Petition for Writ of Certiorari — Korean Air Lines Co. v. Wallace

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> Supreme Court 0.8.

FILED

00-560 0CT 10°00

No. 00-

ee.

‘IN THE

Supreme Court of the United States

KOREAN AIR LINES CO., LTD.,

Petitioner,

BRANDI WALLACE,

Respondent.

On PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ANDREW J. HARAKAS*

DIANE WESTWOOD WILSON

ConpDon & ForsyTH LLP

685 Third Avenue, 14th Floor

New York, New York 10017

(212) 894-6700

Attorneys for Petitioner

Korean Air Lines Co., Ltd.

* Counsel of Record

162659 ©) Counsel Press LLC

(800) 274-3321 + (800) 350-6850

QUESTION PRESENTED

Can a passenger’s sexual assault of another passenger

in an adjacent seat on board the aircraft constitute an

“accident” within the meaning of Article 17 of the Warsaw

Convention despite the absence of a causal role on the part

of the air carrier?

PARTIES TO THE PROCEEDING

The following persons and entities were parties before

the United States Court of Appeals for the Second Circuit:

1. Petitioner KOREAN AIR LINES CO., LTD.

2. Respondent Brandi Wallace

STATEMENT PURSUANT TO RULE 29.6

Petitioner KOREAN AIR LINES CO., LTD. (“KAL”)

is a Korean corporation engaged in the business of

international transportation by air of passengers, baggage

and cargo. KAL has no parent company but is a member of

The Hanjin Group of Korea, which comprises companies

under common management direction. No publicly held

company owns 10% or more of KAL’s stock.

ili

TABLE OF CONTENTS

QUESTION PRESENTED ...................

PARTIES TO THE PROCEEDING ............

STATEMENT OF THE BASIS FOR

CSS £2 ss oa wd hO GAGs So ti'ae

STATUTORY AND TREATY PROVISIONS ....

ME OU GaN 0'e Won dw Sickv ec veessce

B. Statement of Relevant Facts ............

C. Disposition by the Courts Below .......

1. The Decision of the District Court ....

2. Reversal by the Court of Appeals ....

Page

REASONS FOR GRANTING THE WRIT .......

Il.

THE DECISION OF THE COURT BELOW

CONFLICTS WITH THE COMPELLING,

PRAGMATIC CONCLUSION OF THE

COURT OF APPEALS FOR THE FIRST

CIRCUIT THAT AN ARTICLE 17

“ACCIDENT” REQUIRES A CAUSAL

ROLE BY AIRLINE PERSONNEL ......

THE DECISION OF THE COURT BELOW

CANNOT BE RECONCILED WITH THE

BASIC TENETS OF SARS ..............

A. An Article 17 “Accident” Cannot

Properly Be Grounded On a Finding that

the Injury Was the Result of a Risk

Characteristic of Air Travel .........

1. The Adjoining Nature of Economy

Class Seating Is Neither Unusual

Nor a Risk of Air Travel ........

2. AnAssaulting Passenger Surely Cannot

Be Considered a Characteristic Risk

#. 2. Saat aa eae

B. An Article 17 “Accident” Cannot Be

Found Where a Passenger Concedes that

No Act or Omission of the Air Carrier

Caused or Contributed to the Passenger’s

RTGS Prey eee re eee Pre

Il.

IV.

C. The Promulgation by the Court Below

of a Perceived Virtual Strict Liability

Regime Conflicts With Saks and Tseng

THE DECISION OF THE COURT BELOW

IS IN DIRECT CONFLICT WITH THE

POST-RATIFICATION UNDERSTANDING

OF THE MEANING OF “ACCIDENT” BY

THE CONTRACTING PARTIES TO THE

WARSAW CONVENTION .............

THIS IMPORTANT QUESTION OF

FEDERAL TREATY LAW SHOULD BE

SETTLED BY THE COURT SO THAT THE

LOWER COURTS APPLY ARTICLE 17

CONSISTENTLY TO THE AIR CARRIERS

OF THE WORLD OPERATING IN THE

AMES HRPURUENE CRN in is bie akin

IY kon ch Reh enk eb Lereked eeaeke

Page

TABLE OF AUTHORITIES

Page

Cases:

Air France v. Saks, 470 U.S. 392 (1985) ......... 4

Curley v. American Airlines, Inc., 846 F. Supp. 280

2 ook & 2B | Bre ry oe teeny of wae i)

Day v. Trans World Airlines, 528 F.2d 31 (2d Cir.

SOlae. én Wane cadeeesheues Nene eet aetete tes 16

Eastern Airlines v. Floyd, 499 U.S. 530 (1991) ... 10

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

ERE « «onets-wh ech beac eka ee Eees .. 18,19

Evangelinos v. Trans World Airlines, Inc., 550 F.2d

EDe CO Gal, ESTES oc bck eRe ews Fee ek s 16

Gezzi v. British Airways, 991 F.2d 603 (9th Cir.

| PPE TE Teer eT Pe oy er rye rte 8

Hernandez v. Air France, 545 F.2d 279 (1st Cir.

SE: ci-n% es wr eabe dhe Chk CUS CAA 16

Lahey v. Singapore Airlines, Ltd., 2000 U.S. Dist.

LEXIS 14439 (S.D.N.Y. Oct. 5, 2000) ........ 25

Langadinos v. American Airlines, Inc., 199 F.3d 68

{ge street eee yi Serre ee eer yy passim

vil

Page

Potter v. Delta Airlines, Inc., 98 F.3d 881 (5th Cir.

SOD in wd akO Sines baOi dy Sea ood eee 15

Price v. British Airways, 1992 WL 170679 (S.D.N.Y.

PT i AE RR AS his 9

Rullman v. Pan American World Airways, 122 Misc. 2d

PS Tate Shs NOE 6 soa oe bd 6 kde cacao 16

Saks v. Air France, 724 F.2d 1383 (9th Cir. 1984),

VOU E; SF0 se Oe CPO i esd Si ARR RAE S « passim

Stone v. Continental Airlines, Inc., 905 F. Supp. 823

Sk SUE IED NC ones 4250 be RA a ees 9

Tsevas v. Delta Air Lines, Inc., 1997 WL 767278

Spe GAME ERG ROME bp ek bieues boa waliscas 8

Warshaw v. Trans World Airlines, Inc., 442 F. Supp.

Gt GAA SOs CRETE. Serr tk ck oons eet eeier 16

Zicherman v. Korean Air Lines, 516 U.S. 217 (1996)

Pe TL ee Pe eh ey eure Peeper rE Re 19

vill

Page

Treaties, Conventions and Statutes:

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 note following 49 U.S.C.A. § 40105)

eee err ee Trey eer ees eres ae passim

Agreement Relating to Liability Limitations of the

Warsaw Convention and the Hague Protocol,

CAB Agreement 18900, reprinted in note

following 49 U.S.C.A. § 40105 (approved by CAB

Order E-23680, May 13, 1966, 31 Fed. Reg. 7302)

petisabeieduc seiner ankakasekeceeeees 4

Protocol to Amend the Convention for the

Unification of Certain Rules Relating to

International Carriage by Air Signed at Warsaw

12 October 1929, Done at the Hague on

28 September 1955, 478 U.N.T.S. 371 ........ 23

Protocol to Amend the Convention for the

Unification of Certain Rules Relating to

International Carriage by Air Signed at Warsaw

12 October 1929 as Amended by the Protocol

Done at the Hague on 28 September 1955, Signed

at Guatemala City, on 8 March 1971, ICAO Doc.

Dib. SR sh cerae Kean eae oe oe

* Page

Additional Protocol No. 4 to Amend the Convention

for the Unification of Certain Rules Relating to

International Carriage by Air Signed at Warsaw

12 October 1929 as Amended by the Protocol

_ Done at the Hague on 28 September 1955, Signed

at Montreal on 25 September 1975, ICAO Doc.

PL SC RRs eee adage wabeabaswues 23

Convention for the Unification of Certain Rules for

Carriage by Air, Signed at Montreal on 28 May

1999, DCW Doce. No. 57 (ICAO) ............ 24, 25

yi Se 8-2: eR eee ne nae rarer reer eee 1

PRA P Re Le ee ee eee re ee 2

RE > | ERR te ee eee Pere 2

ee I is ROY RA NSA S cae eee 2

i. 8 ey FS eee err er eee rere 11

Page -

Minutes and Reports:

Second International Conference on Private

Aeronautical Law, Oct. 4-17, 1929, Warsaw

Convention Minutes (R. Hurner‘& D. Legrez

SL Peeererer rere re rer ery very 10

ICAO Legal Committee, Minutes and Documents of

the Fourth Session, Montreal, 7 June — 18 June

1949, Report of the Sub-Committee on the

Revision of the Warsaw Convention, ICAO Doc.

pe tee 1) | re rere ots Seen 20

ICAO Legal Committee, Minutes and Documents of

the Eighth Session, Madrid, 11 September —

28 September 1951, ICAO Doc. 7229-LC/133

(i | ererrr rrr Trey rr ee eee 20, 21

Report of the U.S. Delegation to the Eighth Session

of the Legal Committee of ICAO, Madrid, Spain,

September 1951 (Emmory T. Nunneley, Jr.,

Chairman, U.S. Delegation), excerpts reprinted

he SE TAK FO Ree eo hen ca cacnvaedie ces 22

ICAO Legal Committee, Minutes of the Ninth

Session, Rio de Janeiro, 25 August — 12 September

1953, ICAO Doc. 7450-LC/136-1 (1954) ...... 22, 23

ICAO, Minutes of the International Conference on

Air Law, Guatemala City, ICAO Doc. 9040-LC/

BOE CAOGED kn cae ke ccnkaekcndikecnsuansks 24

ICAO, Documents of the International Conference

on Air Law, Guatemala City, ICAO Doc. 9040-LC/

RGF CIS TAD occas cccsccscecesnscasescosss

Message for the President of the United States

Transmitting The Montreal Convention, Treaty

Doc. 106-45 (Sept. 6, 2000) ............-----

Other Authorities:

Goedhuis, National Airlegislations and the Warsaw

Convention (The Hague 1937) ...........-+--

Page

PETITION FOR WRIT OF CERTIORARI

Petitioner Korean Air Lines Co., Ltd. (“KAL”)

respectfully requests that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Second Circuit entered on June 6, 2000.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit is officially reported at 214 F.3d 293

(2d Cir. 2000) and is reproduced in the Appendix hereto at

A la-16a.' The Opinion and Order of the District Court is

unofficially reported at 1999 WL 187213 (S.D.N.Y. Apr. 6,

1999), and is reproduced at A 17a-28a.

STATEMENT OF THE BASIS FOR JURISDICTION

The judgment of the Court of Appeals for the Second

Circuit was entered on June 6, 2000. KAL’s timely petition

for rehearing was denied by Order dated July 12, 2000

(A 29a-30a) and this Petition has been filed within 90 days

of that date. The jurisdiction of the Court is invoked under

28 U.S.C. § 1254(1).

STATUTORY AND TREATY

PROVISIONS INVOLVED

The applicable treaty is the 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 note following 49 U.S.C.A.

§ 40105) (“Warsaw Convention”). The pertinent provisions

are set forth in the Appendix at A 31a.

1. References preceded by “A” refer to pages in the Appendix

hereto.

STATEMENT OF THE CASE

A. Nature of the Case

Plaintiff Brandi Wallace (““Wallace”) brought an action

against KAL to recover damages as a result of being sexually

assaulted by another KAL passenger during KAL flight 61

from Seoul, Korea to Los Angeles, California. It is

undisputed that the action is governed exclusively by the

Warsaw Convention, as the incident of which Wallace

complained occurred- during the course of “international

transportation by air” within the meaning of Article | of the

Convention.’ The jurisdiction of the District Court was

based upon federal question (28 U.S.C. § 1331) under

the Warsaw Convention and there is diversity of citizenship

(28 U.S.C. § 1332). The jurisdiction of the Court of Appeals

was based upon 28 U.S.C. § 1291.

