his death under the Warsaw Convention.

Olympic Airways timely removed the action to the United

States District Court for the Northern District of

California. See id.

Following a three-day bench trial, the District Court

issued its findings of fact and conclusions of law, and later

made technical corrections to those findings. Pet. App. at

32a-80a (reported at 116 F. Supp. 2d 1121 (N.D. Cal.

2000)). The District Court recognized the binding

precedent from this Court that the death of a passenger

during international air transportation is compensable only

if it is caused by an “accident.” See id. at 1130, Pet. App. at

49a (citing Saks, 470 U.S. at 396). Although the District

Court found that smoke exposure during the flight was a

primary cause of Dr. Hanson’s death, see id. at 1128, Pet.

App. at 43a-44a, the court held that the flight attendant’s

failure to comply with his wife’s requests to assign him to

a different seat was an “accident” under Article 17 of the

Warsaw Convention which proximately caused his death.

6

See id. at 1135, Pet. App. at 58a-60a. The District Court

also found that the flight attendant’s refusal to reassign Dr.

Hanson to another non-smoking seat constituted “wilful

misconduct” under Article 25 of the Warsaw Convention,

thereby exposing the airline to unlimited liability. See id.

at 1139, Pet. App. at 67a. Following the issuance of

supplemental findings of fact and conclusions of law, see

Pet. App. at 23a-3la, Olympic Airways timely appealed to

the United States Court of Appeals for the Ninth Circuit.

See Husain, 316 F.3d at 832, Pet. App. at 4a.

The Court of Appeals affirmed the District Court’s

holding that Dr. Hanson’s death was caused by an Article

17 “accident.” Pet. App. at la-21a (reported at 316 F.3d 829

(9th Cir. 2002)). The court specifically found that the flight

attendant’s failure to move Dr. Hanson’s seat violated

Olympic Airways’ procedures and was an “accident” under

Article 17. See id. at 837, Pet. App. at 14a. In language

reminiscent of the balancing test for a fault-based

negligence standard developed by Judge Learned Hand,°

5 The ATA notes that its members have waived the limits of

liability without the Articie 25 finding of “wilful misconduct” required by

the text of the Convention.

0 See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d

Cir. 1947):

[T]he owner's duty, as in other similar situations, to provide

against resulting injuries is a function of three variables: (1)

The probability that she will break away; (2) the gravity of the

resulting injury, if she does; (3) the burden of adequate

precautions. Possibly it serves to bring this notion into relief

to state it in algebraic terms: if the probability be called P,

the injury, L; and the burden, B; liability depends upon

whether B is less than L multiplied by P: i.e., whether B less

than PL.

Id.

7

the Court of Appeals explained that the “failure to act in

the face of a known, serious risk satisfies the meaning of

‘accident’ within Article 17 so long as reasonable

alternatives exist that would substantially minimize the

risk and implementing these alternatives would not

unreasonably interfere with the normal, expected operation

of the airplane.” Id.

Regarding causation, the Court of Appeals found that

“the exposure to smoke and failure to move Dr. Hanson”

was a sufficient “link in the chain” of causation to subject

the airline to liability for his death. Id. at 838, Pet. App. at

16a-17a (quoting Saks, 470 U.S. at 406). The Court of

Appeals also affirmed the District Court’s finding that Dr.

Hanson’s death was proximately caused by the “wilful

misconduct” of Olympic Airways under Article 25, stating

that the flight attendant’s “failure to take action, either by

moving Dr. Hanson or by notifying [her supervisor] of {his

wife’s] request to have her husband moved, was willful

misconduct.” Id. at 840, Pet. App. at 19a.

Following the decision from the Court of Appeals,

Olympic Airways timely petitioned for a writ of certiorari

from this Court. The Court granted that petition on May

27, 2003.

SUMMARY OF ARGUMENT

The decisions of the courts below are at odds with the

treaty-based liability regime governing international air

transportation, commonly known as the Warsaw

Convention. The ATA urges this Court to find as a matter

of law that the Convention does not provide a remedy when

a passenger’s pre-existing medical condition is aggravated

by exposure to a normal condition in the aircraft cabin,

regardless of whether the air carrier failed to minimize or

8

prevent the aggravation of the passenger’s pre-existing

medical condition. Two reasons support reversal:

First, the airline’s failure to assign Dr. Hanson a

different seat did not cause his death; therefore, it cannot

be the basis for liability under this Court’s interpretation

of Article 17 of the Warsaw Convention in Saks.

Second, and more fundamentally, by imposing common

law negligence theories of liability on international air

transportation, the decisions of the courts below contravene

this Court’s instruction in Tseng that the Warsaw

Convention is the exclusive remedy for passengers injured

during international air transportation. Allowing this

decision to stand will contradict the Court’s decision in

Tseng and render it meaningless. Contrary to the

suggestion by the District Court below, and affirmed by the

Court of Appeals, Tseng was not an instruction to the lower

courts to expand the Saks definition of “accident” by

imposing onto it modern common law concepts of duty,

foreseeability, and fault.

ARGUMENT

1. The Warsaw Convention establishes a

comprehensive liability system for the compensation of

passengers without regard to the fault of the airline. Many

of the world’s airlines, including ATA-member airlines,

have waived their limits of liability and certain defenses.’

The Warsaw Convention authorizes airlines to agree to

additional liabilities by “special contract.” Warsaw Convention, art. 22.

The U.S. Department of Transportation has approved the intercarrier

agreement by which ATA-member airlines waived their liability limit for

death of or bodily injury to passengers and waived the “all necessary

measures” defense of Article 20 for claims up to a certain liability

amount. See Docket No. OST-96-1607, Order 97-1-2, 1997 DOT Av.

9

As such, the Convention provides the exclusive basis for the

claim of a passenger seeking a remedy from an airline for

any personal injury or death occurring during international

air transportation. See Tseng, 525 U.S. at 161. This Court

has held specifically that “recovery for a personal injury

suffered on board an aircraft or in the course of any of the

operations of embarking or disembarking .. if not allowed

under the Convention is not available at all.” Jd. (internal

quotations and alterations omitted).

In Tseng, the Court construed Article 17 of the

Convention, which controls the imposition of liability for

personal injury or death suffered by a passenger. See id.

Article 17 provides:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger

or any other bodily injury suffered by a passenger,

if the accident which caused the damage so

sustained took place on board the aircraft or in the

course of the operations of embarking or

disembarking.®

Warsaw Convention, art. 17 (emphasis added).

Chapter III ofthe Warsaw Convention, in which Article

17 is found, imposes a specific and carefully constructed

process for determining the liability of an air carrier to its

passengers. A carrier is presumptively liable if a claim is

LEXIS 2 D. O. T. Jan. 8, 1997). Major foreign air carriers have taken

similar action.

