1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v.

IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - -X OLYMPIC AIRWAYS, Petitioner : : : : : : No. 02-1348

RUBINA HUSAIN, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF

THE ESTATE OF ABID M. HANSON, : DECEASED, ET AL. :

- - - - - - - - - - - - - - - -X Washington, D.C. Wednesday, November 12, 2003 The above-entitled matter came on for oral at

argument before the Supreme Court of the United States 11:04 a.m. APPEARANCES:

ANDREW J. HARAKAS, ESQ., New York, New York; on behalf of the Petitioner. H. BARTOW FARR, III, ESQ., Washington, D.C.; on behalf of the Respondents. BARBARA B. McDOWELL, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Respondents.

1 Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF

C O N T E N T S PAGE

ANDREW J. HARAKAS, ESQ. On behalf of the Petitioner H. BARTOW FARR, III, ESQ. On behalf of the Respondents BARBARA B. McDOWELL, ESQ. On behalf of the United States, as amicus curiae, supporting the Respondents REBUTTAL ARGUMENT OF ANDREW J. HARAKAS, ESQ. On behalf of the Petitioner 52 44 28 3

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P R O C E E D I N G S (11:04 a.m.) CHIEF JUSTICE REHNQUIST: We'll hear argument

next in No. 02-1348, Olympic Airways v. Rubina Husain. Mr. correctly? ORAL ARGUMENT OF ANDREW J. HARAKAS ON BEHALF OF THE PETITIONER MR. HARAKAS: Yes, Your Honor. Harakas. Am I pronouncing your name

Mr. Chief Justice, and may it please the Court: Over 70 years Convention created a ago, the treaty drafters of the which set Warsaw the

forth

circumstances created in

under which air carrier liability should be injury or death. The

the event of passenger

legal regime they created recognized there's circumstances where the passenger should be entitled to a cause of

action, but it also expressly recognized the need to limit that liability and set forth certain conditions when that Article 17 of the of Warsaw only

limited liability would apply. Convention creates

a presumption

liability but

when three conditions precedent are satisfied. One, there has to be an accident in which the

passenger suffers a bodily injury or dies and the accident took place on board the aircraft or during the course of

embarking or disembarking.

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The issue before dealing with the

the Court here today

-- we're Was that

accident condition precedent.

satisfied in this case? Of course, the -- the Court in Saks in 1985

specifically addressed the and the Court defined an

issue of what is accident as an

an accident, unusual and

unexpected event that's external to the passenger. Of a particular importance to this case is where the Court declined to extend the accident and encompass an injury that results from and in the passenger's to the own internal normal and

condition

and --

response

expected operations of the aircraft. Thus, until recently, the courts have held that out of the passenger's preexisting

arising

medical conditions precedent even if negligence. QUESTION:

do not satisfy the there were

accident condition carrier

allegations of air

I take it you don't take the position in part as a

that -- that, let's say, any death resulting result of

one, but not the only, cause of the preexisting excluded from the -- the class of

conditions is thereby liability. MR. HARAKAS: QUESTION:

I think you have -- Justice -in other words, having a

Every --

heart condition does not immunize Olympic Airlines against

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liability if

somebody

dies of

a

heart attack

per

se.

You're not taking that position. MR. HARAKAS: is on board Our position is that die of a if somebody

an aircraft and they

heart attack, passenger's -- the

that is -- that is not own internal

an -- that's a -- the

reaction and it just

happened to be

passengers happened to be on board the aircraft. QUESTION: in the Sure, if -- if they're simply sitting happens and they have a But if here is attack

seat and nothing unusual

heart attack there

and die, sure, there's no liability. conditions -and the argument and the heart

are other

that there are

other conditions --

was merely a contributing cause -- it was a condition upon which those other conditions acted -- that does not -- the existence of the heart condition does not immunize Olympic Airlines against liability. That's -I don't think

that's your argument, is it? MR. HARAKAS: and in this case Well, no. What the argument is -to look to what is the event

here, you have event? The

injury-producing here --

injury-producing

QUESTION:

And

-- and

they

say

the injury-

producing event is -- or one of the -- the analyses is the unexpected refusal of the airline individual to personnel to allow this And that

get moved into a smoke-free zone.