The Warsaw Convention creates air carrier liability for

“bodily injury” of a passenger if the damage sustained was

proximately caused by an “accident” within the meaning of

2. Article 1(1) states that the Convention applies “to all

international transportation of person, baggage, or goods performed

by aircraft for hire.” 49 Stat. 3014. Article 1(2) states that

“international transportation” includes any transportation in which

the place of departure and the place of destination .. .

are situated ... within the territory of a single High

Contracting Party, if there is an agreed stopping place

within the territory subject to the sovereignty,

suzerainty, mandate or authority of another power, even

though that power is not a party to this convention.

Id. Wallace was travelling pursuant to a ticket that provided for

round-trip transportation by air, U.S.-Korea-U.S.

the Article 17 of the Convention. The sole legal question

presented by this Petition is whether injuries that a plaintiff

does not dispute were the result of a passenger-on-passenger

assault can constitute an “accident” within the meaning of

Article 17.

B. Statement of Relevant Facts

Plaintiff Brandi Wallace was an economy class

passenger on a KAL Boeing 747 aircraft from Seoul, Korea

to Los Angeles, California on August 17, 1997. The standard

economy class seat row configuration for all Boeing 747.

aircraft consists of 11 seats (A—K) arranged as follows:

{window} ABC [aisle] DEFGH [aisle] IJK {window}

Wallace was seated in seat 43K, a window seat.

Within one hour of departure from Seoul, Wallace

consumed a meal and had a drink. After the meal service,

Wallace began to read a book and 30 minutes thereafter she

fell asleep. Approximately three hours after the KAL flight

departed Seoul, Wallace awoke to find that Kwang-Yong

Park (“Park”), the passenger seated next to her (seat 43)J),

had his hand in her underwear. Wallace quickly turned away

from Park, causing Park to remove his hand. When Park tried

to touch Wallace again, she struck Park “hard” and reported

the incident to a KAL crew member. The KAL crew member

immediately assigned Wallace a new seat. Park was arrested

upon arrival of the flight in Los Angeles.

Wallace commenced an action against KAL alleging that

KAL was “absolutely” liable for the assault under the terms

of the Warsaw Convention, as supplemented by the Montreal

Agreement.’ Wallace, however, has since conceded that the

assault was not caused “by a lack of due care on the part of”

KAL. See Brief for Plaintiff-Appellant at 2, 12 (2d Cir.,

dated Aug. 27, 1999) (pertinent excerpts are reproduced at

A 33a-34a).

C. Disposition by the Courts Below

1. The Decision of the District Court

After limited discovery on the circumstances

surrounding the incident, Wallace moved for partial summary

judgment on the issue of KAL’s liability under the Warsaw

Convention. The District Court denied the motion and

dismissed Wallace’s claim, finding that the sexual assault

by Park did not constitute an “accident” within the meaning

of Article 17 of the Convention. Wallace v. Korean Air, 1999

WL 187213 at *4 (A 17a).

On the basis of the Court’s decision in Air France v.

Saks, 470 U.S. 392, 405 (1985), and numerous post-Saks

cases involving passenger assaults, the District Court found

that the incident in this case was not an “accident” because

3. Agreement Relating to Liability Limitations of the Warsaw

Convention and the Hague Protocol, CAB Agreement 18900,

reprinted in note following 49 U.S.C. § 40105 (approved by

CAB Order E-23680, May 13, 1966, 31 Fed. Reg. 7302). Pursuant

to the Montreal Agreement, air carriers, by special contract,

voluntarily agreed to increase the limit of liability to $75,000 and

to waive the defense of all necessary measures for passenger injury

or death set forth in Article 20(1) (A 31a) of the Convention.

See Air France v. Saks, 470 U.S. 392, 406-07 (1985).

there “was no act or omission by the aircraft or airline

personnel representing a departure from the normal, expected

operation of the flight,” and because a sexual assault “‘is not

a risk characteristic of air travel or related to the operation

of the airplane.” A 21a-27a. In sum, the District Court held

“that air carriers should be liable for torts that are proximately

caused by the abnormal or unexpected operation of the

aircraft or the abnormal or unexpected conduct of airline

personnel.” A 25a. Accordingly, the District Court dismissed

the action for lack of an Article 17 “accident.”

2. Reversal by the Court of Appeals

The Majority Opinion. The Majority Opinion of the

court below first noted the wide-ranging and often competing

views as to the meaning of the term “accident.” A 10a-1 1a.

Then, assuming that the District Court’s definitions of an

Article 17 “accident” to be correct, the court below relied

on what it considered to be the “narrower characteristic risk

of air travel approach” and held that the sexual assault was

an Article 17 “accident.” A 11a-12a. Under this approach an

“accident” “ ‘must arise from such risks that are characteristic

of air travel.’ ” A 10a. The court below stated that “[(tJhough

a close question,” its conclusion was reached “mindful of

the ‘virtual strict liability’ imposed on air carriers by the

Warsaw regime,” and in deference to the Court’s admonition

in Saks to interpret the term “accident” both “flexibly” and

“broadly.” A 12a (emphasis added). The court below,

however, declined to decide whether all cO-passenger

torts can be considered an “accident” within the meaning of

Article 17.

The court below instead held that the assault of this

passenger by a fellow passenger was an “accident” based on

the court’s assumptions‘ that:

1. the characteristics of economy class seating in air travel

increased Wallace’s vulnerability to Park’s assault (i.e., Wallace

was “cramped into a confined space beside two men she did

not know” with the “lights turned down”) (A 12a-13a); and

2. KAL did not notice the assault by Park (i.e., the assault

was “in the dark” and “could not have been five-second

procedures even for the nimblest of fingers”; “nor could they

have been entirely inconspicuous”) (A 13a).

The court below elected to ignore plaintiff Wallace’s

concessions that there was no lack of due care by KAL and that

no acts or omissions of KAL caused or contributed to the assault.

See A 33a-34a.

The Concurring Opinion. The Concurring Opinion agreed

in the result but would have decided the case solely on the

grounds that the assault by Park was an unusual and unexpected

event that was external to Wallace, i.e., by ostensibly applying

a literal reading of the Saks decision. A 14a-16a.

KAL’s petition for panel rehearing and rehearing en banc

was denied. A 29a-30a.

4. The “factual” findings by the court below in the Majority

Opinion as to the manner of the attack were not based on any

evidence adduced in the record. There is no evidence in the record:

(1) as to how long it took Mr. Park to unbuckle plaintiff's clothing;

(2) that the assault “could not have been five-second procedures

even for the nimblest of fingers”; (3) as to the duration of the attack

prior to Wallace waking up; or (4) as to whether the attack would or

should have been conspicuous to KAL flight attendants. A 12a-13a.

REASONS FOR GRANTING THE WRIT

The court below has held that an airline is absolutely

liable under Article 17 of the Warsaw Convention for the

assault of a passenger by a fellow passenger, even when the

victim of the assault concedes that no act or omission of the

airline caused or contributed to the assault. The decision of

the court below is fundamentally wrong. The Warsaw

Convention treaty cannot sensibly be interpreted as providing

for absolute liability for a passenger’s injury where it is

conceded that the airline did nothing wrong.

Article 17 of the Warsaw Convention sets forth the

circumstances under which an air carrier may be liable for

an injury to a passenger. 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 any of the operations

of embarking or disembarking.

49 Stat. 3018 (emphasis added) (A 31a).

The Court in Saks, 470 U.S. at 392, shed some light on

the meaning of “accident,” a case in which the district court

had held that a passenger who sustained an ear injury caused

by the normal cabin pressurization changes during landing

could not recover damages unless she could show some

malfunction or abnormality in the aircraft’s operation.

See Saks v. Air France, 724 F.2d 1383, 1384 (9th Cir. 1984)

(recounting the district court decision). Reversing this ruling,

the Ninth Circuit held that a showing of a malfunction or

abnormality in the aircraft’s operation was not a prerequisite

to liability under the Convention, and further held that the

Convention and the Montreal Agreement imposed absolute

liability on airlines “for injuries proximately caused by the

risks inherent in air travel.” Jd. at 1387-88. The Court in

Saks wisely disagreed.

The Court rejected the Ninth Circuit’s reading of

Article 17 and held that liability exists only if the passenger

proves that an “accident” caused the injury. The Court stated

that an Article 17 “accident” “arises only if a passenger’s

injury is caused by an unexpected or unusual event or

happening that is external to the passenger.” Jd. at 405.

The “narrow issue presented” in Saks was framed by

plaintiff's ear injury caused by the normal operation of the

flight. Therefore, the Court held only that “when the injury

indisputably results from the passenger’s 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 apply.” Jd. at 406.

After Saks, until this case, the lower courts uniformly

have refused to find an Article 17 “accident” for passenger-

on-passenger assaults, unless the airline plays a causal role

in the commission of the assault .° The decision of the court

5. See Langadinos v. American Airlines, Inc., 199 F.3d 68, 70-

71 (1st Cir. 2000); see also Gezzi v. British Airways, 991 F.2d 603,

604 (9th Cir. 1993) (noting that passenger assault does not relate to

the operation of the aircraft); Tsevas v. Delta Air Lines, Inc., 1997

WL 767278 (N.D. Ill. Dec. 1, 1997) (intoxicated passenger’s

(Cont'd)

below ignored the standard set forth by these cases and

erroneously applied the Ninth Circuit “the hazards of air

travel” approach (see Saks, 724 F.2d at 1387), implicitly

rejected by the Court in Saks.

Thus, the court below erred in a decision that conflicts

with the decision of the Court of Appeals for the First Circuit

in Langadinos v. American Airlines, Inc., 199 F.3d 68

(1st Cir. 2000), which held that where airline personnel play

no causal role in the commission of the tort, there is no Article

17 “accident.” The court below chose to ignore Langadinos.

More importantly, the court below issued a decision that

conflicts with the holding and rationale of the Court’s

decision in Saks. While claiming to apply Saks, the court

below, in effect, chose to ignore Saks and applied the

discredited rationale of the Ninth Circuit in Saks.

The court below also chose to ignore that in 1929 the

primary purpose of the Convention was to create a regime

(Cont’d)

unwanted sexual advances, coupled with the refusal of flight

attendants to intervene, is “accident”); Stone v. Continental Airlines,

Inc., 905 F. Supp. 823 (D. Hawaii 1995) (plaintiff punching another

passenger is not risk characteristic of air travel); Curley v. American

Airlines, Inc., 846 F. Supp. 280, 283 (S.D.N.Y. 1994) (detention

and search by Mexican authorities due to accusation of smoking

marijuana in airplane lavatory “hardly a characteristic risk of air

travel”); Price v. British Airways, 1992 WL 170679 at *2-3

(S.D.N.Y. July 7, 1992) (“To suggest that a fistfight between two

passengers is a characteristic risk of air travel is absurd”). Accord

Goedhuis, National Airlegislations and the Warsaw Convention at

200 (The Hague 1937) (“In the example . . . in which a passenger is

injured in a fight with another passenger, it would be unjustifiable

to declare the carrier liable by virtue of Article 17, because the

accident which caused the damage had no relation with the operation

of the aircraft”).

of limited air carrier liability. See Eastern Airlines v. Floyd,

499 U.S. 530, 546 (1991); see also Second International

Conference on Private Aeronautical Law, Oct. 4-12, 1929,

Warsaw Convention Minutes at 42, 47-48 (R. Horner

& D. Legrez transl. 1975) (“1929 Warsaw Minutes”).°

The interpretation of the term “accident” by the court below

is contrary to this goal.

Finally, the court below chose to ignore the

understanding of the contracting states. The decision of the

court below conflicts with the post-ratification understanding

of the contracting parties to the Warsaw Convention, as the

contracting states have consistently considered the term

“accident” to preclude air carrier liability for passenger-on-

passenger assaults.

The decision of the court below is fundamentally flawed.

To allow the decision of the court below to stand would foster

confusion and disarray in the lower courts with respect to

the proper application of a treaty of the United States.