* Quotations from the Warsaw Convention included in this brief

are to the official English translation of the Convention. See 49 Stat.

3014-3023, reprinted in 49 U.S.C. § 40105 (note) (2002). The governing

text of the Convention is written in French.

10

timely filed and the passenger can establish the three

elements required by Article 17: (1) death or bodily injury,

(2) caused by an accident, and (3) which occurred when the

passenger was on board the aircraft, or embarking or

disembarking from it. From this strong presumption of

liability, the Convention confers on the carrier two limited

defenses: the carrier can prove (1) that it took all necessary

measures to avoid the damage or that it was impossible to

take such measures (Article 20), or (2) that negligence of

the passenger caused or contributed to the damage, such

that the carrier may be exonerated wholly or partly from

his liability (Article 21). In this way, the Convention

confers on claimants the benefits of a presumption of

liability once they show that an “accident” caused “death or

bodily injury” while on board, or embarking or

disembarking from, an aircraft. This aspect of the legal

regime is a significant advantage to claimants. In return,

carriers are given certain limits on their liability. And, as

Tseng teaches, a carrier is not liable for personal injury if

the Article 17 criteria cannot be established. Regardless of

how cleverly the plaintiff describes or styles his claim,

following Saks and Tseng, when the plaintiff does not allege

or cannot prove that the passenger’s injury or death

resulted from an accident, a court errs in holding the

airline liable for the passenger’s injury or death.

As the British House of Lords has aptly explained in

foreshadowing this Court’s decision in Tseng, “[t]o permit exceptions,

whereby a passenger could sue outwith the Convention for losses

sustained in the course of international carriage by air, would distort the

whole system, even in cases for which the Convention did not create any

liability on the part of the carrier.” Sidhu v. British Airways, [1997] A.C.

430 (H.L. 1996).

11

The established definition of an “accident” under

Article 17, which is now accepted world-wide,“ comes from

this Court’s seminal 1985 decision in Saks. In Saks, this

Court defined “accident” to be “an unexpected or unusual

event or happening that is external to the passenger,” and

specifically limited the definition to exclude injury that

“indisputably results from the passenger’s own internal

reaction to the usual, normal, and expected operation of the

aircraft.” Saks, 470 U.S. at 405, 406.

This Court made clear in Saks that liability under

Article 17 arises only if the “accident” causes the

passenger's injury or death. See id. at 396. Under Saks, an

“accident” is an event that occurs independently of the

passenger. Explaining this definition, in Saks, the Court

cited with approval the holdings of lower courts that the

following incidents are not “accidents” within the meaning

of the Convention: sitting in an airline seat during a

normal flight, which aggravated a hernia despite the

airline’s failure to move the passenger’s seat, Abramson v.

Japan Airlines Co., 739 F.2d 130 (3d Cir. 1984); fainting

while waiting in the terminal for one’s baggage, MacDonald

v. Air Can., 439 F.2d 1402 (1st Cir. 1971); and sitting in an

airplane seat during a normal flight, which aggravated

thrombophlebitis, Scherer v. Pan Am. World Airways, Inc.,

387 N.Y.S.2d 580 (N.Y. App. Div. 1976). See Saks, 470 U.S.

at 404-05. Following Saks, courts have properly held that

the following injuries have not been caused by an

“accident”: swollen legs from sitting in an airplane seat,

Toteja v. British Airways PLC, No. JFM-99-815, 1999 WL

1425399 (D. Md. July 20, 1999); and a back injury from

„% See, e g., Morris v. KLM Royal Dutch Airlines, (2002) 2 A.C.

628, 71 H. L. 2002).

12

sitting in a seat for a prolonged period of time, Margrave v.

British Airways, 643 F. Supp. 510, 511 (S.D.N.Y. 1986).

The facts here — aggravation of a pre-existing

asthmatic condition by a normal and expected condition on

the aircraft leading to a passengers death — fit squarely

into this line of cases. The full holding of Saks made clear

that issues of crew negligence are not relevant because the

“accident” inquiry focuses solely on the “nature of the event

which caused the injury rather than the care taken by the

airline to avert the injury.” Saks, 470 U.S. at 406-07. For

these reasons, as a matter of law, Olympic Airways’ failure

to reassign Dr. Hanson’s seat did not cause his death and

the airline cannot be liable under the Warsaw Convention.

-The courts below improperly weaved foreseeability and

duty concepts into the Saks “accident” definition to support

the conclusion that failure to comply with industry

standards constitutes a sufficient “unexpected or unusual

event or happening” to find an Article 17 accident. Husain,

316 F.3d at 837, Pet. App. at 14a-15a; Husain, 116 F. Supp.

2d at 1132-33, Pet. App. at 51a-52a. But Saks rejected a

rationale similar to that accepted by the courts below. In

Saks, the plaintiff alleged that her permanent deafness was

caused by the airline’s failure to properly maintain and

operate the aircraft’s pressurization system. See Saks, 470

U.S. at 394. Because there was no evidence of any

malfunction, the Court addressed only the narrow issue of

whether a plaintiff can meet its burden by showing that her

injury was caused by the normal operation of the aircraft's

pressurization system. As the Court stated, “when the

injury indisputably results from the passengers own

internal reaction to the usual, normal, and expected

operation of the aircraft, it has not been caused by an

accident, and Article 17 of the Warsaw Convention cannot

3

13

apply.” Id. at 406. Here, as in Saks, the aircraft operated

normally. Thus, regardless of whether Olympic Airways

may have been negligent in failing to move Dr. Hanson,

that failure did not cause his allergic or asthmatic reaction

to the cigarette smoke, and consequently Olympic

Airways cannot be liable under the Convention.

In Saks, this Court provided important guidance to the

lower courts when it stated:

Any injury is the product of a chain of causes, and

we require only that the passenger be able to prove

that some link in the chain was an unusual or

unexpected event external to the passenger. Until

Article 17 of the Warsaw Convention is changed by

the signatories, it cannot be stretched to impose

liability for injuries that are not caused by

accidents.

Id. (emphasis added). The court below failed to adhere to

this guidance, and should therefore be reversed.

2. Two of this Court’s holdings from important Warsaw

Convention cases control the outcome in this case:

¢ The Warsaw Convention provides the exclusive

basis for air carrier liability to a passenger

claiming personal injury or death arising from

international air transportation. See Tseng, 525

U.S. at 161.

7 Indeed. it is undisputed that Dr. Hanson’s smoke allergy was

pre-existing, and the courts below found that the allergy caused his

death. See Husain, 116 F. Supp. 2d at 1130, Pet. App. at 47a (finding

that “Dr. Hanson's death was the result of respiratory distress which was

caused by an exacerbation of his asthmatic condition”).