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unusual and unexpected event, combined the heart condition, caused

with the smoke and But it was the

the death.

unexpected refusal to remove from a smoke zone that is the unexpected event or occurrence that is the accident. is your answer to that? MR. HARAKAS: I respectfully disagree with the What

characterization, which was adopted by the court below, in that in this case you have to -you -- you can't just

simply look saying we're

to the fact that you had the flight attendant not going to He -He was assigned a non-smoking seat move you. He was assigned a

non-smoking seat.

QUESTION:

which happened to be in a zone with smoke. MR. HARAKAS: Well, in -- on board any aircraft, have ambient cigarette smoke

when smoking is allowed, you

throughout the aircraft, and in this case you have to look to -the it can't be disputed that this passenger reacted to smoke and the injury-producing event

cigarette

indirect -QUESTION: row 48. MR. HARAKAS: Ginsburg. That's -- that's correct, Justice -- when you -- in any smoking on But less in -- less in row 15 than in

However, when you have you -- when they

aircraft when the aircraft,

used to allow

as at this time, you

could be 10 rows away

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and you would still be smoke.

exposed to that ambient

cigarette

But the point we have to look to is with respect to the Warsaw Convention is what type of liability did

they want to create. straying look case, away from

You know, when we get into issues of the direct cause Warsaw -- because when we

to almost

every single

Convention accident that direct

the focus has

always been When

on what is

injury-producing event. law concepts of -QUESTION:

we start

inserting common

Well, you say direct, are -- are you

trying to make the -- the act omission distinction? MR. HARAKAS: Well, the act and -- in one

respect, but -- but in the broader sense, you have to look to is what has always been the event the courts have the

looked to, what did the -- the cause to be? to inject

drafters intend the event --

It's not -- I don't think it's proper common law notions of proximate

full-blown

causation. QUESTION: the common argument -No -no one is -- no making it one is making law as a

I don't

think is

the common

here.

They're saying

was unexpected

matter of fact that somebody seat, who

who wanted a -- a in the area of

smokeless the seat the

found there was smoke asked to be

and who was

moved, would be

refused by

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airline.

That is the unexpected event. MR. HARAKAS: But -- but that's what courts have here by the Court courts used

done after the Supreme Court's decision in Tseng because

at that time, before Tseng,

to find that it didn't

matter whether you had allegations

of true negligence because we do have to look to -QUESTION: are not of The -- the point is which is the allegations and normative

negligence,

a legal

conclusion. MR. HARAKAS: QUESTION: of fact, Yes.

The allegation is simply, as a matter

it is not to be expected that a stewardess would say, no, you can't move him. not negligent, it simply Whether it

stand there and was negligent or

was unexpected

as a matter of fact, and they're saying that satisfies the unexpected event. MR. HARAKAS: I -- I disagree. I don't think

that satisfies the unexpected event. QUESTION: from ordinary Well, it could I and it is different

negligence.

mean, it is

conceivable at the

least that to have an

airline stewardess say no when

policy of the airline and the standard generally is to the contrary and even though origin. to say, no, I will not consider moving you

there were seats further away

from the smoke

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MR. HARAKAS: purposes of the article

I don't

believe in

the --

for you

17 accident analysis, you --

-- your -- you should or should be allowed or to go beyond looking to asking what

it's proper injury-

is that

producing event. In this instance yes, there were here, we have to requests remember too be moved. moved. He knew

three

to

However, the passenger

himself never

asked to be

It was always through his wife. his own condition.

He was a doctor.

I mean, we can all get into

the whole

reasonableness issue, but what happened -QUESTION: Which -which is a matter of

QUESTION:

Yes. Yes, it's a matter of defense. question and

MR. HARAKAS: QUESTION:

But Justice O'Connor's

my question is -- is the question that goes to whether you get into court to defend. And you're -- you're giving us

a -- an argument that, in effect, we weren't negligent. MR. HARAKAS: QUESTION: unexpected No. But our questions were wasn't it

in fact that somebody would be in the position

that this passenger was in. MR. HARAKAS: I don't -well, I think that's you can

where the courts below and where you get -- where

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cross the lines and confuse the concepts of negligence and causation in this case because unusual, unexpected for a here you could say was a -- when it

-- for

a passenger

makes a request to be moved.