6. Before the Warsaw Convention was adopted, carriers in civil

law countries were permitted to contractually disclaim any liability

for passenger injury or death. The drafting history of the Convention

reflects the drafters’ compromise with respect to passengers, between

no liability and exposure to unlimited liability. See 1929 Warsaw

Minutes at 47-48.

THE DECISION OF THE COURT BELOV, CONFLICTS

WITH THE COMPELLING, PRAGMATIC CONCLUSION

OF THE COURT OF APPEALS FOR THE FIRST CIRCUIT

THAT AN ARTICLE 17 “ACCIDENT” REQUIRES A

CAUSAL ROLE BY AIRLINE PERSONNEL

While the lower courts have wrestled with the Saks

definition in various contexts, until the case at bar, the lower

courts uniformly have held that an assault of a passenger by

a fellow passenger is not an Article 17 “accident” where the

airline plays no causal role in the commission of the assault.

See supra note 5.

This rule was reiterated succinctly only six months prior

to the decision of the court below by the Court of Appeals

for the First Circuit in the Langadinos decision, which the

court below failed to address (even though brought to its

attention by the parties pursuant the Fed. R. App. P. 28(j)).

In Langadinos, a case addressing whether the sexual

assault of a male passenger by another male passenger could

be an Article 17 “accident,” the First Circuit stated:

Of course, not every tort committed by a fellow

passenger is a Warsaw Convention accident.

Where the airline personnel play no causal role

in the commission of the tort, courts have found

no Warsaw accident. [citations omitted]. On the

flip side, courts have found Warsaw accidents

where airline personnel play a causal role in a

passenger-on-passenger tort. [citation omitted].

199 F.3d at 70-71.

While the court in Langadinos found a causal airline

role and thus that plaintiffs claim could fall within the ambit

of an Article 17 “accident” (at least for purposes of defeating

a motion for summary judgment), the court’s conclusion was

premised on plaintiff's allegations, that (1) the assaulting

passenger visibly appeared “intoxicated, aggressive and

erratic,” (2) the airline was on notice of the passenger’s

behavior, and (3) despite this awareness, the airline continued

to serve alcohol to the assaulting passenger. 199 F.3d at 71.

The court explained: “Serving alcohol to an intoxicated

passenger may, in some instances, create a foreseeable risk

that the passenger will cause injury to others.” Jd. The case

was remanded to the district court for further proceedings

with the court noting that plaintiff was still required to

establish that the airline’s conduct was a proximate cause of

the injury and a compensable injury. /d

In this case, Wallace has made no allegations resembling

those found significant in Langadinos. To the contrary,

Wallace had conceded that no acts or omissions of KAL

caused or contributed to the assault. A 33a-34a. The decision

of the court below is irreconcilable with Langadinos — under

Langadinos, there is no “accident” for Park’s assault of

Wallace; under Wallace, Park’s assault is an “accident.”

The court below has created a conflict between the

First and Second Circuits as to whether a sexual assault

constitutes an Article 17 “accident” where “the airline

personnel play no causal role in the commission of the tort.”

Il.

THE DECISION OF THE COURT BELOW CANNOT

BE RECONCILED WITH THE BASIC

TENETS OF SAKS

The principles of Saks can fairly be summarized as

follows:

¢ The passenger’s injury must be “caused by” an

Article 17 “accident” defined as an “unexpected or

unusual event or happening that is external to the

passenger” (470 U.S. at 405);

¢ There is no “accident” if the injury is caused by the

usual, normal and expected operation of the aircraft

(470 U.S. at 406);

* The almost “absolute liability” regime created by

the Montreal Agreement cannot serve as a basis to

expand or alter the meaning of “accident” intended

by the drafters of Article 17 (470 U.S. at 406-07);

and

* The “accident” requirement of Article 17 involves

“an inquiry into the nature of the event which caused

the injury rather than the care taken by the airline to

avert the injury” (470 U.S. at 408).

The post-Saks application of the above principles to

passenger-on-passenger assaults has reflected the lower

courts’ recognition, except in the court below, that to hold

that a passenger injury was caused by an Article 17

“accident”, the proximate cause of the injury must be

some abnormal or unexpected operation of the aircraft or

abnormal or unexpected conduct of airline personnel.

See supra, note 5.

A. An Article 17 “Accident” Cannot Properly Be

Grounded On a Finding that the Injury Was the

Result of a Risk Characteristic of Air Travel

Subsequent to Saks, although the lower courts have

imposed liability in cases where the operation of the aircraft

or acts or omissions by airline personnel have furthered

injuries by fellow passengers, all of the passenger-on-

passenger assault cases are founded on the basic principle

that liability under the Warsaw Convention must be premised

upon the abnormal or unexpected operation of the aircraft

or the abnormal or unexpected conduct of airline personnel.

See supra note 5. The court below failed to recognize this

basic premise, which enabled the court below to justify its

application of the “characteristic risk of air travel approach”

in order to find liability. A 10a-13a.

Under the “characteristic risk of air travel approach” as

used by the court below, so long as the characteristics of air

travel were found to have “increased Ms. Wallace’s

vulnerability to Mr. Park’s assault,” liability can be imposed.

A 12a-13a. Thus, ironically, the court below found that

the normal conditions in the operation of the aircraft created

a risk of injury giving rise to liability. A 12a-13a.

This conclusion is illogical and at odds with the basic tenets

of Saks that the injury must be caused by an “accident” and

to be an “accident,” the cause must be unusual and

unexpected.

1. The Adjoining Nature of Economy Class Seating

Is Neither Unusual Nor a Risk of Air Travel

The court below found that the characteristics of

economy class travel increased a passenger’s vulnerability

to a sexual assault. A 12a. However, the court failed to point

to any characteristic in economy class seating that was

unusual, unexpected or abnormal to the operation of the

aircraft. The characteristics found significant by the court

below, a female who may fall asleep seated next to an

unknown male during a lengthy flight in a cabin with dimmed

lights, cannot be both unusual and unexpected in air

transportation and a characteristic of air travel.’ See Potter

v. Delta Airlines, Inc., 98 F.3d 881, 884 (Sth Cir. 1996).

Moreover, the court below failed to explain how the

characteristics of €conomy class seating in any event

“caused” passenger Park to assault passenger plaintiff

Wallace.

2. An Assaulting Passenger Surely Cannot Be

Considered a Characteristic Risk of Air Travel

The proper inquiry under the standard set forth by the

court below was whether passenger Park, who caused the

injury, was a characteristic risk of air travel. He was not.

As set forth by the First Circuit, the “risk” contemplated

by Article 17 must be unique to air travel, as distinct from

7. In fact, such seating is common in any mode of multiple

passenger transportation (e.g., bus, rail, subway) or public setting

where strangers are seated alongside each other in a confined space

and left “unsupervised in the dark” (e.g., movie theatre, concert,

university lecture hall). The Concurring Opinion noted that sitting

next to a stranger is “not so much a characteristic of air travel as it

is a characteristic of any form of public transportation.” A 14a, n.1.

any other mode of transportation or as to which transportation

by air is peculiarly susceptible. Hernandez v. Air France,

545 F.2d 279, 284 (1st Cir. 1976) (to impose liability under

the Convention, there should be a close logical nexus between

the injury and air travel per se); Evangelinos v. Trans World

Airlines, Inc., 550 F.2d 152, 157 (3d Cir. 1977) (terrorism

and hijacking closely associated with air transportation);

see also Day v. Trans World Airlines, 528 F.2d 31, 37-38

(2d Cir. 1975); Warshaw v. Trans World Airlines, Inc., 442

F. Supp. 400, 412 (E.D. Pa. 1977); Rullman v. Pan American

World Airways, 122 Misc. 2d 445, 447-49 (N.Y. Sup. Ct.

1983).

The risk of a sexual attack as alleged in this case is not

a “risk characteristic of travel by aircraft, but rather a risk

characteristic of living in a world such as ours.” Hernandez,

545 F.2d at 284. For this reason, until Wallace, each court

that has addressed the “accident” issue in the context of “risk”

has found that one passenger assaulting another passenger

is not a risk characteristic of air travel, and has declined to

impose Article 17 liability absent a showing that the airline

played causal role in the commission of the tort. See supra

note 5.

Under the rationale of the court below, virtually

any event on board an aircraft can be molded into a

“risk characteristic of air travel.” Saks and Article 17 plainly

cannot be read so expansively. The decision of the court

below conflicts with the First Circuit’s pre-Saks decision in

Hernandez, which makes clear that the “risk” falling within

the Warsaw Convention must be unique to aviation/air travel

(such as the circumstance where the “aircraft and the fact of

air travel are a prerequisite to the crime”), as opposed to any

other mode of transport or close encounter situation, and the

mii il

First Circuit’s post-Saks decision in Langadinos, which

upheld the express term of Article 17 that the airline’s act or

omission must have “caused” the damage so sustained.

B. An Article 17 “Accident” Cannot Be Found Where a

Passenger Concedes that No Act or Omission of the

Air Carrier Caused or Contributed to the Passenger’s

Injuries

The factual assumptions and findings as to how the attack

occurred and what could or should have been seen by

KAL were improperly set forth by the court below. A 13a.

Moreover, the court below failed to follow the Court’s

admonition in Saks that the “accident” requirement of

Article 17 involves “an inquiry into 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 407.

Indeed, the factual assumptions noted by the court below

(e.g., “nimbleness” of a passenger’s fingers) can in no way

properly serve as a foundation for air carrier liability.

Moreover, the lower court’s professed recognition that KAL

was unaware of the assault should have lead the court

to affirm the dismissal of the action against KAL because

post-assault conduct on the part of KAL necessarily cannot

serve as a predicate to liability for “damage sustained” as a

result of the assault.

There was only one cause of Wallace’s injury — that

cause was the criminal misconduct of passenger Park. There

was no Article 17 “accident.”

C. The Promulgation by the Court Below of a Perceived

Virtual Strict Liability Regime Conflicts With Saks

and Tseng

The court below resolved its “close question” whether a

sexual attack is an “accident” by being “mindful” of it

conclusion that a “virtual strict liability” regime has been

created by the Montreal Agreement. A 12a. The Court in

Saks, however, expressly held that the Montreal Agreement

is not relevant to the determination of the meaning of

an Article 17 “accident” because the Montreal Agreement

in no way modifies Article 17. Saks, 470 U.S. at 406-07

(“Our duty to enforce the “accident” requirement of Article .

17 cannot be circumvented by reference to the Montreal

Agreement of 1966").

Moreover, as the Court in recognized in E/ Al Israel

Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999), in the draft

provision of what is now Article 17, airline liability was

narrowed to encompass only “bodily injury” caused by an

accident. Jd. at 173; see Saks, 470 U.S. at 401-03. Just as it

was “improbable that, at the same time the drafters narrowed

the conditions of air carrier liability in Article 17, they

intended, in Article 24, to permit passengers to skirt those

conditions by pursuing claims under local law” (Tseng, 525

U.S. at 173), it is improbable that the drafters intended to

permit passengers to skirt those conditions by characterizing

as an “accident” a passenger’s harm caused by the conduct

of another passenger.

Accordingly, to the extent that the decision of the court

below stands for the proposition that a sexual assault by a

passenger is an “accident” because it is a risk characteristic

of air travel and, further, that recovery for a passenger’s

random assault of another passenger can be premised upon

the “virtual strict liability” created by the Montreal

Agreement, the decision is contrary to the Court’s decisions

in Saks and Tseng.

III.

THE DECISION OF THE COURT BELOW IS IN

DIRECT CONFLICT WITH THE. POST-RATI-

FICATION UNDERSTANDING OF THE MEANING

OF “ACCIDENT” BY THE CONTRACTING PARTIES

TO THE WARSAW CONVENTION

While the Court in Saks stated that its decision should

be “flexibly” applied and repeated this admonition in Tseng,

the Court did not intend to permit the lower courts to ignore

the intent of the contracting parties and their understanding

of what is or is not an “accident” within the scope of Article

17. Review is necessary, as the decision of the court below

directly conflicts with the parties’ post-1929 understanding

of the meaning of “accident.”