* 14

„For an air carrier to be held liable, there must

be an unexpected or unusual event or

happening that is external to the passenger”

that caused the passenger's personal injury or

death. Saks, 470 U.S. at 405.

Here, the plaintiffs alleged no “accident” as that term is

defined by Saks or otherwise commonly understood.

Instead, they alleged that the air carrier failed to prevent

the passenger's internal “reaction to the usual, normal, and

expected operation of the aircraft” based upon the airline's

knowledge that it was foreseeable that the passenger would

have such an internal reaction. The plaintiffs further

alleged, and the courts below found, that the airline failed

to follow both industry standards” and its own company

standards, and that these omissions constituted “accidents”

under Article 17.

The courts below employed a modern, U.S.-developed,

common law approach to liability, rather than adhering to

the agreed international treaty-based liability regime

framed in the Warsaw Convention. In doing so, they

engaged in a form of creative jurisprudence that is alien to

the Convention’s goal of worldwide uniformity among

diverse legal systems. Their holdings threaten to

undermine the exclusivity and uniformity mandated by the

12 Apart from the fact that negligence-based liability is irrelevant

in determining whether an “accident” has occurred under the Warsaw

Convention, permitting an accident to be defined by reference to current

protect passengers or to prevent foreseeable injuries. If airlines are

going to be held liable to their passengers for failing to heed to a

passenger's request to move seats based upon vague assertions of

allergies, the standard in the industry will become simply to make no

effort to do so.

15

Convention and to overrule this Court’s decision in Tseng.

Both courts below focused on duty, industry standard of

care, and foreseeability, all of which are negligence-based

concepts developed by common law jurisprudence. Modern

common law theories of liability that have developed in this

country cannot be read into this international convention,

which was fixed, for the sake of certainty and uniformity,

when the negotiating States reached agreement on the

Convention. See, e.g., Eastern Airlines, Inc. v. Floyd, 499

U.S. 530, 544 & n.10 (1990) (rejecting the suggestion that

liability could be imposed on an airline solely for an

emotional injury in part because that injury has only

become compensable in modern times). In Tseng, which

held that the Warsaw Convention provides the exclusive

remedy for a passenger injured during an international

flight, this Court specifically held that the Convention

operates exclusive of state law. That exclusive liability

scheme created by the Convention is fixed unless and until

it is modified by the mutual agreement of the signatory

nations. The courts below therefore erred in imposing this

modern, extra-treaty legal construct on the Convention.

This Court has recognized that the cardinal purpose of

the Warsaw Convention is to “achieve uniformity of rules

governing claims arising from international air

transportation.” Tseng, 525 U.S. at 169-70; See also

Zicherman v. Korean Air Lines Co., 516 U.S. 217, 230

(1996), Floyd, 499 U.S. at 552. As explained in Tseng, the

Convention balances the interest of the passenger seeking

to recover damages for injuries or death against the

the Court reasoned that Irlecourse to local law. would

undermine the uniform regulation of international carrier liability that

the Warsaw Convention was designed to foster.” Tseng, 525 U.S. at 161.

16

interest of the carrier seeking uniform, predictable liability

rules. Thus, carriers gain from the limitation of liability,

but passengers benefit from the “clear presumption of

liability, which eliminated the difficult task of proving fault

on the part of the carrier.“ In re Korean Air Lines

Disaster of Sept. 1, 1983, 932 F.2d 1475, 1489 (D.C. Cir.

1991); see also In re Air Disaster at Lockerbie, Scot. on Dec.

21, 1988, 928 F.2d 1267, 1271 (2d Cir. 1991).

The focus of the courts below on the failure of Olympic

Airways to change Dr. Hanson’s seat and its failure to

follow industry standards to satisfy the “accident”

4 See Tseng, 525 U.S. at 170. Before the Warsaw Convention

was adopted, air carriers in civil law countries (the vast majority of the

signatory States) were permitted contractually to disclaim liability for

passenger injury or death. See generally SECOND INTERNATIONAL

CONFERENCE ON PRIVATE AERONAUTICAL LAW, OCT. 4-12, 1929, WARSAW

CONVENTION MINUTES (R. Horner & D. Legrez transl. 1975). The

drafting history of the Convention therefore reflects the drafters’

compromise with respect to passengers, between no liability and

exposure to unlimited liability. See id. at 47-48.

1 As Lord Hope of the British House of Lords recently explained:

From the point of view of the passenger or the

owner of baggage or cargo, the imposition of liability

without proof of fault on the carrier and the nullification

of provisions relieving him of liability or restricting the

amount of his liability are very significant advantages.

From the point of view of the carrier too however there

are significant advantages in the system laid down by

the Convention. A principal consequence of that system

is the exposure of the carrier to liabilities without the

freedom to contract out of them. But it defines those

situations in which compensation is to be available, and

it sets out the limits of liability and the conditions under

which claims to establish liability, if disputed, are to be

made. A balance has been struck between these competing

interests, in the interests of certainty and uniformity.

Morris, (2002) 2 AC 628, 66 (emphasis added).

17

requirement was incorrect and contrary to the structure of

the Convention. The question (or existence) of carrier fault

simply is not relevant in the first instance in determining

whether the liability presumption of Article 17 arises. The

sole proper inquiry is into “the nature of the event which

caused the injury,” Saks, 470 U.S. at 407. Here, it was Dr.

Hanson’s own internal reaction to the normal conditions of

this flight which caused the injury. The court’s inquiry into

the care taken by the air carrier to avert the alleged injury

during the normal and expected operation of an

international flight was improper and it was this inquiry

alone that led it to impose liability.

The courts below essentially equated the term

“accident” with “negligence,” which is not what the United

States agreed to in the Convention and does not fit within

the definition given by this Court in Saks. In contrast, the

Eleventh Circuit in Krys v. Lufthansa German Airlines got

it right, noting that ſhlaving provided for a defense

turning on the absence of negligence, we think it unlikely

that the drafters intended that the initial ‘accident’ inquiry

be resolved by reference to negligence.” 119 F.3d 1515,

1522 (11th Cir. 1997). The decision from the Court of

Appeals below accepting the plaintiffs’ argument that

ſblecause [the flight attendant's] conduct was negligent, it

fits the definition of accident under Article 17,” Husain, 316

F.3d at 836, Pet. App. at 12a, is therefore incorrect.“

Husain, 316 F.3d at 836, Pet. App. at 12a. The District Court

also reached a similar incorrect conclusion by relying improperly on a

negligence standard when it held that “(t)he negligent failure of the

flight crew to appropriately serve the needs of an ailing passenger can be

considered an ‘accident’ under the Convention.” Husain, 116 F. Supp. 2d

at 1131, Pet. App. at 50a.