In a certain sense, yes, you

could say that it was -- it could unusual, unexpected, but I think you have to come back to is but is that the

injury-producing event. to. QUESTION: the economy section? MR. HARAKAS: Chief Justice. QUESTION:

And that's what the

courts look

Were there other seats

available in

There were other

seats available,

In the economy section? In the economy seat section. difficult were were I

MR. HARAKAS: think when the you -plane of it

was very there

to determine

because seats.

was -those 11

approximately 11 in the smoking

Some

seats

section, but the -QUESTION: And in addition, there were the no-

revenue people who could have been asked to leave. MR. HARAKAS: but when you look to There were the non-revenue people, the record, the only -- in way you could had to for

determine the

non-revenue people

fact, we

submit post-trial submissions somebody to

after the

trial to --

testify to interpret

the codes that

were on

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the passenger manifest who were non-revenue. QUESTION: the case, does it? MR. HARAKAS: doesn't have -QUESTION:

to determine who were

revenue and

This doesn't have anything to do with

No, it

doesn't, Your Honor.

It

So what are

we talking about it for?

I mean, it -- it -- the issue before us is not negligence. MR. HARAKAS: QUESTION: an accident. MR. HARAKAS: accident. QUESTION: May I ask this question? I know you a Exactly. It is whether it was an It's not --

The issue before us is whether it was

didn't argue about negligence, but distinction between and failure to

you do seem to draw on the

affirmative conduct

one hand

act on the other hand.

And my question to

you is, supposing that without

asking the stewardess, the

passenger had gotten into a -- a non-smoking seat seven or eight rows ordered to accident? MR. don't think HARAKAS: under -Under the for circumstances, no, of the I ahead of where he was sitting and then was

return to his seat.

Would that have

been an

purposes

Warsaw

Convention, that would have been an accident.

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QUESTION: MR.

That would have been. It would not have been an

HARAKAS:

QUESTION:

It would not have been. Because again, the injury -then you don't rely on a

MR. HARAKAS: QUESTION:

So then --

distinction for the action and non-action. MR. HARAKAS: Well, because -well, I do rely

distinction between action and

non-action because cannot

you could have an omission be an this. accident. I -- I

which in and of itself

really gave a lot

of thought to

I looked at the cases and I could never find a pure A omission can result in an

omission being an accident. accident. QUESTION: Well,

why is

this a pure

omission?

to me she misrepresented that the plane was full That doesn't sound like wife to sit down. she was supposed an

twice when that wasn't true. omission to me. well, how do you She told the treat that

She --

to report

such incidents to her supervisor and she didn't do that? MR. HARAKAS: The -- the bottom line of the

allegations here should have

were that

the --

the flight Mr. --

attendant to

taken action

to move

Dr. Hanson

another seat, and failure to do so would be -QUESTION: And part of what -- part of what she

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had -MR. HARAKAS: QUESTION: -- in itself an omission. of the picture is things that

Part

she affirmatively did do. And I don't

do, and part are things understand that the

she didn't makes a

law

distinction between doing what one should not have done or not doing what one should have done. MR. HARAKAS: law Generally in -under negligence

-- under negligence law a negligence can be an act or But here, when you're looking to the treaty of defined as an unusual, unexpected event or

omission. an accident

happening, you basically have a non-event, something did not happen.

that

You -- you see that I think in the -Yes, but you -- you say you wouldn't So assume the case was

QUESTION: draw the the other

distinction I suggested.

way around, that the stewardess told him to get Now, why would that not be an accident? Because at that point, when he got to his normal assigned

back to his seat.

MR. HARAKAS:

back to his seat, he would be back non-smoking seat. section, again,

While in close proximity to the smoking that smoke on a smoking know,

you have to see

aircraft, a known there was

smoking aircraft,

nobody -- you

no surprise here when

he got on

board on this to be smoke

aircraft that there

was a -- there was going

on this aircraft -- is not an unusual, unexpected event.