The Court has repeatedly stressed that in interpreting

the Warsaw Convention, it is proper to refer to the records

of its drafting and negotiation and the post-ratification

understanding of the contracting parties. See Tseng, 525 U.S.

at 167; Zicherman v. Korean Air Lines, 516 U.S. 217, 226

(1996); Saks, 470 U.S. at 400, 403.

The post-ratification conduct of the contracting parties

to the Warsaw Convention from 1949 to as recently as

May 1999 “clearly” confirms that the parties to the

Convention, including the United States, consistently have

considered that the ierm “accident” does not create air Carrier

liability for passenger-on-passenger assaults.

Shortly after the Warsaw Convention’s entry into force,

consideration was given by the Legal Committee of the

International Civil Aviation Organization (“ICAO”)

to replace the Article 17 term “accident” with “occurrence”

(as used in Article 18) (A 31a). At the ICAO Legal

Committee’s Fourth Session in Montreal in 1949, the

Committee decided to continue the distinction between

“accident” in Article 17 and “occurrence” in Article 18:

After considerable debate, the Sub-committee

decided to make reference to “accident” only in

para. (1) dealing with carriage of passengers, and

to “occurrerice” only in the case of the carriage

of cargo or baggage. Jt was agreed that the term

“occurrence” would be too broad, as applicable

to damage sustained in the event of the death of a

passenger or any bodily injury suffered by him,

as this expression would cover the case of

independent action among the passengers such

as an attack by one passenger upon another with

consequent bodily injury to the latter.

ICAO Legal Committee, Minutes and Documents of the

Fourth Session, Montreal, 7 June — 18 June 1949, Report

of the Sub-Committee on the Revision of the Warsaw

Convention, ICAO Doc. 6027-LC/124 at 270 (1949)

(emphasis added).

The question was again raised during the Twentieth

Meeting of the Eighth Session of the ICAO Legal Committee

in Madrid in 1951. The Belgian Delegate proposed to

substitute the word “occurrence” in order to broaden the

liability of the air carrier. ICAO Legal Committee, Minutes

and Documents of the Eighth Session, Madrid, 11 September

— 28 September 1951, ICAO Doc. 7229-LC/133 at 136-138

(1951). Several of the delegates, including the Chairman of

the U.S. delegation, Mr. Nunneley, opposed this change. Jd.

While the proposal was narrowly adopted, the circumstances

were explained in detail in the Report of Mr. Nunneley:

(1) Nature of event for which carrier liable.

(References: Article 6(1), 1951 draft; Article 17,

Warsaw Convention.) One change of substance

from the existing Convention was effected by

adoption by the Committee of the principle of

making the carrier liable for death or injury

resulting from an “occurrence” rather than from

an “accident”. The proponents of this change

urged that liability should not be limited to

instances where there had been an accident, but

also should exist in other situations which resulted

in injury or death. Those opposing the substitution

of “occurrence” for “accident”, which included

the United States, pointed out that thereby there

would be included many situations in which there

was no reason for imposing on the carrier the

burden of being held liable unless it proved that

it had taken all proper measures to avoid the

accident, since they would relate to matters not

necessarily within the carrier’s control. The

example of one passenger attacking another with

resulting bodily injury was pointed out. However,

the vote by which the Committee approved

“occurrence” was so small . . . that it seems clear

that the vote was not representative, and this

matter will have to be the subject of further

consideration in the Committee. It is believed that

further study should be directed to determining

in some detail the extent to which the use of

“occurrence” will in fact expand the situations in

which a carrier will be presumed negligent.

Report of the U.S. Delegation to the Eighth Session of the

Legal Committee of ICAO, Madrid, Spain, September 1951

at § (e)(1) (Emmory T. Nunneley, Jr., Chairman, U.S.

Delegation), excerpts reprinted in 19 J.A.L.C. 70, 79 (1952)

(emphasis added).

Then, at the Ninth Session of the ICAO Legal Committee

in Rio de Janeiro in 1953, the Belgian Delegate reversed his

position and advocated retention of the narrower term

“accident.” See ICAO Legal Committee, Minutes of the Ninth

Session, Rio de Janeiro, 25 August — 12 September 1953,

ICAO Doc. 7450-LC/136-1 at 71 (1954). The U.S. delegate,

now Mr. Calkins, consistent with the view expressed by his

predecessor, also advocated retention of the word “accident”:

Mr. Calkins (United States) said that one of the

questions that his Delegation had the most doubt

about in the Paris draft, was the substitution of

the word “occurrence” for the word “accident”.

The danger in using the word “occurrence” was

that this might possibly extend the liability of the

carrier to cases for which liability did not now

exist. To adopt the substitution would be a step

in the dark and, therefore, his Delegation was

opposed to this move. As to the example of failure

of the pressurization, that would seem to be

included within the word “accident”. However,

his Delegation was afraid that an attack by one

passenger against another might come within the

Warsaw Convention, if the proposed change were

made, and place liability where liability

heretofore did not belong.

Id. (emphasis added). The Committee voted to retain the term

“accident.” Jd. at 71.

When the diplomatic conference was convened in 1955

at The Hague to consider what eventually became the Hague

Protocol of 1955,* no changes were proposed to Article 17.

Thus, the framers of the 1955 Hague Protocol did not wish

to create carrier liability for passenger-on-passenger attacks.

It was not until the Guatemala City Protocol of 1971,°

which was never ratified by the United States, that an

amendment to Article 17 was approved that would impose

liability on the carrier for an “event” rather than for an

8. Protocol to Amend the Convention for the Unification of

Certain Rules Relating to International Carriage by Air Signed at

Warsaw 12 October 1929, Done at the Hague on 28 September 1955,

478 U.N.T.S. 371 (entered into force 1 August 1963). In November

1998, the United States ratified Montreal Protocol No. 4 (“MP4”),

which binds the United States to the Hague Protocol as amended by

MP4. MP4 came into force in the United States on March 4, 1999,

See Protocol to Amend the Convention for the Unification of Certain

Rules Relating to International Carriage by Air Signed at Warsaw

12 October 1929 as Amended by the Protocol Done at the Hague on

28 September 1955, Signed at Montreal on 25 September 1975,

ICAO Doc. No. 9148 (entered into force 14 June 1998).

9. Protocol to Amend the Convention for the Unification of

Certain Rules Relating to International Carriage by Air Signed at

Warsaw 12 October 1929 as Amended by the Protocol Done at the

Hague on 28 September 1955, Signed at Guatemala City, on 8 March

1971 ICAO Doc. No. 8932 (not in force).

“accident.” See ICAO, Documents of the International

Conference on Air Law, Guatemala City, ICAO Doc. 9040-

LC/167-2 at 189 (1972); see Saks, 470 U.S. at 403-04. While

this switch was viewed as expanding the scope of carrier

liability to passengers and creating a system of strict

liability,'® the Guatemala City Protocol of 1971 never came

into force.

In fact, the anomalous use of “event” is meaningless

since it is unlikely that the Guatemala City Protocol of 1971

ever will enter into force as ICAO recently adopted the

Convention for the Unification of Certain Rules for Carriage

by Air, signed at Montreal on 28 May 1999, DCW Doc. No.

57 (ICAO) (“Montreal Convention”), which is intended to

update and replace the “Warsaw System” of liability."'

10. It is noteworthy that this change was not without objections.

For example, the Italian delegate argued that the term “accident”

be retained in order to make clear that liability arises only in the

case of a “malfunction of service” or “abnormal event directly

connected with air transport operations.” Alternatively, he argued

that language be included stating that a carrier is not liable if death/

injury “result from an event unrelated to air transport operations.”

ICAO, Minutes of the International Conference on Air Law,

Guatemala City, ICAO Doc. 9040-LC/167-1 at 32-33, 44, 47-48

(1972) (the example given to support this change was “a dispute

between two passengers could arise on board the aircraft and result

in injury to one or both”); see also Comments of Austria (“It is now

suggested that the term “event” be substituted for the term

“accident.” This would mean that the air carrier would also be

considered liable .n the event, say, of a passenger killing another

passenger on board the aircraft without that event having any relation

to the service itself’). ICAO, Documents of the International

Conference on Air Law, Guatemala City, ICAO Doc. 9040-LC/167-

2 at 144 (1972).

11. While not yet in force, the Montreal Convention

was recently transmitted to the U.S. Senate for advice and consent

(Cont’d)

Article 17 of the Montreal Convention amends Article 17 to

read as follows:

1. The carrier is liable for damage sustained in

the case of the death or bodily injury of a

passenger upon condition only that the accident

which caused the death or bodily injury took place

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

operations of embarking or disembarking.

Article 17(1), Montreal Convention (emphasis added).

Significantly, the term “accident” is in the Montreal

Convention, as in the original Article 17.

If allowed to stand, the decision of the court below will

perpetuate an interpretation of “accident” in direct conflict

with the intent of the contracting states (see Lahey v.

Singapore Airlines, Ltd., 2000 U.S. Dist. LEXIS 14439

(S.D.N.Y. Oct. 5, 2000) (passenger injured by fellow

passenger following a seating dispute is an accident under

Wallace)) and in direct conflict with the interpretation of

“accident” by the First Circuit (see Langadinos).

(Cont'd)

to ratification. Message for the President of the United States

Transmitting The Montreal Convention, Treaty Doc. 106-45

(Sept. 6, 2000).

IV.

THIS IMPORTANT QUESTION OF FEDERAL

TREATY LAW SHOULD BE SETTLED BY THE

COURT SO THAT THE LOWER COURTS APPLY

ARTICLE 17 CONSISTENTLY TO THE AIR

CARRIERS OF THE WORLD OPERATING IN

THE UNITED STATES

The meaning of the term “accident” and whether a

passenger-on-passenger assault is an Article 17 “accident”

where airline personnel played no causal role in the

commission of the assault, involve important questions of

federal law that will arise in every passenger case whether

governed by the Warsaw Convention, the Convention as

amended by Montreal Protocol No. 4 or the Montreal

Convention of 1999. A threshold question that should be

addressed by a court before liability can be imposed under

any of these treaties is whether the airline caused the damage

so sustained. The court below has created an anomaly out of

step with decisions of other courts addressing liability for

passenger assaults and out of step with the intent of the

contracting parties as to the meaning of “accident.”

The finding by the court below that a sexual assault is a

risk of air travel also raises the practical considerations of

how to protect passengers against this newly found hazard.

The standard set forth by the court below ostensibly puts air

carriers on notice that the courts bound by decisions of the

Second Circuit will impose liability for damage sustained in

Warsaw Convention transportation unless the air carrier

segregates passengers according to gender (same sex assaults

remain problematic), seat female passengers in aisle seats

only, hire sufficient cabin crew to be able to provide constant

surveillance, eliminate closing of window shades during

in-flight movies and fly with the interior lights illuminated

at all times. A passenger-on-passenger assault was not the

type of “risk” for which the drafters of the Convention

intended to create liability. For this precise reason, the parties

to the treaty have retained the language that the injury must

be caused by an “accident” for over 70 years.

The Petition should be granted so that the Court may

provide definitive guidance to the lower courts as to the

proper application of the “accident” requirement under

Article 17, to correct the lower court’s manifest error,

to avoid inconsistent interpretations of the Convention and

to ensure that the Convention is applied by the lower courts

in the manner intended by the contracting states.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

ANDREW J, HARAKAS*

DIANE WESTWOOD WILSON

Conpon & ForsytH LLP

685 Third Avenue, 14th Floor

New York, New York 10017

(212) 894-6700

Attorneys for Petitioner

Korean Air Lines Co., Ltd.

* Counsel of Record

APPENDIX

INDEX TO APPENDIX

Opinion Of The United States Court Of Appeals For

The Second Circuit Dated And Decided June 6,

ET Bs CEN aly So Ren hy IND aKa Ee ana

Opinion And Order Of The United States District

Court For The Southern District Of New York

Dated April 5, 1999 And Filed April 6, 1999 ...