In an earlier case (decided after the District Court's decision here

18

The leading pre-Saks case involving the proper

definition of “accident” - which this Court cited with

approval in Saks - is Abramson v. Japan Airlines, Co., Ltd.,

739 F.2d 130 (3d Cir. 1984). There, the Third Circuit held

that the airline’s alleged aggravation of a pre-existing

injury during the course of a normal flight was not an

Article 17 “accident” despite the flight crew’s refusal to aid

the passenger. In Abramson, the passenger claimed - as

the plaintiffs did here - that the refusal to aid him was

“unusual and unexpected” and thus an Article 17

“accident.” Id. at 132. The Third Circuit properly found

that absent “proof of abnormal external factors,

aggravation of a pre-existing injury during the course of a

routine and normal flight should not be considered an

‘accident’ within the meaning of Article 17.” Id. at 133.

Contrary to the instruction from this Court in Saks and

the proper application of the definition of accident in Krys

and Abramson, the courts below incorrectly shifted the

focus of the “accident” requirement from an inquiry into the

nature of the event that caused the injury (i.e., inhalation

of cigarette smoke on a smoking flight) to the care that the

air carrier allegedly could have taken to avert the injury.

This Court, however, made clear in Saks that the focus of

the “accident” inquiry is into the nature of the event that

caused the injury, and not the care taken by the airline to

avert the injury. See Saks, 470 U.S. at 407. The “accident”

standard that the courts below applied misconstrues the

nature of the liability created by the Warsaw Convention by

but before the Court of Appeals decision), the Ninth Circuit properly

applied the Convention when it explained that the definition of “accident”

makes “no mention of the carrier’s motive or mental state whatsoever.”

Carey v. United Airlines, 255 F.3d 1044, 1048 (9th Cir. 2001). The holding

of the Court of Appeals in this case conflicts with its own precedent.

S

——

19

improperly focusing the accident“ inquiry on

reasonableness, alternatives, foreseeability, and industry

standards. However, neither the Convention, Saks, Krys,

nor Abramson permits a court to premise its inquiry into

the “accident” based on a perception of the risk, reasonable

alternatives to avoid the risk, or the expense of minimizing

the risk.

In holding the airline liable for Dr. Hanson’s death and

ordering that the airline pay $1,400,000 in damages to his

family, the courts below held that an airline’s failure to

prevent a passenger’s internal reaction to a normal and

lawful condition on a flight constitutes a compensable

accident under the Warsaw Convention. The flight

attendant’s failure to move Dr. Hanson at his wife’s request

constitutes nothing more than an omission - the flight

attendant did not do anything and there was no “event” or

“happening.” Under Saks, such an omission cannot be an

Article 17 “accident.” While a pure omission can cause an

“accident,” it cannot be the accident.“ When an airline

fails to do something that the plaintiff claims it should have

done, such as reassign a passenger’s seat, no “event” or

“happening” has occurred. The evidence at trial established

that nothing happened during this ordinary and

unremarkable flight that involved the actions of anyone

except for the passenger himself and his atypical reaction

to a normal and otherwise unremarkable flight.

Quite simply, a failure to take action to prevent a

passenger’s internal reaction to a normal condition -

whether known by the airline’s employees or not - is not an

“event” or “happening” and is therefore outside the scope of

the Saks definition of an Article 17 accident. Neither court

below made any finding that the ambient smoke in the

passenger cabin was anything other than a “normal” and

20

“expected” condition on the flight. Under Saks, the presence

of normal, expected conditions takes this case outside the

scope of those that are compensable under the Warsaw

Convention.“

Allowing a court to engage in a form of jurisprudence

applied in the United States but not in all signatory States

will lead directly to the result the Convention was intended

to avoid, that is, the application throughout the world of

numerous and diverse tests of liability based on the

substantive law of the forum chosen by the plaintiff.“

Neither the District Court nor the Court of Appeals, both

part of the third branch of government, has the power to

change unilaterally the Convention language agreed to by

the Executive Branch and consented to by the Senate under

Article II, Section 2 of the U.S. Constitution.“

Finally, the United States and other countries have

drafted a new treaty to replace the Warsaw Convention

that preserves the basic liability regime of the Warsaw

“Plaintiffs presented no evidence at trial that anything

happened in the course of the flight that adversely affected the

performance or flight characteristics of the aircraft, that the

systems affecting the passenger cabin environment were in any

condition other than their normal working order, or that the

aircraft and its flight crew did not comply with all applicable

aviation regulations.

%% Under the Warsaw system, it is the procedural law only, never

the substantive law, that the forum court controls. See Warsaw

Convention, art. 28(2) (“Questions of procedure shall be governed by the

law of the court to which the case has been submitted.”).

This section of the U.S. Constitution grants the Executive, not

district court or court of appeals judges, the “Power, by and with the

Advice and Consent of the Senate, to make Treaties.” U.S. Const. art. II,

§ 2.

21

system. This new agreement, known as the 1999 Montreal

Convention,” is pending before the Senate for its advice

and consent to ratification. It preserves without change the

requirement of Article 17 that an “accident” occur before a

passenger can recover from an air carrier for personal

injury or death.“ The preservation of this requirement,

together with its uniform worldwide legal interpretation,

was an essential ingredient in securing the agreement of

parties to lift the Warsaw monetary liability limits. Upon

its entry into force, the 1999 Montreal Convention will

supersede the Warsaw Convention and will codify the

airlines’ contractual waivers of their liability limits.

As the Court in Tseng specifically made clear,

“Postratification adjustments are appropriately made

by the treaty’s signatories,” not the courts. Tseng, 525 U.S.

at 673 n. 12. The drafters of the 1999 Montreal Convention

have confirmed that the accident requirement as defined by

Saks remains a necessary prerequisite for awarding

damages for death or injury under the Warsaw Convention.

The ATA urges the Court to reverse the efforts by the

courts below to make improper postratification adjustments

to the Warsaw Convention.

= See Convention for the Unification of Certain Rules for

International Carriage by Air, May 28, 1999, ICAO Doc. 9740, S. Treaty

Doc. No. 106-45 (“1999 Montreal Convention”). The Senate Committee

on Foreign Relations held a hearing just three weeks ago on the 1999

Montreal Convention. See United States Aviation Policy: The Montreal

Convention and The Hague Protocol, Hearing on Aviation and

Environment Treaties Before the Senate Comm. on Foreign Relations,

108th Cong. D.674 (June 17, 2003).

21 1999 Montreal Convention, art. 17.