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QUESTION: your position. of the plane

But I

want to be

sure I understand

If the stewardess had gone to the captain a guy in the back seat smoke,

and said, we've got

who said he's going to

die because he can't stand

he wants to sit in the front seat, and he's grabbed a seat up there, should I order him back to the old seat, and the captain says, yes, send him back, would that be an

accident? MR. don't think it HARAKAS: Under the Warsaw Convention, why. I It

would be an accident, and here's

-- these are extreme examples that -- with respect to that where -- the passenger in this case -- don't forget too,

the flight attendant did give the option to this passenger to move. situation, He could have taken self-help to. to remedy the

but he

opted not

But in those

type of

situations, you have instances examples, but -and the

where they're very extreme necessarily

convention doesn't

provide a remedy for all those types of situations. QUESTION: -- is it Abramson I -- I take it -- I take it you think they -- the

in the Third Circuit where

-- the passenger can't lie -- lie down. MR. HARAKAS: QUESTION: Exactly, Justice Kennedy. take the position that case is

You

MR. HARAKAS:

No.

That -- that position -- that

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case is

-- is 100 percent correct and it's very analogous

to our case because in the Abramson -QUESTION: That's -- that's -it seems to me

there's an accident in that case. MR. HARAKAS: In that case, the -- the court of

appeals found there was not an accident. QUESTION: there is. MR. almost the Was it HARAKAS: Well, Abramson followed the -I understand, but it seems to me that

exact criteria set forth by the Court in Saks. And they found that you're assigned an

an unusual, unexpected event? an aircraft seat --

being seated in

aircraft seat -- is not -- and sustaining an injury due to your own internal reaction was not an accident because

they, again, focused on what was the precise factual event that led to the injury. QUESTION: Of course, there it seems to me that

the -- the internal cause is -- is much greater than it -it is here. Let -assumption -I let's -think on can we take the take the the case on case the

we must -on

on the of the

assumption, based

the

findings

district court, that if they

had moved the passenger, the

event would not have occurred. MR. HARAKAS: We have to --

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QUESTION:

Now -Yes. -We have to take -take the case on got that an

MR. HARAKAS: QUESTION: assumption, it's accident. MR. HARAKAS:

if we

-- it

seems to

me it's

to be

I

disagree,

Justice

Kennedy,

because again, I -- I just come back to when I was looking at all the cases and looking at the treaty and the text of the convention, producing accident you always do have to look to the injurytext of the treaty And I think says an it does

event because the which causes the

damage.

come down to showing what is the direct event. I think Court -when you look at the Krys case, I think Circuit in Krys clearly set

the Eleventh

forth, I

think, a very workable standard.

They say let's We

look at the -- we ask let's look at the precise event. look at what were the precise events that

caused this

injury, not the actions of the air carrier that they could have taken to avert that injury. QUESTION: But was it determined here that the

passenger died from smoke exposure? MR. HARAKAS: finding that There was at the -- there was a -it was the smoke that killed the

passenger even though -QUESTION: And do we take the case on that

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understanding? MR. HARAKAS: the understanding You would have to take the case on didn't raise the factual

because we

issue that he would have died from the food poisoning. QUESTION: have been seats And is it the case that there would from the exposure

possibly available more removed have been as heavy an

smoke so that it wouldn't to smoke? MR. HARAKAS: any evidence to

I don't -- I don't think there was the concentrations that of the

establish

cigarette

smoke.

There were

seats

were further

removed, but then you come down or determinations as to, well, passenger.

to, again, factual issues how far do you remove the

Is three further rows further ahead, five rows

further ahead enough? QUESTION: to -MR. HARAKAS: a -QUESTION: -- to provide any help. There was a refusal to -the flight there There was a -- well, there was But here there was a total refusal

MR. HARAKAS: was a refusal to

move him because

attendant the

believed the flight was full, 10 seats.

and it was, other than

But the -- the flight attendant

did give this

passenger the option to reseat himself.

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QUESTION:

Well,

you --

you say

you have

to

consider just very precisely what caused the injury. is your view here of what caused the injury? MR. HARAKAS: exposure to case and on What caused the injury was

What

his

the cigarette smoke the findings.

under the facts

of this

And then

we have to determine

was cigarette smoke in that area, ambient cigarette smoke, unusual, unexpected, and cigarette even the lower court found that

smoke on a smoking

aircraft is not an unusual,

unexpected event. QUESTION: When you say the -- the airline gave himself, wasn't it the

the passenger the option to reseat option

to -- to request another passenger to change seats

with him? MR. HARAKAS: QUESTION: To change seats with him.