Order Of The United States Court Of Appeals For

The Second Circuit Denying Petition For

Rehearing Dated And Filed July 12,2000 .....

Relevant Provisions Of The Warsaw Convention Of

SE ok cas bw ehee heteecee CA oe

Page

17a

29a

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT DATED AND

DECIDED JUNE 6, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 1999

(Argued: December 1, 1999 Decided: JUN 6 2000)

Docket No. 99-7597

_ BRANDI WALLACE,

Plaintiff-Appellant,

ae oe

KOREAN AIR,

Defendant-Appellee.

Before: McLAUGHLIN, POOLER, SACK, Circuit Judges.

Brandi Wallace appeals from an order of the United

States District Court for the Southern District of New York

(Patterson, J/.), granting Korean Air Lines Co., Ltd. summary

judgment.

VACATED AND REMANDED.

Judge Pooler concurs by separate opinion.

* * *

McLAUGHLIN, Circuit Judge:

Plaintiff Brandi Wallace was sexually assaulted while

on a Korean Air Lines Co., Ltd. (““KAL”) international flight.

Her attacker was a fellow passenger. She sued KAL to

recover for the assault under the Warsaw Convention,' which

makes air carriers liable for passenger injuries caused by an

“accident.” Warsaw Convention Art. 17. The United States

District Court for the Southern District of New York

(Patterson, J.) dismissed the suit, concluding that the sexual

assault was not “a risk characteristic of air travel,” and

therefore was not an “accident” for purposes of the

Convention. Wallace v. Korean Air, No. 98 Civ. 1039, 1999

WL 187213, at *4-5 (S.D.N.Y. Apr. 6, 1999). Because we

disagree with that conclusion, we vacate and remand.

BACKGROUND

The facts are undisputed. On the evening of August 17,

1997, Brandi Wallace boarded KAL flight 61 in Seoul,

Korea, destination Los Angeles, California. It being the

middle of summer, Ms. Wallace wore a T-shirt and jean

shorts with a belt. Initially, the flight passed uneventfully.

Ms. Wallace was seated in a window seat in economy class,

and fell asleep shortly after finishing her in-flight meal.

Two male passengers sat between Ms. Wallace’s window

seat and the aisle of the airliner’s cabin. Seated closest to

Ms. Wallace was Mr. Kwang-Yong Park. Before she fell

1. Convention for the Unification of Certain Rules Relating to

International Transportation by Air concluded at Warsaw, Poland,

October 12, 1929, 49 Stat. 3000, T.S. No. 876, reprinted in 49 U.S.C.

§ 40105.

asleep, Ms. Wallace had neither spoken to Mr. Park, nor

given him the slightest indication that familiarity would be

welcome. Nevertheless, about three hours into the flight, Ms.

Wallace awoke in the darkened plane to find that Mr. Park

had unbuckled her belt, unzipped and unbuttoned her jean

shorts, and placed his hands into her underpants to fondle

her. Ms. Wallace woke with a start and immediately turned

her body toward the window causing Mr. Park to withdraw

his hands. When Mr. Park resumed his unwelcome amours,

however, Ms. Wallace recovered from her shock and hit him

hard. She then climbed out of her chair and jumped over the

sleeping man in the aisle seat to make her escape.

At the back of the plane, Ms. Wallace found a flight

attendant and complained about the assault. The attendant

reassigned her to another seat. When the plane arrived in

Los Angeles, Ms. Wallace told airport police about the

incident, and they arrested Mr. Park. He subsequently pled

guilty in the United States District Court for the Central

District of California to the crime of engaging in unwelcome

sexual conduct with another person in violation of 18 U.S.C.

§ 2244(b).

In February 1998, Wallace brought this action against

KAL in the United States District Court for the Southern

District of New York (Patterson, J.), alleging that KAL was

liable for Park’s sexual assault under the Warsaw

Convention, which applies to “all international transportation

of persons, baggage, or goods performed by aircraft for hire.”

Warsaw Convention Art. 1(1).? As modified by the Montreal

2. Wallace also asserted a common law claim for negligence.

However, the district court dismissed that claim relying on E/ Al

(Cont’d)

Agreement,’ the Warsaw Convention makes airlines liable

(up to a $75,000 limit per 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” from an international air flight. Warsaw

Convention Art. 17 (emphasis added); see Shah v. Pan Am.

World Servs., Inc., 148 F.3d 84, 92-93 (2d Cir. 1998).

Following discovery, Wallace moved for summary

judgment on her Warsaw Convention claim. The district

court denied the motion and dismissed that claim. Relying

on its reading of Air France v. Saks, 470 U.S. 392 (1985),

the district court reasoned that because the sexual assault

was not “a risk characteristic of air travel,” it therefore did

not constitute an “accident” for purposes of the Warsaw

Convention. See Wallace, 1999 WL 187213, at *4-5. Wallace

now appeals.

DISCUSSION

The proper interpretation of the Warsaw Convention is

an issue of law, which we review de novo. See Klos v. Polskie

Linie Lotnicze, 133 F.3d 164, 167 (2d Cir. 1997).

(Cont’d)

Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161 (1999) (“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.”) (internal

quotation marks, alteration and citation omitted). Wallace does not

appeal that dismissal.

3. Agreement Relating to Liability Limitations of the Warsaw

Convention and the Hague Protocol, CAB Agreement 189900,

approved, CAN Order No. E-23680, 31 Fed. Reg. 7302 (1966).

A brief history of the evolution of the liability regime

fostered by the Warsaw Convention will help to elucidate

the issue on this appeal. The Convention was drafted at two

international conferences, the first in Paris in 1925, and the

second in Warsaw in 1929. See Trans World Airlines, Inc. v.

Franklin Mint Corp., 466 U.S. 243, 246 (1984); see generally

Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1467-69 (11th

Cir. 1989) (reviewing history), rev'd on other grounds, 499

U.S. 530 (1991); Saks v. Air France, 724 F.2d 1383, 1385

(9th Cir. 1984) (same) rev'd on other grounds 470 U.S. 392

(1985). The United States became a Signatory in 1934.

See 78 Cong. Rec. 11,582 (1934); Trans World, 466 U.S. at

246-247.

The Convention had two goals: to establish uniform rules

for international air travel and to limit potential carrier

liability for passenger injuries so as not to frighten away

potential investors from the fledgling air industry. See Floyd,

872 F.2d at 1467 (citing Andreas F. Lowenfeld and Allan I.

Mendelsohn, The United States and The Warsaw Convention,

80 Harv. L. Rev. 497, 498-99 (1967) (other citations

omitted)); Saks, 724 F.2d at 1385. To achieve these goals,

the Convention capped the airlines’ potential liability to each

passenger at 125,000 gold french francs, or approximately

$8,300. See Warsaw Convention Art. 22; Floyd, 872 F.2d at

1467. At the same time, however, the Convention made the

airlines subject to Article 17, which provides in its entirety:

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.

Article 17 created what the courts have characterized as

a “presumption” that air carriers are liable for passenger

injuries. Jn re Air Crash Disaster at Warsaw, Poland, on

March 14, 1980, 705 F.2d 85, 87 (2d Cir. 1983); see Floyd,

872 F.2d at 1467 (same). There was a counterweight to the

presumption: carriers could avoid Article 17 liability

altogether by establishing the so-called “due care” defense

provided by Article 20(1). See Warsaw Convention Art. 20(1)

(“The carrier shall not be liable if he proves that he and his

agents have taken all necessary measures to avoid the damage

or that it was impossible for him or them to take such

measures.”’).

From the beginning, the United States was hostile to the

“stringent” limitations on liability imposed by the

Convention. Day v. Trans World Airlines, Inc., 528 F.2d 31,

36 (2d Cir. 1975). In particular, the $8,300 liability cap was

regarded as too stingy. See Day, 528 F.2d at 36. In November

1965, the United States announced its intention to withdraw

from the Warsaw system if an international agreement could

not be reached to raise the limits on liability. See 31 Fed.

Reg. 7302 (1966); Day, 528 F.2d at 36. This notice of

denunciation led to intense negotiations which ultimately

culminated in the Montreal Agreement of 1966. Through that

Agreement, the air carriers agreed to raise the limit of liability

to $75,000 for flights originating, terminating, or having a

stopping point in the United States. See Floyd, 872 F.2d at

1468 (citing Lowenfeld & Mendelsohn, 80 Harv. L. Rev. at

602). In addition, the carriers agreed to eliminate the “due

care” defense they had enjoyed under Article 20. See id.

The rationale for the new regime was straightforward.

In exchange for the cap on liability at the new level of

$75,000, the air carriers consented to a system under which

they assumed “virtual strict liability” for death or injury to

passengers. Jn re Korean Air Lines Disaster of Sept. 1, 1983,

932 F.2d 1475, 1485 (D.C. Cir. 1991). As Lowenfeld and

Mendelsohn, who represented the United States at Montreal,

explained, this arrangement made sense because: “[i]n terms

of distribution of risk, the carrier would seem, in nearly every

case, to be in the best position to .. . spread the risk most

economically” regardless of fault. 80 Harv. L. Rev. at

599-600. In sum, a fundamental reason for the abandonment

of the fault-based “due care” defense available under the

Warsaw Convention was to guarantee to passengers the

prospect of quicker and less expensive settlements. See id.

at 600.

The essential predicate of carrier liability is the

occurrence of an “accident” contemplated by Article 17 of

the Convention. The issue presented here is whether Park’s

sexual molestation of Ms. Wallace constituted such an

“accident.” We hold that it did.

A. Saks

Although the Convention itself does not define an

“accident,” the Supreme Court addressed the meaning of that

term in Air France v. Saks, 470 U.S. 392 (1985). There,

Valerie Saks sued an airline because she became deaf as a

result of changes in air pressure during a flight. After

extensive discovery established that the aircraft’s

pressurization system had operated in the usual manner, the

| district court dismissed the case, holding that Saks could

not recover under the Convention without evidence of some

malfunction in the aircraft’s operation. See Saks, 724 F.2d

at 1384 (summarizing district court holding).

On appeal, the Ninth Circuit rejected this rationale,

“hold[ing] that a showing of a malfunction or abnormality

in the aircraft’s operation is not a prerequisite for liability

under the Warsaw Convention.” Saks, 724 F.2d at 1384.

Reviewing the history of the Convention, the circuit court

emphasized that the air carriers had surrendered their due

care defense when they entered into the Montreal Agreement.

See id. at 1385-87. This contractual modification, the court

reasoned, imposed “absolute liability [on the air carriers]

for injuries proximately caused by the risks inherent in air

travel.” Jd. at 1384. Applying this standard of absolute

liability, the Ninth Circuit found that the normal

pressurization changes that caused Saks’s deafness

constituted an Article 17 “accident.”

The Ninth Circuit recognized that its absolute liability

approach differed from the approach adopted by the Third

Circuit. See id. at 1388 (citing DeMarines v. KLM Royal

Dutch Airlines, 580 F.2d 1193, 1196 (3rd Cir. 1978) (“If the

event on board an airplane is an ordinary, expected, and usual

occurrence, then it cannot be termed an accident. To

constitute an accident, the occurrence on board the aircraft

must be. . . an unusual or unexpected happening.”); Warshaw

v. Trans World Airlines, Inc., 442 F. Supp. 400, 412-413

(E.D. Pa. 1977) (normal cabin pressure changes are not

| “accidents” within the meaning of Article 17)).

The Supreme Court granted certiorari to resolve the

circuit split. See Air France v. Saks, 470 U.S. 392, 394

(1985). According to the Court, “the narrow issue presented”

was whether Saks could prove an “accident” for purposes of

the Convention “by showing that her injury was caused by

the normal operation of the aircraft’s pressurization system.”

Saks, 470 U.S. at 396. The Court’s answer to that question

was no.

The Court rejected as “not entirely accurate” the Ninth

Circuit’s characterization of the Montreal Agreement as

imposing “absolute” liability on air carriers. Jd. at 407. While

acknowledging that the carriers had waived their due care

defense by entering the Montreal Agreement, the Court

pointed out that “[t]hey did not waive other provisions in

the Convention that operate to qualify liability, such as .. .

the ‘accident’ requirement of Article 17.” Jd.