22

CONCLUSION

For the foregoing reasons, the Air Transport Association

of America, Inc. as amicus curiae urges the Court to reverse

the decision of the United States Court of Appeals for the

Ninth Circuit. This Court should hold as a matter of law

that the occurrence of an “accident,” which is a condition

precedent to air carrier liability under Article 17 of the

Warsaw Convention, is not satisfied when a passenger’s

pre-existing medical condition is aggravated by exposure to

a normal condition in the aircraft cabin, even if the air

carrier negligently fails to prevent the aggravation of the

passenger’s pre-existing medical condition.

Respectfully submitted,

Of Counsel WARREN L. DEAN, JR.

JAMES L. CASEY Counsel of Record

Vice President & Deputy PATRICIA N. SNYDER

General Counsel THOMPSON COBURN LLP

DAVID BERG 1909 K Street, N. W.

Assistant General Counsel Suite 600

AIR TRANSPORT ASSOCIATION Washington, D.C. 20006

OF AMERICA, INC. (202) 585-6900

1301Pennsylvania Ave., N.W.

Suite 1100 SUZANNE L. MONTGOMERY

Washington, D.C. 20004 THOMPSON COBURN LLP

(202) 626-4000 One US Bank Plaza

St. Louis, MO 63101

(314) 552-6000

Attorneys for

Amicus Curiae

Air Transport Association

of America, Inc.

la

THE PROVISIONS OF THE REVISED WARSAW CONVENTION

APPLICABLE TO THE UNITED STATES IN THE EVENT OF

RATIFICATION OF MONTREAL PROTOCOL No.4’

Excerpt from Senate Executive Report

105-20 (August 25, 1998)

CHAPTER I. SCOPE-DEFINITIONS

Article 1

1. This Convention shall apply to all international

transportation of persons, baggage, or goods performed by

aircraft for hire. It shall apply equally to gratuitous

transportation by aircraft performed by an air

transportation enterprise. (W-Art. 1)

2. For the purposes of this Convention, the expression

international carriage means any carriage in which,

according to the agreement between the parties, the place

of departure and the place of destination, whether or not

there be a break in the carriage or a transshipment, are

situated either within the territories of two High

Contracting Parties or within the territory of a single High

Contracting Party if there is an agreed stopping place

within the territory of another State, even if that State is

not a High Contracting Party. Carriage between two points

within the territory of a single High Contracting Party

without an agreed stopping place within the territory of

another State is not international carriage for the purposes

of this Convention. (H-Art. I

3. Carriage to be performed by several successive air

carriers is deemed, for the purposes of this Convention, to

be one undivided carriage if it has been regarded by the

1

Margin notes give the source of the provision (W = Warsaw

Convention; H = The Hague Protocol).

2a

parties as a single operation, whether it had been agreed

upon under the form of a single contract or of a series of

contracts, and it does not lose its international character

merely because one contract or a series of contracts is to be

performed entirely within the territory of the same State.

(H-Art. I

Article 2

1. This Convention shall apply to transportation performed

by the State or by legal entities constituted under public

law provided it falls within the conditions laid down in

Article 1. (W-Art. 2)

2. In the carriage of postal items the carrier shall be liable

only to the relevant postal administration in accordance

with the rules applicable to the relationship between the

carriers and the postal administrations. (M4-Art. II)

3. Except as provided in paragraph 2 of this Article, the

provisions of this Convention shall not apply to the carriage

of postal items. (M4-Art. IT)

CHAPTER II. TRANSPORTATION DOCUMENTS

SECTION I. PASSENGER TICKET

Article 3

1. In respect of the carriage of passengers a ticket shall be

delivered containing:

a) an indication of the places of departure and

destination;

b) if the places of departure and destination are within

the territory of a single High Contracting Party, one or

more agreed stopping places being within the territory

of another State, an indication of at least one such

stopping place;

3a

c) a notice to the effect that, if the passenger’s journey

involves an ultimate destination or stop in a country

other than the country of departure, the Warsaw

Convention may be applicable and that the Convention

governs and in most cases limits the liability of carriers

for death or personal injury and in respect of ioss of or

damage to baggage. (H-Art. III)

2. The passenger ticket shall constitute prima facie

evidence of the conclusion and conditions of the contract of

carriage. The absence, irregularity or loss of the passenger

ticket does not affect the existence or the validity of the

contract of carriage which shall, none the less, be subject to

the rules of this Convention. Nevertheless, if, with the

consent of the carrier, the passenger embarks without a

passenger ticket having been delivered, or if the ticket does

not include the notice required by paragraph l(c) of this

Article, the carrier shall not be entitled to avail himself of

the provisions of Article 22. (H-Art. III

SECTION II. BAGGAGE CHECK

Article 4

1. In respect of the carriage of registered baggage, a

baggage check shall be delivered, which, unless combined

with or incorporated in a passenger ticket which complies

with the provisions of Article 3, paragraph 1, shall contain:

a) an indication of the places of departure and

destination;

b) if the places of departure and destination are within

the territory of a single High Contracting Party, one or

more agreed stopping places being within the territory

of another State, an indication of at least one such

stopping place,

c) a notice to the effect that if the carriage involves an

ultimate destination or stop in a country other than the

4a

country of departure, the Warsaw Convention may be

applicable and that the Convention governs and in

most cases limits the liability of carriers in respect of

loss of or damage to baggage.

2. The baggage check shall constitute prima facie evidence

of the registration of the baggage and of the conditions of

the contract of carriage. The absence, irregularity or loss

of the baggage check does not affect the existence or the

validity of the contract of carriage which shall, none the

less, be subject to the rules of this Convention.

Nevertheless, if the carrier takes charge of the baggage

without a baggage check having been delivered or if the

baggage check (unless combined with or incorporated in the

passenger ticket which complies with the provisions of

Article 3, paragraph l(c)) does not include the notice

required by paragraph l(c) of this Article, he shall not be

entitled to avail himself of the provisions of Article 22,

paragraph 2. (H-Art. IV)

SECTION III. DOCUMENTATION RELATING TO

CARGO

Article 5

1. In respect of the carriage of cargo an air waybill shall be

delivered.

2. Any other means which would preserve a record of the

carriage to be performed may, with the consent of the

consignor, be substituted for the delivery of an air waybill.

If such other means are used, the carrier shall, if so

requested by the consignor, deliver to the consignor a

receipt for the cargo permitting identification of the

consignment and access to the information contained in the

record preserved by such other means.

3. The impossibility of using, at points of transit and

destination, the other means which would preserve the

record of the carriage referred to in paragraph 2 of this

5a

Article does not entitle the carrier to refuse to accept the

cargo for carriage. (M4-Art. III

Article 6

1. The air waybill shall be made out by the consignor in

three original parts.

2. The first part shall be marked “for the carrier”; it shall

be signed by the consignor. The second part shall be

marked “for the consignee”; it shall be signed by the

consignor and by the carrier. The third part shall be

signed by the carrier and handed by him to the consignor

after the cargo has been accepted.