Yes. Or he could have -- what the -- or to see if he could

MR. HARAKAS:

could have moved through the cabin

locate an empty seat. But mind you, the flight attendant never had any communications with Dr. Hanson. It was always

through his wife. initial boarding.

There were two requests made to move on

QUESTION:

Well, but does that make -- does that that his

make any difference in -- in this case, the fact

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wife was speaking for him? MR. HARAKAS: difference in the No. I mean, it would have made a as to the issue of of

lower

court

reasonableness and things the legal

like that,

but for purpose

issue before the Court,

no, it doesn't

make a you

difference because, again,

when you look

at -- when

look at all the various cases, when you come through Krys, Abramson, and the other pre-Tseng cases -- and I draw that distinction held that a before Tseng -- the courts universally arising out of his had own

passenger's injury

internal reaction to the conditions on the aircraft is not an accident. And when you look to the history of the --

convention itself,

here the

lower courts,

in effect

while we say they didn't use negligence, they, in imported concepts of negligence,

effect,

reasonableness, those types of

reasonable alternatives, things like that, concepts. QUESTION: do look to see The How about other

courts?

I mean,

we

what our treaty partners do that were

in this area. brief that

two other courts

cited in the

addressed this question seem to agree with the decision of the Ninth Circuit in this case. MR. HARAKAS: Yes. Yes, Justice Ginsburg. court in Povi, a lower The court

one court was an Australian

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case, which appeal.

that

case has

been appealed

and argued

on I

And that case -- that was in the DVT context.

think that court suffered from the same fundamental errors that the courts here below did in viewing what the -QUESTION: England -MR. HARAKAS: QUESTION: whatever that -MR. HARAKAS: QUESTION: out of its way Yes, the DVT litigation. but did say, went case was the -- that -What about the court of appeals in

-- that disagreed on the -- on the --

Disagreed on that,

to say, it thought that this

right way to go about it. MR. HARAKAS: case, the court found Well, the -- on the DVT litigation that -he disagreed with the

reasoning of the lower courts, certainly understand the

but he said that he But he

could

result.

was, again,

focusing in on the facts because if you applied the -QUESTION: mean -MR. HARAKAS: QUESTION: Yes, well -dictum in that case that -We Well, that's surely dictum anyway. I

-- the

that he thought that this

case came out right below.

wouldn't even -- we wouldn't to our own

even give dispositive effect the dictum of a court of

dictum much less to

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appeals in England. MR. HARAKAS: Scalia. It was dicta. You're -- you're right, Justice in that the

And what

happened was

case, I think he had a end of the day,

misperception of the facts at

and if you applied the rationale

that he facts

used for his opinion in dismissing those cases, the of this case would inevitably lead to the

dismissal of

this case and a finding of no accident. QUESTION: I don't think so, having read his

decision and the other members of the court of appeals. QUESTION: misperception? MR. HARAKAS: As to the enforced exposure to the the passenger here was relocated What was Lord Phillips'

cigarette smoke because -- because

given the option to relocate, and he could have himself. QUESTION: The option being

-- the option being Your husband can

the one that was mentioned a moment ago.

get up and try to get somebody else to move? MR. HARAKAS: the available Switch or find another -- one of

empty seats. I

Because then you also have to I don't want to get into

remember, again, the --

-- well,

QUESTION: no empty seats.

She -- she

said positively there are that was given to the

The -- the option

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wife was seats.

that

you go

ask

another passenger

to

switch

MR. HARAKAS: time, you

Sure, because

-- because at

the

know, there were only plane is full.

11 empty seats,

and she

said that the

And that -- and

that's at boarding. 3 hours.

the time of boarding as It's a flight that

well, in the middle of been delayed for

had

Everybody is coming on board the plane. QUESTION: inquiries were But by the time the second and third should have been evident that

asked, it

there were empty seats. MR. HARAKAS: was just before Well, the -- the second on inquiry -- on a

-- shortly

before takeoff

flight delayed off, and she

for 3

hours, and

they're trying you right now.

to take And one

says, I can't help

thing -- and then the third one was shortly after takeoff. QUESTION: Well, but the -I wouldn't think

they allowed smoking before takeoff. MR. HARAKAS: before takeoff. It No, they did not allow third smoking incident and then And the

wasn't

until the

shortly after takeoff she said,

when smoking was allowed, move my husband now?