In addressing what constitutes an “accident,” the

Supreme Court essentially adopted the Third Circuit’s

language, defining the term as an injury “caused by an

unexpected or unusual event or happening that is external to

the passenger.” Jd. at 405. The Court announced that “[tJhis

definition should be flexibly applied” and, as examples, cited

with approval to “lower courts in this country [that] have

interpreted Article 17 broadly enough to encompass torts

committed by terrorists or fellow passengers.” Jd. (citing

cases). With respect to Saks herself, however, the Court

concluded that no accident had occurred because her deafness

indisputably resulted from her own “internal reaction to the

usual, normal, and expected operation of the aircraft.” This

was no “accident.” Jd. at 406.

10a

B. The Instant Case

Courts have wrestled with the Saks definition of

“accident” since it was announced. That struggle is

particularly difficult in cases like ours where the putative

injuries are caused by torts committed by fellow passengers.

In one camp, courts hold that an “accident” under Article

17 must arise from “such risks that are characteristic of air

travel.” Stone v. Continental Airlines, Inc., 905 F. Supp. 823,

827 (D. Haw. 1995) (injury caused by being punched without

provocation by another passenger not an accident because it

was not “derived from air travel”); (quoting Price v. British

Airways, No. 91 Civ. 4947, 23 Av. Cas. 18465, 1992 WL

170679, at *3 (S.D.N.Y. July 6, 1992) (injury caused by a

fistfight between two passengers not an “accident” because

“a fracas is not a characteristic risk of air travel nor may

carriers easily guard against such a risk through the

employment of protective security measures.”)); see Curley

v. American Airlines, Inc., 846 F. Supp. 280, 283 (S.D.N.Y.

1994) (same standard).

Ancther camp has cast a wider net. For example, in

Barratt v. Trinidad & Tobago (BWIA Int'l) Airways Corp.,

No. CV 88-3945, 1990 WL 127590 (E.D.N.Y. Aug. 28,

1990), the court rejected the contention that a stumble and

fall inside an airline terminal could never come within the

scope of Article 17 because such an accident is not caused

by a risk inherent in aviation. The court reasoned:

In Air France v. Saks, 470 U.S. 392, 405 (1985),

the Supreme Court held that an “accident,” for

purposes of Article 17, is an injury caused by “an

unexpected or unusual event or happening that is

lla

external to the passenger.” This definition is in

no way limited to those injuries resulting from

dangers exclusive to aviation. [Article 17] itself

limits liability for accidents, not by reference to

risks inherent in aviation, but by whether they

occur “on board the aircraft or in the course

of any of the operations of embarking or

disembarking.”

Barratt, 1990 WL 127590 at *2. Obviously, under this

reading of Saks, an airline presumably would be liable for

all passenger injuries, including those caused by

co-passenger torts, regardless of whether they arose from a

characteristic risk of air travel.

This Circuit has yet to choose definitively between these

competing interpretations of the term “accident.” The issue

is not an easy one, for as one of our sister circuits has noted,

the Saks opinion does not make it “clear whether an event’s

relationship to the operation of an aircraft is relevant to

whether the event is an ‘accident.’ ” Gezzi v. British Airways

PLC, 991 F.2d 603, 605 n.4 (9th Cir. 1993). To be sure, in

the lower court cases cited with approval in Saks, all the

passenger injuries seem to have arisen out of risks that are

inherent to air travel, or out of the operation of the aircraft

itself. See Saks, 470 U.S. at 405 (citing Evangelinos v. Trans

World Airlines, Inc., 550 F.2d 152 (3rd Cir. 1977) (en banc)

(terrorist attack); Day v. Trans World Airlines, Inc., 528 F.2d

31 (2d Cir. 1975) (same); Krystal v. British Overseas Airways

Corp., 403 F. Supp. 1322 (C.D. Cal. 1975) (hijacking); Oliver

v. Scandinavian Airlines Sys., 17 CCH Av. Cas. 18,283

(D. Md. 1983) (drunken passenger who was continually

served alcohol fell and injured fellow passenger)). Despite

these citations, however, the Saks court did not address

12a

whether an event must relate to air travel to be an Article 17

“accident.” Instead, the Saks opinion expressly limited itself

to the “narrow issue” of whether the “normal” (as opposed

to abnormal) operation of an aircraft could give rise to an

“accident.’”* Saks, 470 U.S. at 396 (emphasis added).

Happily, this Talmudic debate is academic in the unique

circumstances of this case. Indeed, we have no occasion to

decide whether all co-passenger torts are necessarily

accidents for purposes of the Convention. This is so because

we conclude that an Article 17 “accident” occurred here even

under the narrower characteristic risk of air travel approach.

Though a close question, we reach that conclusion mindful

of the “virtual strict liability” imposed on air carriers by the

Warsaw regime, Jn re Korean Air Lines, 932 F.2d at 1485,

and in deference to the Saks Court’s admonition to interpret

the term “accident” both “flexibly” and “broadly.” 470 U.S.

at 405.

Turning to the particular facts that give rise to an

“accident” in this case, it is plain that the characteristics of

air travel increased Ms. Wallace’s vulnerability to Mr. Park’s

assault. When Ms. Wallace took her seat in economy class

on the KAL flight, she was cramped into a confined space

beside two men she did not know, one of whom turned out

4. This language, which expressly limits the scope of the

Court’s holding, clearly was chosen carefully. As Humpty Dumpty

explained to Alice: “When I use a word ... it means just what

I choose it to mean — neither more nor less.” Lewis Carroll, Through

the Looking-Glass ch. 6 at 106-09 (Schocken Books 1987) (1872).

Thus, while we share our concurring colleague’s preference for

simplicity, we cannot agree that Saks resolved (“implicitly” or

otherwise) the issue of whether all co-passenger torts must be

“accidents.” Neither do we see any need to address that issue today.

13a

to be a sexual predator. The lights were turned down and the

sexual predator was left unsupervised in the dark. It was then

that the attack occurred.

Equally important was the manner in which Mr. Park

was able to carry out his assault. While Ms. Wallace lay

sleeping, Mr. Park: (1) unbuckled her belt; (2) unbuttoned

her shorts; (3) unzipped her shorts; and (4) squeezed his

hands into her underpants. These could not have been five-

second procedures even for the nimblest of fingers. Nor could

they have been entirely inconspicuous. Yet it is undisputed

that for the entire duration of Mr. Park’s attack not a single

flight attendant noticed a problem. And it is not without

significance that when Ms. Wallace woke up, she could not

get away immediately, but had to endure another of Mr.

Park’s advances before clambering out to the aisle.

In sum, recognizing the flexibility called for by Saks,

we are satisfied that Mr. Park’s assault on Ms. Wallace was,

in the language of Saks, “an unexpected or unusual event or

happening that [was] external to the passenger.” 470 U.S. at

405. As such, it constituted an “accident” for purposes of

Article 17 of the Warsaw Convention.

CONCLUSION

The district court’s decision that Mr. Park’s assault of

Ms. Wallace did not constitute an “accident” under Article

17 of the Convention is VACATED and this case is

REMANDED for further proceedings. We express no opinion

on any other aspect of Ms. Wallace’s Warsaw Convention

claim.

l4a

POOLER, Circuit Judge, concurring:

I concur in the result and in the majority’s able discussion

of the Warsaw Convention, but I write separately because

I would decide the case on a ground the majority avoids. At

issue in this case is whether a tort committed by a fellow

passenger constitutes an “accident” under Article 17 of the

Warsaw Convention. The district court dismissed the case

holding that airlines are only “liable for torts that are

proximately caused by the abnormal or unexpected operation

of the aircraft ... the abnormal or unexpected conduct of

airline personnel,” or that involve “a risk characteristic of

air travel.” Wallace v. Korean Air, No. 98 Civ. 1039, 1999

WL 187213 *4 (S.D.N.Y. Apr. 6, 1999). The majority now

reverses, assuming without deciding that the district court’s

interpretation of “accident” was correct, but holding that the

sexual assault Wallace suffered met that definition — a

factual issue neither briefed nor argued by counsel. I would

reverse in more straightforward fashion, because I believe

that the lower court’s holding contradicts Supreme Court

precedent. We need not reach the complicated, always fact

laden, and irrelevant question of what constitutes a risk

characteristic of air travel.'

Imposing an “inherent in air travel” requirement does

not comport with the plain meaning of the Supreme Court’s

decision in Air France v. Saks, 470 U.S. 392 (1985).

1. For example, one might argue that being strapped into one’s

seat next to a stranger is not so much a characteristic of air travel as

it is a characteristic of any form of public transportation. If we adopt,

even provisionally, the district court’s approach, an even more

“Talmudic” question arises than the one the majority avoids: how

associated with air travel need a hazard be before it can fairly be

described as “characteristic”?

15a

A cO-passenger’s tort satisfies the Supreme Court’s

interpretation of “accident” as “an unexpected or unusual

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

the Court did not also include a “characteristic of air travel”

requirement in the definition. See Saks, 470 U.S. at 405.

Although the Court stated that its definition should “be

flexibly applied,” id., the Court did not thereby authorize

courts to add more hurdles for a plaintiff to overcome. Rather,

the Court approved lower court decisions that had already

read Article 17 “broadly enough to encompass torts

committed by terrorists or fellow passengers.” /d. (citing

cases). When the Supreme Court partially restated its

holding, it again avoided any mention of the inherent risks

of air travel: “[a]ny 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.” Jd. at 406. What the Court left to

district courts to decide is “whether an ‘accident’ as here

defined caused the passenger’s injury.” Jd. The majority

mistakes this for an invitation to decide what is an accident.

The context of the Court’s holding in Saks also supports

the view that “characteristic of air travel” is not a necessary

element of an Article 17 accident. Valerie Saks’s unfortunate

left-ear deafness was caused by the normal operation of the

airplane pressurization System. Article 17 of the Warsaw

Convention makes air carriers liable for injuries sustained

by a passenger, “if the accident which caused the damage so

sustained took place on board the aircraft... .” At the district

court, Air France argued that “accident” means an “abnormal,

unusual or unexpected occurrence” aboard the aircraft.

See Saks, 470 U.S. at 395. Ms. Saks argued for a “hazard of

air travel” definition. See id. The district court agreed with

Air France. The Ninth Circuit disagreed and concluded that

16a

absolute liability attached “for injuries proximately caused

by the risks inherent in air travel.” Saks v. Air France, 724

F.2d 1383, 1384 (9th Cir. 1984) rev'd 470 U.S. 392 (1985).

I recite this history to put in context the two competing

constructions the Court had before it when it held, “We

conclude that liability under Article 17 of the Warsaw

Convention arises only if a passenger’s injury is caused by

an unexpected or usual event or happening that is external

to the passenger.” Saks, 470 U.S., at 405. The Court adopted

the view advanced by Air France at the district court and

rejected the view advanced by Ms. Saks — the “inherent in

air travel” view. Conspicuously absent from the Court’s

decision is language concerning air travel and its inherent

risks. Nonetheless, the district court in this case saw fit to

engraft an “inherent in air travel” requirement into the Saks

test when it dismissed Ms. Wallace’s claim. The majority,

like the district court, fails to recognize that the Supreme

Court has already implicitly rejected that interpretation.

The majority concludes that we need not reach the

interpretation of “accident,” and that we should not do so.

I disagree, because I believe the Supreme Court has spoken

to the issue and resolved it. We, therefore, have an obligation

to address the Supreme Court’s interpretation of Article 17.

Saks is the law as explained to us by the Court, and it is our

duty to implement the Court’s articulation of Article 17, not

the district court’s. This duty looms especially large since

other courts have misinterpreted Article 17 and Saks. In the

instant case, the district court’s addition of a prong to the

definition demonstrates the need for a clearly understood

rule in our circuit. Our decision today will leave district

courts wondering what to do in future cases with respect to

a question the Supreme Court has already answered.