3. The signature of the carrier and that of the consignor

may be printed or stamped.

4. If, at the request of the consignor, the carrier makes out

the air waybill, he shall be deemed, subject to proof to the

contrary, to have done so on behalf of the consignor.

(M4-Art. III

Article 7

When there is more than one package:

a) the carrier of cargo has the right to require the

consignor to make out separate air waybills,

b) the consignor has the right to require the carrier to

deliver separate receipts when the other means

referred to in paragraph 2 of Article 5 are used.

(M4-Art. III

Article 8

The air waybill and the receipt for the cargo shall contain:

a) an indication of the places of departure and

destination;

6a

_—

b) if the places of departure and destination are within

the territory of a single High Contracting Party, one or

more agreed stopping places being within the territory

of another State, an indication of at least one such

stopping place; and

c) an indication of the weight of the consignment.

(M4-Art. III

Article 9

Non-compliance with the provisions of Articles 5 to 8 shall

not affect the existence or the validity of the contract of

carriage, which shall, none the less, be subject to the rules

of this Convention including those relating to limitation of

liability. (M4-Art. III)

Article 10

1. The consignor is responsible for the correctness of the

particulars and statements relating to the cargo inserted by

him or on his behalf in the air waybill or furnished by him

or on his behalf to the carrier for insertion in the receipt for

the cargo or for insertion in the record preserved by the

other means referred to in paragraph 2 of Article 5.

2. The consignor shall indemnify the carrier against all

damage suffered by him, or by any other person to whom

the carrier is liable, by reason of the irregularity,

incorrectness or incompleteness of the particulars and

statements furnished by the consignor or on his behalf.

3. Subject to the provisions of paragraphs 1 and 2 of this

Article, the carrier shall indemnify the consignor against

all damage suffered by him, or by any other person to

whom the consignor is liable, by reason of the irregularity,

incorrectness or incompleteness of the particulars and

statements inserted by the carrier or on his behalf in the

receipt for the cargo or in the record preserved by the other

means referred to in paragraph 2 of Article 5. (M4-Art. IIT)

7a

Article 11

1. The air waybill or the receipt for the cargo is prima facie

evidence of the conclusion of the contract, of the acceptance

of the cargo and of the conditions of carriage mentioned

therein.

2. Any statements in the air waybill or the receipt of the

cargo relating to the weight, dimensions and packing of the

cargo, as well as those relating to the number of packages,

are prima facie evidence of the facts stated; those relating

to the quantity, volume and condition of the cargo do not

constitute evidence against the carrier except so far as they

both have been, and are stated in the air waybill to have

been, checked by him in the presence of the consignor, or

relate to the apparent condition of the cargo. (M4-Art. III

Article 12

1. Subject to his liability to carry out all his obligations

under the contract of carriage, the consignor has the right

to dispose of the cargo by withdrawing it at the airport of

departure or destination, or by stopping it in the course of

- the journey on any landing, or by calling for it to be

delivered at the place of destination or in the course of the

journey to a person other than the consignee originally

designated, or by requiring it to be returned to the airport

of departure. He must not exercise this right of disposition

in such a way as to prejudice the carrier or other consignors

and he must repay any expenses occasioned by the exercise

of this right.

2. If it is impossible to carry out the orders of the consignor

the carrier must so inform him forthwith.

3. If the carrier obeys the orders of the consignor for the

disposition of the cargo without requiring the production of

the part of the air waybill or the receipt for the cargo

delivered to the latter, he will be liable, without prejudice

to his right of recovery from the consignor, for any damage

8a

which may be caused thereby to any person who is lawfully

in possession of that part of the air waybill or the receipt

for the cargo.

4. The right conferred on the consignor ceases at the

moment when that of the consignee begins in accordance

with Article 13. Nevertheless, if the consignee declines to

accept the c argo, or if he cannot be communicated with, the

consignor resumes his right of disposition. (M4-Art. ITI)

Article 13

1. Except when the consignor has exercised his right under

Article 12, the consignee is entitled, on arrival of the cargo

at the place of destination, to require the carrier to deliver

the cargo to him, on payment of the charges due and on

complying with the conditions of carriage.

2. Unless it is otherwise agreed, it is the duty of the carrier

to give notice to the consignee as soon as the cargo arrives.

3. If the carrier admits the loss of the cargo, or if the cargo

has not arrived at the expiration of seven days after the

date on which it ought to have arrived, the consignee is

entitled to enforce against the carrier the rights which flow

from the contract of carriage. (M4-Art. III)

Article 14

The consignor and the consignee can respectively enforce

all the rights given them by Artic.es 12 and 13, each in his

own name, whether he is acting in his own interest or in

the interest of another, provided that he carries out the

obligations imposed by the contract of carriage. (M4-Art.

III

Article 15

1. Articles 12, 13 and 14 do not affect either the relations of

the consignor and the consignee with each other or the

9a

mutual relations of third parties whose rights are derived

either from the consignor or from the consignee.

2. The provisions of Articles 12, 13 and 14 can only be

varied by express provision in the air waybill or the receipt

for the cargo. (M4-Art. III

Article 16

1. The consignor must furnish such information and such

documents as are necessary to meet the formalities of

customs, octroi or police before the cargo can be delivered

to the consignee. The consignor is liable to the carrier for

any damage occasioned by the absence, insufficiency or

irregularity of any such information or documents, unless

the damage is due to the fault of the carrier, his servants,

or agents.

2. The carrier is under no obligation to enquire into the

correctness or sufficiency of such information or documents.

(M4-Art. ITI)

CHAPTER III. LIABILITY OF THE CARRIER

Article 17

The carrier shall be liable for damage sustained in the

event of the death or wounding of a passenger or any other

bodily injury suffered by a passenger, if the accident which

caused the damage so sustained took place on board the

aircraft or in the course of any of the operations of

embarking or disembarking. (W-Art. 17)

Article 18

1. The carrier is liable for damage sustained in the event of

the destruction or loss of, or damage to, any registered

baggage, if the occurrence which caused the damage so

sustained took place during the carriage by air.

2. The carrier is liable for damage sustained in the event of

the destruction or loss of, or damage to, cargo upon

10a

condition only that the occurrence which caused the

damage so sustained took place during the carriage by air.

3. However, the carrier is not liable if he proves ‘hat the

destruction, loss of, or damage to, the cargo resulted solely

from one or more of the following:

a) inherent defect, quality or vice of that cargo;

b) defective packing of that cargo performed by a

person other than the carrier or his servants or agents;

c) an act of war or an armed conflict;

d) an act of public authority carried out in connection

with the entry, exit or transit of the cargo.