can you please

request was denied. But I think with -- with respect to the whole

accident inquiry issue here, we also have to look to, when

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you

start

bringing when you

in

the

definition equating

of what

is

an of

accident, negligence contrary

start

with

issues

and common law,

I think

we go astray as to

and go

to what

the drafters

intended

what the

Court here

in Tseng held, that

you don't --

accident is

not a common law concept. QUESTION: point, in

It's a self-contained -had held nothing on this

If Tseng

fact, it -- it

said that the

Second Circuit's In

conclusion that that Tseng, it

wasn't an accident was doubtful.

was an academic question. the treaty

What barred her from suffer

getting recovery under

was she didn't

from a physical injury or from a psychological injury with -- with physical didn't have -I think manifestations. She didn't die and she Tseng

the kind of injury that would qualify. you are quite wrong in saying

that that

decision passed on the concept of accident. MR. HARAKAS: Ginsburg. right. I No. I agree with you, Justice

may have misspoke because

you're absolutely

There was only that one footnote that -- where the to whether the court in the

Court did express concern as

Second Circuit flexibly applied the Tseng decision. was talking about the -- what I meant was the

But I

broader

context of Tseng with respect to importation or allowing a parallel state cause of action in light of the exclusivity of the convention and the uniformity principles set forth

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in the convention. And if you start importing concepts of

negligence back into the convention -- because, in effect, what the courts we can't go we'll are doing below is they're saying, fine, we'll -to a no

to State law, but accident of to

what we'll do is make So

define an cause

it equivalent there's

negligence difference.

action.

really

What the courts are

doing is nullifying the negligence as

exclusivity holding by an accident. QUESTION:

equating any act of

But are

-- are you saying here

that in

the court of appeals really

wrote an opinion about --

negligence and saying that's an accident? MR. HARAKAS: of the court of When you read the -- the language it's pure negligence

appeals,

it's --

language. QUESTION: you think But -- but it seems to me whatever -- it

about what the flight

attendant did, it It

can't be classed as negligence here. do something. MR. HARAKAS:

was a refusal to

It was a refusal.

It was a -- it

was a -- in my view, it was an omission, and I think at -when you is -- is take omissions and put it in the context of what that an unusual, unexpected event, that an

omission cannot in and of itself be the accident.

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QUESTION: into the act was more than

I don't know if we really have to get question here because a refusal to take this

versus omission that. It was

action in

the face of an alleged severe medical problem and in -- in contravention to the rules of the airline at the time. you could characterize this, I think, as some kind So of

positive action, in effect. MR. HARAKAS: I think of Well, I -when I think of an

some type

of positive action, look at a refusal

and in to do

this instance,

when --

when I

something, I look at it as -- as an omission. But even if you did look at it as a positive although -was the

event here, Justice everything leads event

O'Connor, I think you -to trying

us back

to identify

that caused

the injury

here unusual,

unexpected. For

And that -- there's only example,

one injury-producing event.

let's say nobody asked the Hanson. There was no

airline in this case request made, and he

to move Dr.

remained in his non-smoking seat. QUESTION: made a request. MR. HARAKAS: QUESTION: I'm sorry. No request made? I thought the wife

Excuse me. A hypothetical.

MR. HARAKAS: QUESTION:

Oh.

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MR. HARAKAS:

Let's assume no request

had been

he would have remained in that same non-smoking

seat and he would have died because of the exposure to the ambient cigarette smoke, What would be the according to plaintiffs' theory. event there? What

injury-producing

caused that death?

His internal reaction to the cigarette

smoke, the normal -- which was normal and expected. Now, the fact that they for him to event. be moved asked -- somebody asked injury-producing It's the

doesn't change the

The injury-producing event is the same.

exposure to the cigarette smoke. QUESTION: Well, but of course, the exposure

might have been substantially reduced if the passenger had been able to get seated in an area further removed from

the active smokers. MR. HARAKAS: still would There -- he still have been would have had smoke

ambient cigarette

throughout the cabin, as we all well know. QUESTION: Well, suppose there were five rows of a -- a stewardess -- and there that we don't people You must

seats in front and

are stewardesses like this sometimes wandering around the plane. sit down in your seat. MR. HARAKAS:

We're serving food.