17a

OPINION AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF NEW YORK DATED APRIL 5, 1999

AND FILED APRIL 6, 1999

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

98 Civ. 1039 (RPP)

BRANDI WALLACE,

Plaintiff,

— against —

KOREAN AIR,

Defendant.

OPINION AND ORDER

* * &

ROBERT P. PATTERSON, JR., U.S.D.J.

Plaintiff Brandi Wallace (“Wallace”) has brought suit

against defendant Korean Air alleging that it is liable for a

sexual assault' she sustained during an international flight

1. Plaintiff claims that she was subjected to unwelcome sexual

contact, which would constitute a battery under New York civil law.

See United Nat'l Ins. v. Waterfront New York Realty Corp., 994

F.2d 105, 108 (2d Cir. 1993); Pope v. State, 192 Misc. 587, 593,

79 N.Y.S.2d 466, 471 (Ct. Cl. 1948), aff'd, 277 A.D. 1015, 99

N.Y.S.2d 1019 (1950).

18a

under the common law of negligence and under the Warsaw

Convention,” as modified by the Montreal Agreement.’

Pursuant to Rule 56 of the Federal Rules of Civil Procedure,

plaintiff has moved for partial summary judgment on the

issue of defendant’s liability under the Warsaw Convention.

For the reasons that follow, plaintiff's motion is denied and

its claim under the Warsaw Convention is dismissed.

FACTUAL BACKGROUND

On August 17, 1997, plaintiff was a passenger on Korean

Air Flight 61 from Seoul, Korea to Los Angeles, California

(Plaintiff's Statement of Facts (hereinafter “Pl.’s 56.1

Statement’’) FJ 2-3; Defendant’s Rule 56.1 Statement of

Material Facts as to Which There is no Genuine Issue to be

Tried (hereinafter “Def.’s 56.1 Statement”) ¢ 1). Plaintiff

was seated in seat 43K, a window seat, and slept during the

flight (Def.’s 56.1 Statement ff 2, 10; Deposition of Brandi

Wallace (hereinafter “Wallace Dep.”)* at 10, 16). Plaintiff

awoke to find that Kwang-Yong Park (“Park’’), the passenger

in the adjacent seat, 43J, had unbuckled plaintiff's belt,

unbuttoned and unzipped her shorts, and placed his hand in

plaintiff's underwear to fondle her genitals (Wallace Dep.

at 20-21; Affidavit of Brandi Wallace (hereinafter “Wallace

2. Convention for the Unification of Certain Rules to

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

T.S. No. 876, note following 49 U.S.C.A. § 40105 (1997).

3. Agreement Relating to Liability Limitations of the Warsaw

Convention and the Hague Protocol Agreement CAB 18900,

approved by Executive Order No. 23,680, 31 Fed. Reg. 7302 (1966).

4. The Wallace Deposition has been submitted to the Court as

Exhibit A to the Affidavit of George N. Tompkins, III.

19a

Aff.”)° ¥¥ 3-4). Prior to this incident, Park had neither spoken

to plaintiff nor given plaintiff any indication that unwelcome

sexual conduct was likely to occur, and plaintiff did not

complaint to Korean Air attendants about Park at any time

before the accident occurred (Wallace Dep. at 15-17, 37-39).

Park subsequently pleaded guilty to the crime of

engaging in sexual conduct with another person without that

person’s permission, in violation of 18 U.S.C. § 2244(b),

and he was sentenced to two years probation by the United

States District Court for the Central District of California

(Pl.’s 56.1 Statement, Ex. 2).

Plaintiff initiated this action against Korean Air by filing

a complaint on February 13, 1998. Plaintiff filed the present

motion for partial summary judgment on June 22, 1998.

DISCUSSION

A. Standard for Granting Summary Judgment:

Summary judgement is appropriate when “there is no

genuine issue of material fact to be tried and the facts as to

which there is no issue warrant judgment for the moving

party as a matter of law.” Chambers v. TRM Copy Crtrs.

Corp., 43 F.3d 29, 36 (2d Cir. 1994); Fed. R. Civ. P. 56(c);

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986). The interpretation of an international treaty such as

the Warsaw Convention is an issue of law which can be

resolved on summary judgment. See CPH Int’l, Inc. y.

Phoenix Assurance Co., No. 92 Civ. 2729 (SS) (NRB), 1994

5. The Wallace Affidavit has been submitted to the Court as

Exhibit 1 to the Affidavit of Frank H. Granito, III.

20a

WL 259810, at *17 n.3 (S.D.N.Y. June 9, 1994); Upton v.

Iran Nat'l Airlines Corp., 450 F. Supp. 176, 178 (S.D.N.Y.

1978), aff'd without opinion, 603 F.2d 215 (2d Cir. 1979).

B. Applicable Law

Plaintiff's first cause action, on which she seeks

summary judgment, is governed by the Warsaw Convention

since plaintiff was in the course of international

transportation by air as required by Article 1(1), and as

defined by Article 1(2), of the Warsaw Convention.® The

circumstances under which an air carrier may be liable to

passengers on international flights are set forth by Article

17 of the Warsaw Convention:

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.

49 Stat. at 3018. In other words, a passenger seeking to hold

a carrier liable for injury must establish that (1) there has

been an accident in which (2) the passenger suffered death,

wounding or bodily injury, and (3) the accident took place

on board the aircraft or in the course of operations of

6. Article 1(1) states that the Convention applies “to all

international transportation of person, baggage, or goods performed

by aircraft for hire.” 49 Stat. at 3014. Article 1(2) states that

“international transportation” includes any transportation in which

“the place of departure and the place of destination . . . are situated

... Within the territories of two High Contracting Parties.” Jd.

2ila

embarking or disembarking. See Eastern Airlines, Inc. v.

Floyd, 499 U.S. 530, 535-36 (1991).

Since defendant does not dispute that plaintiff was

molested by a fellow passenger while asleep on board its

aircraft, the issue to be resolved is whether the molestation

which caused plaintiff's injury is an “accident” giving rise

to liability under Article 17 of the Warsaw Convention.

In Air France v. Saks, the Supreme Court provided a

flexible definition of the term “accident” and concluded:

[L]iability under Article 17 of the Warsaw

Convention arises only if a passenger’s injury is

caused by an unexpected or unusual event or

happening that is external to the passenger. This

definition should be flexibly applied after

assessment of all the circumstances surrounding

a passenger’s injuries.

470 U.S. 392, 405 (1985). The Court rejected the position

of the Court of Appeals for the Ninth Circuit that the Warsaw

Convention, as amended by the Montreal Agreement,

imposes absolute liability on airlines for all injuries

proximately cause by the risks inherent in air travel. See id.

at 396. Because the “narrow issue presented” was framed

by plaintiff's injury, permanent deafness in her left ear caused

by the normal operation of the flight, see id. at 394, 396, the

Court in Saks held only that “when the injury indisputably

results from the passenger’s 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 does not apply.” /d. at 406.

22a

The Supreme Court observed, without disapproval, that

“lower courts in this country have interpreted Article 17

broadly enough to encompass torts committed by terrorists

or fellow passengers.” 470 U.S. at 405. However, because it

stated that the definition of “accident” “should be flexibly

applied after assessment of all the circumstances surrounding

a passenger’s injuries,” id., the Court did not endorse a

per se rule of air carrier liability for the torts of fellow

passengers. In E/ Al Israel Airlines, Ltd. v. Tseng, the Court

ruled that the plaintiff could not maintain an action for

personal injury under local law when her claim did not satisfy

the conditions for liability under the Warsaw Convention,

but it reiterated, in a lengthy footnote, that the definition of

“accident” set forth in Saks should be flexibly applied. 119

S. Ct. 662, 670 n.9 (1999). Accordingly, the fact that a sexual

molestation on an airplane is “an unexpected or unusual

event” and a “tort by a fellow passenger” does not foreclose

inquiry into the circumstances surrounding plaintiff's injuries

to determine whether it is appropriate to find that plaintiff

was the victim of an “accident” within the meaning of the

Warsaw Convention.

In the lower court rulings cited by the Supreme Court in

Saks as cases interpreting Article 17 to include torts by fellow

passengers, the injuries arose out of the failures of air carriers

to provide protection for recognized dangers to air

passengers. See Evangelinos v. Trans World Airlines, Inc.,

550 F.2d 152 (3rd Cir. 1977) (terrorist attack); Day v. Trans

World Airlines, Inc., 528 F.2d 31 (2nd Cir. 1975) (en banc)

(same), cert. denied, 429 U.S. 890 (1976); Krystal v. British

Overseas Airways Corp., 403 F. Supp. 1322 (C.D. Cal. 1975)

(hijacking); Oliver v. Scandinavian Airlines Sys., 17 CCH

Av. Cas. 18,283 (D. Md. 1983) (drunken passenger fell and

injured fellow passenger). Terrorism and hijacking are,

23a

unfortunately, recognized risks associated with air travel.

See Curley v. American Airlines, Inc., 846 F. Supp. 280, 283

(S.D.N.Y. 1994) (“On the theory that hijackings and terrorist

attacks are risks characteristic of air travel, liability under

the Convention has been expanded to include injuries

resulting from such attacks.”); Price v. British Airways,

No. 91 Civ. 4947 (JFK), 1992 WL 170679, at *3 (S.D.N.Y.

July 7, 1992) (“[T]he fundamental premise relied upon by

the courts to expand carrier liability to include hijackings

and terrorist attacks is that such risks are characteristic of

air travel.”). The only case cited by the Supreme Court that

did not involve a terrorist attack or hijacking, Oliver v.

Scandinavian Airlines System, dealt with an intoxicated

passenger who had been served drinks by the defendant air

carrier and who subsequently fell and injured a fellow

passenger. 17 CCH Av. Cas. 18,283, 18,284 (D. Md. 1983)

(noting, though with little elaboration of the facts, that the

“cause” of the accident was the continued availability of

alcohol on the plane).

Subsequent to Saks, lower courts have reaffirmed that

terrorist acts and hijacking constitute accidents under Article

17, see, e.g., Pflug v. Egyptair Corp., 961 F.2d 26, 29

(2d Cir. 1992), and found liability in cases where the

operation of the aircraft or acts or omissions by airline

personnel have furthered injuries by fellow passengers,

see, e.g., Tsevas v. Delta Air Lines, Inc., No. 97 C. 0320,

1997 WL 767278, at *3-*4 (N.D. Ill. Dec. 1, 1997) (carrier

held liable for sexual assault caused in part by continued

service of alcohol to drunken passenger and deliberate refusal

of flight attendants to respond to requests for help); Schneider

v. Swiss Air Transp. Co., 686 F. Supp. 15, 17 (D. Me. 1988)

(carrier held liable for injury caused by full recline of fellow

passenger’s seat when plaintiff sought and was denied

24a

assistance by airline’s personnel). Courts have focused on

whether the cause of injury is “a characteristic risk of air

travel,” Curley, 846 F. Supp. at 293, or whether it bears a

“relation to Defendant’s operation of the aircraft,” Price,

1992 WL 170679, at *3. In Curley, “the highly unusual

happenstance” of being detained and searched by Mexican

authorities after being identified, allegedly falsely, by the

plane captain as smoking marijuana in the airplane lavatory

was found to be “hardly a characteristic risk of air travel,”

and not an “accident” within the meaning of Article 17. 846

F. Supp. at 283. In Price, a passenger exchanged words with

another passenger in the rear of the aircraft and subsequently

was punched in the face and suffered a bloody nose; the court

reasoned that “[s]uch a fracas is not a characteristic risk of

air travel nor may carriers easily guard against such a risk

through the employment of protective security measures,”

and found that the incident was not an “accident.” 1992 WL

170679, at *3. Similar injuries unrelated to the foreseeable

risks of air travel and unrelated to the operation of aircraft

have likewise been found to fall outside the scope of Article

17. See, e.g., Stone v. Continental Airlines, Inc., 905 F. Supp.

823, 827 (D. Haw. 1995) (plaintiff punched by fellow

passenger); Pitman v. Grayson, 869 F. Supp. 1065, 1071

(S.D.N.Y. 1994) (airline personnel assisted smuggling of

plaintiff's minor child who was subject of custody dispute);

Levy v. American Airlines, No. 90 Civ. 7005 (LJF), 1993

WL 205857, at *4(S.D.N.Y. June 9, 1993) (plaintiff suffered

injuries at hands of Drug Enforcement Administration agents

in course of his extradition from Egypt on narcotics charges),

aff'd, 22 F.3d 1092 (2d Cir. 1994).