4. The carriage by air wifhin the meaning of the preceding

paragraphs of this Article comprises the period during

which the baggage or cargo is in the charge of the carrier,

whether in an airport or on board an aircraft, or, in the case

of a landing outside an airport, in any place whatsoever.

5. The period of the carriage by air does not extend to any

carriage by land, by sea or by river performed outside an

airport. If, however, such carriage takes place in the

performance of a contract for carriage by air, for the

purpose of loading, delivery or transshipment, any damage

is presumed, subject to proof to the contrary, to have been

the result of an event which took place during the carriage

by air. (M4-Art. IV)

Article 19

The carrier shall be liable for damage occasioned by delay

in the transportation by air of passengers, baggage, or

goods. (W-Art. 19)

lla

Article 20

In the carriage of passengers and baggage, and in the case

of damage occasioned by delay in the carriage of cargo, the

carrier shall not be liable if he proves that he and his

servants and agents have taken all necessary measures to

avoid the damage or that it was impossible for them to take

such measures. (M4-Art. V)

Article 21

1. In the carriage of passengers and baggage, if the carrier

proves that the damage was caused by or contributed to by

the negligence of the person suffering the damage the Court

may, in accordance with the provisions of its own law,

exonerate the carrier wholly or partly from his liability.

2. In the carriage of cargo, if the carrier proves that the

damage was caused by or contributed to by the negligence

or other wrongful act or omission of the person claiming

compensation, or the person from whom he derives his

rights, the carrier shall be wholly or partly exonerated from

his liability to the claimant to the extent that such

negligence or wrongful act or omission caused or

contributed to the damage. (M4-Art. VI)

Article 22

1. In the carriage of persons the liability of the carrier for

each passenger is limited to the sum of two hundred and

fifty thousand francs. Where, in accordance with the law

of the court seised of the case, damages may be awarded in

the form of periodical payments, the equivalent capital

value of the said payments shall not exceed two hundred

and fifty thousand francs. Nevertheless, by special

contract, the carrier and the passenger may agree to a

higher limit of liability. (H-Art. XI)

2. a)In the carriage of registered baggage, the liability of

the carrier is limited to the sum of two hundred and

\

12a

fifty francs per kilogram, unless the passenger or

consignor has made, at the time when the package was

handed over to the carrier, a special declaration of

interest in delivery at destination and has paid a

supplementary sum if the case so requires. In that

case the carrier will be liable to pay a sum, not

exceeding the declared sum, unless he proves that the

sum is greater than the passenger’s or consignor’s

actual interest in delivery at destination. (H-Art. XI;

M4-Art. VII)

b) In the carriage of cargo, the liability of the carrier is

limited to a sum of 17 Special Drawing Rights per

kilogram, unless the consignor has made, at the time

when the package was handed over to the carrier, a

special declaration of interest in delivery at destination

and has paid a supplementary sum if the case so

requires. In that case, the carrier will be liable to pay

a sum not exceeding the declared sum, unless he

proves that the sum is greater than the consignor’s

actual interest in delivery at destination. (M4-Art. VII)

c) In the case of loss, damage or delay of part of

registered baggage or cargo, or of any object contained

therein, the weight to be taken into consideration in

determining the amount to which the carrier’s liability

is limited shall be only the total weight of the package

or packages concerned. Nevertheless, when the loss,

damage or delay of a part of the registered baggage or

cargo, or of an object contained therein, affects the

value of the other packages covered by the same

baggage check or the same air waybill, the total weight

of such package or packages shall also be taken into

consideration in determining the limit of liability.

(H-Art. XI)

n ——

— —

13a

3. As regards objects of which the passenger takes charge

himself the liability of the carrier is limited to five

thousand francs per passenger. (H- Art. XI)

4. The limits prescribed in this Article shall not prevent the

court from awarding, in accordance with its own law, in

addition, the whole or part of the court costs and of the

other expenses of the litigation incurred by the plaintiff.

The foregoing provision shall not apply if the amount of the

damages awarded, excluding court costs and other expenses

of the litigation, does not exceed the sum which the carrier

has offered in writing to the plaintiff within a period of six

months from the date of the occurrence causing the

damage, or before the commencement of the action, if that

is later. (H- Art. XI)

5. The sums mentioned in francs in this Article shall be

deemed to refer to a currency unit consisting of sixty-five

and a half milligrams of gold of millesimal fineness nine

hundred. These sums may be converted into national

currencies in round figures. Conversion of the sums into

national currencies other than gold shall, in case of judicial

proceedings, be made according to the gold value of such

currencies at the date of the judgment. (H-Art. XI)

6. The sums mentioned in terms of the Special Drawing

Right in this Article shall be deemed to refer to the Special

Drawing Right as defined by the International Monetary

Fund. Conversion of the sums into national currencies

shall, in case of judicial proceedings, be made according to

the value of such currencies in terms of the Special

Drawing Right at the date of the judgment. The value of a

national currency, in terms of the Special Drawing Right,

of a High Contracting Party which is a Member of the

International Monetary Fund, shall be calculated in

accordance with the method of valuation applied by the

International Monetary Fund, in effect at the date of the

judgment, for its operations and transactions. The value of

l4a

a national currency, in terms of the Special Drawing Right,

of a High Contracting Party which is not a Member of the

International Monetary Fund, shall be calculated in a

manner determined by that High Contracting Party.

Nevertheless, those States which are not Members of

the International Monetary Fund and whose law does not

permit the application of the provisions of paragraph 2(b)

of Article 22 may, at the time of ratification or accession or

at any time thereafter, declare that the limit of liability of

the carrier in judicial proceedings in their territories is

fixed at a sum of two hundred and fifty monetary units per

kilogramme. This monetary unit corresponds to sixty-five

and a half milligrammes of gold of millesimal fineness nine

hundred. This sum may be converted into the national

currency concerned in round figures. The conversion of this

sum into the national currency shall be made according to

the law of the State concerned. (M4-Art. VII

Article 23

1. Any provision tending to relieve the carrier of liability or

to fix a lower limit than that which is laid down in this

convention shall be null and void, but the nullity of any

such provision shall not involve the nullity of the whole

contract, which shall remain subject to the provisions of

this convention. (W-Art. 23, designated as para. 1 by

H-Art. XIT)

2. Paragraph 1 of this Article shall not apply to provisions

governing los or damage resulting from the inherent

defect, quality or vice of the cargo carried. (H-Art. XII)

Article 24

1. In the carriage of passengers and baggage, any action for

damages, however founded, can only be brought subject to

the conditions and limits set out in this Convention,

without prejudice to the question as to who are the persons

—

— — ͥ

15a

who have the right to bring suit and what are their

respective rights.