In other cases where the air carrier has facilitated a tort

by a fellow passenger, or committed a tort itself, courts have

held that such conduct is an “unexpected event” falling within

25a

the Saks definition of an “accident.” Tsevas, 1997 WL

767278, at *3 (continued service of alcohol to plaintiff's

assailant and refusal to change plaintiff's seat); see also

Fishman vy. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir.

1998) (scalding injuries suffered when stewardess applied

hot compress to relieve earache “in a way (using excessive,

scalding water) that was not expected, usual, normal, or

routine”); Laor v. Air France, 31 F. Supp. 2d 347, 350

(S.D.N.Y. 1998) (injuries caused by attendant’s forcing open

door of lavatory occupied by plaintiff in response to smoke

alarm sounded in lavatory found to be produced by “accident”

because “a smoke alarm does not routinely sound during the

operation of an aircraft” and “[t]he opening of a locked

lavatory door cannot be described as anything other than

“unexpected and unusual’ ”); Waxmar. v. C.1.S. Mexicana

De Aviacion, S.A. de C.V., 13 F. Supp. 2d 508, 512 (S.D.N.Y.

1998) (airline’s failure to remove hypodermic needle from

seat cushion “may safely be viewed as an unusual,

unexpected departure from ordinary procedures” and

resultant injury “is properly deemed to have resulted from

an ‘accident’ ”). These cases rest on the same theory as the

Oliver case cited by the Supreme Court in Saks — that is,

that air carriers should be liable for torts that are proximately

caused by the abnormal or unexpected operation of the

aircraft or the abnormal or unexpected conduct of airline

personnel.

C. Application of Article 17 to Plaintiff's Claim

In this case, there was no act or omission by the aircraft

or airline personnel representing a departure from the normal,

expected operation of a flight. Plaintiff testified that prior to

falling asleep and being sexually molested, she did not speak

with Park, her assailant, was not touched by him in an

iinet...

26a

offensive manner, and did not complain about him to Korean

Air personnel or anyone else (Wallace Dep. at 15-17, 37).

There is no evidence that defendant had served Park sufficient

alcohol to make him drunk.’ Plaintiff stated that prior to

falling asleep, she had no indication that Park was going to

molest her, and felt no cause to be concerned for her safety

(id. 38-39). After plaintiff was molested, she complained to

a Korean Air c:#w member and he immediately reassigned

her to a new séat (id. 26). The record reveals no act or

omission by defendant which had any connection to

plaintiff's injuries and which might lead to a finding that

| plaintiff's injuries were the result of an “accident” within

| the meaning of Article 17.* Cf. Tsevas, 1997 WL 767278, at

*3-4 (sexual assault by fellow passenger does constitute

“accident” when flight crew not only continued to serve

7. Plaintiff testified that prior to the meal served one hour after

take-off, Park had one glass of wine, and that “through the meal

I think he had two glasses of wine” (Wallace Dep. at 14). Plaintiff

was sexually molested two-and-a-half to three hours after take off

(id. at 13). Plaintiff did not testify that Park was drunk when he

molested her (id. at 42).

8. In her complaint, plaintiff stated on information and belief

that after she boarded the flight but before the flight took off, Park

was instructed by the cabin crew to change seats and was given a

seat next to plaintiff's (Compl. | 8). However, plaintiff testified to

the contrary in her deposition, stating that when she boarded the

flight and arrived at her seat, Park was already sitting there (Wallace

Dep. at 10-12), and neither her affidavit nor her 56.1 Statement

resurrect the claim that defendant’s crew asked Park to change seats.

In any case, because there is no evidence that defendant (or anyone

else) had any reason to be suspicious of Park, any seat reassignment

would represent the expected, normal, and routine practice of airline

operation, reasonably carried out, rather than an “accident” within

the meaning of Article 17.

27a

assailant alcohol after plaintiff complained that assailant was

drunk, but also refused to move plaintiff when she

complained about assailant’s unwanted advances).

Moreover, sexual molestation such as that alleged by

plaintiff is not a risk characteristic of air travel or related to

the operation of an airplane, and air carriers are not in a

special position to develop defensive measures or insure

against such incidents. Cf. Gotz, 12 F. Supp. 2d at 204 (“An

event cannot fall within the operation of the aircraft if that

event is not within the airline’s purview or control.”); Price,

1992 WL 170679, at *3 (contrasting fistfight between

passengers to terrorist attacks and hijackings, which are

“risks characteristic of air travel” against which “carriers are

in the best position to guard”).

Finally, plaintiff's argument that airlines are subject to

absolute liability on the basis of the Montreal Agreement is

inconsistent with Saks and must be rejected. As stated in

Saks, “Our duty to enforce the ‘accident’ requirement of

Article 17 cannot be circumvented by reference to the

Montreal Agreement of 1966.” 470 U.S. at 406. While the

parties to the Montreal Agreement consented to the waiver

of “due care” defenses under Article 20(1) of the Warsaw

Convention, “they did not waive other provisions in the

Convention that operate to qualify liability, such as . . . the

‘accident’ requirement of Article 17.” Jd. at 407.

Plaintiff's misfortune may have occurred on defendant’s

airplane, but an assessment of the circumstances surrounding

her injuries shows that they did not result from an “accident”

within the meaning of Article 17 of the Warsaw Convention.

CCC

28a

| CONCLUSION

For the foregoing reasons, plaintiff's motion for

summary judgment is denied. Because defendant requested

dismissal of the complaint (Defendant’s Memorandum of

Law in Opposition to Plaintiff's Motion for Partial Summary

Judgment at 3, 9) and plaintiff did not oppose this request

except by contesting defendant’s interpretation of the

Warsaw Convention, and because there are no genuine issues

of material fact barring dismissal, plaintiff's first cause of

action based on the Warsaw Convention is dismissed. The

parties may, if they choose, submit briefs to the Court

| addressing the impact of the Supreme Court’s recent decision

| in El Al Israel Airlines, Ltd. v. Tseng, 119 S. Ct. 662 (1999),

upon plaintiff's remaining cause of action. If no brief is

received from plaintiff by April 25, 1999, plaintiff’s

remaining claim will be dismissed and this case will be

closed.

IT IS SO ORDERED.

Dated: New York, New York

April 5, 1999

s/ Robert P. Patterson, Jr.

Robert P. Pattersoi:. Jr.

U.S.D.J.

29a

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT DENYING

PETITION FOR REHEARING DATED

AND FILED JULY 12, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

ROSEANN B. MACKECHNIE

CLERK

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 12 day of

July two thousand.

Dkt No: 99-7597

Wallace

Plaintiff-Appellant,

Korean Air

Defendant-Appellee.

A petition for panel rehearing and a petition for rehearing

en banc having been filed herein by the appellee Korean Air.

30a

Upon consideration by the panel that decided the

appeal, it is Ordered that said petition for

rehearing is DENIED.

It is further noted that the petition for rehearing en banc has

been transmitted to the judges for the court in regular active

service and to any other judge that heard the appeal and that

no such judge has requested that a vote be taken thereon.

FOR THE COURT

ROSEANN B. MACKECHNIE,

Clerk

By: s/ Beth J. Meador

Beth J. Meador,

Administrative Attorney

3la

RELEVANT PROVISIONS OF THE

WARSAW CONVENTION OF 1929

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.

49 Stat. 3018.

Article 18(1)

The carrier shall be liable for damage sustained

in the event of the destruction or loss of, or of

damage to, any checked baggage or any goods, if

the occurrence which caused the damage so

sustained took place during the transportation by

air.

49 Stat. 3019.

Article 20(1)

The carrier shall not be liable if he proves that he

and his agents have taken all necessary measures

to avoid the damage or that it was impossible for

him or them to take such measures.

49 Stat. 3019.

32a

EXCERPTS FROM BRIEF FOR

PLAINTIFF-APPELLANT

99-7597

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRANDI WALLACE,

Plaintiff-Appellant,

— against —

KOREAN AIR,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT

OF NEW YORK

BRIEF FOR PLAINTIFF-APPELLANT

FRANK H. Granito, III

FRANK H. GRANITO, JR.

JOHN J. HALLORAN, JR.

SPEISER, KRAUSE, NOLAN & GRANITO

Attorneys for Plaintiff-Appellant

140 East 45th Street

New York, New York 10017

(212) 661-0011

* * *

33a

[page 2]... Mr. Park was arrested upon the flight’s arrival

in Los Angeles, and he subsequently pled guilty to the crime

of engaging in sexual conduct without another person’s

permission, in violation of 18 U.S.C. § 2244(b).

B. THE NATURE OF THE CASE

Because the flight involved “international transportation,”

plaintiff claims the air carrier’s liability attaches under

Article 17 of the Warsaw Convention,” as modified by the

Montreal Agreement.’ Plaintiff does not contend that any

acts or omissions of defendant Korean Air (“KAL”) caused

or contributed to the sexual assault on board Flight 61.

Under Article 17,‘ an air carrier is liable for passenger

injury when three conditions are established: (1) there has

been an accident, in which (2) passenger death, wounding

or other bodily injury, has occurred (3) on board the aircraft

or in the course of embarkation or disembarkation. In exchange

for this liberal standard of liability, the air carrier’s monetary

exposure for death or injury resulting from an Article 17

“accident” cannot exceed $75,000 (the limit set by the

Montreal Agreement), absent the airline’s wilful misconduct.

* * *

2. Convention for the Unification of Certain Rules Relating to

International Transportation by Air, concluded at Warsaw, Poland,

October 12, 1929, 49 Stat. 3000 T.S. No. 876, 137 L.N.T.S. (1934),

reprinted in 49 U.S.C. §40105 (1997) (Note).

3. Agreement Relating to Liability Limitations of the Warsaw

Convention and Hague Protocol, Agreement CAB 18900, 31 Fed.

Reg. 7302 (1966), note following 49 U.S.C. App. §1502.

4. Copy attached as Addendum A.

34a

[page 12] ... 1256 (9" Cir. 1977), cert. denied, 431 U.S.

974 (1977); Evangelinos v. TWA, 550 F.2d 152 (3d Cir.

1977). See also CAB Press Release 66-61; 382-6031, May

3, 1966 (“[B]y agreeing to forego certain defenses which

they could raise under the terms of the Convention, the

participating carriers are accepting the principle of absolute

liability, i.e., liability without fault on the part of the

airline.”)°

If Article 20(1) of the Convention were an available

defense in this case, the position of the defendant and the

court below might have merit. This is because plaintiff

concedes the assault was not caused by a lack of due care on

the part of defendant. But KAL waived these “due care”

defenses when it became a signatory to the Montreal

Agreement. As such, it may only avoid absolute liability in

this case if the damage suffered by Ms. Wallace was a result

of her own “internal reaction to the usual, normal and

expected operation of the aircraft.” Saks, 470 U.S. at 405-06.

While it is true that the Montreal Agreement does not

change the definition of an Article 17 “accident” (Saks, 470

U.S. at 406-07), it is equally true that a court....

* * * *

9. The State Department press release announcing the Montreal

Agreement similarly remarked: “Airlines in international travel will

be absolutely liable up to $75,000.00 per passenger regardless of

any fault or negligence. Recovery by those who need it most will

thus be maximized and expedited.” Department of State Press

Release No. 110, May 13, 1966. See also Windbourne v. Eastern

Air Lines, Inc., 479 F.Supp. 1130 (E.D.N.Y. 1979), rev’d on other

grounds, 632 F.2d 219 (2d Cir. 1980).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.