2. In the carriage of cargo, any action for damages, however

founded, whether under this Convention or in contract or

in tort or otherwise, can only be brought subject to the

conditions and limits of liability set out in this Convention

without prejudice to the question as to who are the persons

who have the right to bring suit and what are their

respective rights. Such limits of liability constitute

maximum limits and may not be exceeded whatever the

circumstances which gave rise to the liability. (M4-Art.

VIII)

Article 25

In the carriage of passengers and baggage, the limits of

liability specified in Article 22 shall not apply if it is proved

that the damage resulted from an act or omission of the

carrier, his servants or agents, done with intent to cause

damage or recklessly and with knowledge that damage

would probably result; provided that, in the case of such act

or omission of a servant or agent, it is also proved that he

was acting within the scope of his employment. (M4-Art.

IX) s

Article 25A

1. If an action is brought against a servant or agent of the

carrier arising out of damage to which this Convention

relates, such servant or agent, if he proves that he acted

within the scope of his employment, shall be entitled to

avail himself of the limits of liability which that carrier

himself is entitled to invoke under Article 22. (H-Art. XIV)

2. The aggregate of the amounts recoverable from the

carrier, his servants and agents, in that case, shall not

exceed the said limits. (H-Art. XIV)

16a

3. In the carriage of passengers and baggage, the provisions

of paragraphs 1 and 2 of this Article shall not apply if it is

proved that the damage resulted from an act or omission of

the servant or agent done with intent to cause damage or

recklessly and with knowledge that damage would probably

result. (M4-Art. X)

Article 26

1. Receipt by the person entitled to the delivery of baggage

or goods without complaint shall be prima facie evidence

that the same have been delivered in good condition and in

accordance with the document of transportation. (W-Art.

26)

2. In the case of damage, the person entitled to delivery

must complain to the carrier forthwith after the discovery

of the damage, and, at the latest, within seven days from

the date of receipt in the case of baggage and fourteen days

from the date of receipt in the case of cargo. In the case of

delay the complaint must be made at the latest within

t vnty- one days from the date on which the baggage or

cargo have [has] been placed at his disposal. (H-Art. XV)

3. Every complaint must be made in writing upon the

document of transportation or by separate notice in writing

dispatched within the times aforesaid. (W-Art. 26)

4. Failing complaint within the times aforesaid, no action

shall lie against the carrier, save in the case of fraud on his

part. (W-Art. 26)

Article 27

In the case of the death of the person liable, an action for

damages lies in accordance with the terms. of this

convention against those legally representing his estate.

(W-Art. 27)

17a

Article 28

1. An action for damages must be brought, at the option of

the plaintiff, in the territory of one of the High Contracting

Parties, either before the court of the domicile of the carrier

or of his principal place of business, or where he has a place

of business through which the contract has been made, or

before the court at the place of destination.

2. Questions of procedure shall be governed by the law of

the court to which the case is submitted. (W-Art. 28)

Article 29

1. The right to damages shall be extinguished if an action

is not brought within 2 years, reckoned from the date of

arrival at the destination, or from the date on which the

aircraft ought to have arrived, or from the date on which

the transportation stopped.

2. The method of calculating the period of limitation shall

be determined by the law of the court to which the case is

submitted. (W-Art. 29)

Article 30

1. In the case of transportation to be performed by various

successive carriers and falling within the definition set out

in the third paragraph »f Article 1, each carrier who accepts

passengers, baggage or goods shall be subject to the rules

set out in this convention, and shall be deemed to be one of

the contracting parties to the contract of transportation

insofar as the contract deals with that part of the

transportation which is performed under his supervision.

2. In the case of transportation of this nature, the

passenger or his representative can take action only

against the carrier who performed the transportation

during which the accident or the delay occurred, save in the

case where, by express agreement, the first carrier has

assumed liability for the whole journey.

18a

3. As regards baggage or goods, the passenger or consignor

shall have a right of action against the first carrier, and the

passenger or consignee who is entitled to delivery shall

have a right of action again<‘ ‘he last carrier, and further,

each may take action again: e carrier who performed the

transportation during which the destruction, loss, damage,

or delay took place. These carriers shall be jointly and

severally liable to the passenger or to the consignor or

consignee. (W-Art. 30)

Article 30A

Nothing in this Convention shall prejudice the question

whether a person liable for damage in accordance with its

provisions has a right of recourse against any other person.

(M4-Art. XI)

CHAPTER IV. PROVISIONS RELATING TO

COMBINED TRANSPORTATION

Article 31

1. In the case of combined transportation performed partly

by air and partly by any other mode of transportation, the

provisions of this convention shall apply only to the

transportation by air, provided that the transportation by

air falls within the terms of Article 1.

2. Nothing in this convention shall prevent the parties in

the case of combined transportation from inserting in the

document of air transportation conditions relating to other

modes of transportation, provided that the provisions of

this convention are observed as regards the transportation

by air. (W-Art. 31)

CHAPTER V. GENERAL AND FINAL PROVISIONS

Article 32

Any clause contained in the contract and all special

agreements entered into before the damage occurred by

— — —— — —— — ̃ᷓ —

19a

which the parties purport to infringe the rules laid down by

this convention, whether by deciding the law to be applied,

or by altering the rules as to jurisdiction, shall be null and

void. Nevertheless for the transportation of goods

arbitration clauses shall be allowed, subject to this

convention, if the arbitration is to take place within one of

the jurisdictions referred to in the first paragraph of Article

28. (W-Art. 32)

Article 33

Except as provided in paragraph 3 of Article 5, nothing in

this Convention shall prevent the carrier either from

refusing to enter into any contract of carriage or from

making regulations which do not conflict with the

provisions of this Convention. (M4-Art. XII)

Article 34

The provisions of Articles 3 to 8 inclusive relating to

documents of carriage shall not apply in the case of carriage

performed in extraordinary circumstances outside the

normal scope of an air carrier’s business. (M4-Art. XIII)

Article 35

The expression “days” when used in this convention means

current days, not working days. (W-Art. 35)

Articles 36-40

Article 40A

1. In Article 37, paragraph 2 and Article 40, paragraph 1,

the expression High Contracting Party shall mean State.

In all other cases, the expression High Contracting Party

Articles 36 to 40 govern participation in and withdrawal from

the Convention. Montreal Protocol No. 4 would largely supersede these

20a

shall mean a State whose ratification of or adherence to the

Convention has become effective and whose denunciation

thereof has not become effective.

2. For the purposes of the Convention the word territory

means not only the metropolitan territory of a State but

also all other territories for the foreign relations of which

that State is responsible. (H-Art. XVII)

Article 41

Any High Contracting Party shall be entitled not earlier

than two years after the coming into force of this

Convention to call for the assembling of a new international

conference to consider any improvements which may be

made in this Convention. To this end it will communicate

with any Government of the French Republic which will

take the necessary measures to make preparations for such

conference. (W-Art. 41)