A different case? No, not a different assigned seat, and case because again, it's

assigned to your

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one

of those extreme

examples that

if I

believed there gotten

were five empty rows up and found it there focus

here, he probably would have But in that case,

himself.

I don't feel -- I

would be a in on this

different case

because, again, I event here,

injury-producing

and the

injury-producing

event is the exposure to cigarette smoke

which was normal and expected. QUESTION: airline requires So your -- your submission is if the

you to sit in the no-smoking seat for no

particularly good reason, there's still no accident. MR. HARAKAS: because if Oh, I -I disagree on that one

they required you to sit in a non-smoking seat

and you had -QUESTION: Well, that was my hypothetical. Okay. If they -- if you -- if

MR. HARAKAS:

they require you to sit in a smoking section? QUESTION: ahead. MR. HARAKAS: There would be no difference in No. One -- just one -- one row

the situation from this -- from our scenario. would not be an accident. seat and you -- again, He was assigned a

There still non-smoking

you look to was

his own internal

reaction here to the normal aircraft. And I think

and expected operation of the

when

-- when

you

look

at

the

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convention, the structure of the convention, and what they had in mind by the term accident, you have to -- you can

only come back to that one basic conclusion, that you look to what is that injury-producing event. I'd like just to reserve the remaining -my

time for rebuttal if there are no further questions. QUESTION: Very well, Mr. Harakas.

Mr. Farr, we'll hear from you. ORAL ARGUMENT OF H. BARTOW FARR, III ON BEHALF OF THE RESPONDENTS MR. FARR: the Court: There are that article 17 basically two reasons when why we an think Mr. Chief Justice, and may it please

imposes

liability

airline

knowingly leaves

a passenger in medical

jeopardy without

taking basic measures to alleviate the harm. First, because that kind of action violates

normal industry safety practices and thus, under Saks -QUESTION: accident? Well, that's the question. Is it an

You assume it.

You say that kind of accident. Is it an accident?

Well, I think that's the issue. MR. FARR:

I'm sorry if I said that kind of -- I

meant to say that kind of action under Saks is contrary to -- to the normal industry safety practices. QUESTION: Let me ask about Saks. It's -- it

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seems to you --

me that the fallacy in the argument that -- that that the Government runs is the totality of that it what is

you run and

accepts the

language of Saks as

necessary to be an accident. Now, Saks involved a fellow who had some problem with his ear normal which was -- caused him -pressurization harm because of the of the -of the

depressor And in

cockpit.

denying relief says, no,

under the -that wasn't an

under the accident

convention, the Court

because the cockpits are pressurized all the it -it has -to be an accident, it

time, and if be an

has to Okay.

unexpected or unusual event or happening. Saks was not saying that

that is a

sufficient

condition to be an accident. is a necessary condition. Now, let me --

It was just saying that that

let me

give

--

give

you a

hypothetical and you accident. It

tell me why -- why to me the

this would be an closely

seems

hypothetical

parallels what happened here. A man hurls commit suicide. himself into the life himself into the sea intending to

There is right nearby to where he hurled sea a dock with 30 people on it not a single and 30 one of the

preservers at their up the I

feet, and

them picks drowning

life preserver don't know

and throws Maybe

it to

man.

why.

they're 30

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libertarians themselves.

who

think

people should

be

able

to kill

Whatever.

(Laughter.) QUESTION: and unusual event. Certainly Who would -- certainly an unexpected imagine that with 30 life throw

preservers within one.

reach of

the man,

nobody would

Now, would anybody this man died because of an

in his

right mind say Of

that

accident?

course, not.

Unexpected and unanticipated is a -- a necessary condition for -for saying that something was caused by an

accident, but it's surely not a sufficient condition. And it seems is exactly like that. endangered. because of an I -to me what happened in this plane

It is an event after the person was think that this person make it. died And

I don't It

accident.

just doesn't

that's the language of the convention, not Saks. MR. FARR: that -Well, Justice Scalia, it seems to me you're making, which in one

that the point that

sense I think is a correct one, is that the language of -of article 17, if one looks at it in purely colloquial definition in used -- the

terms, may not Saks.

exactly correspond with the

But the language in

article 17 isn't

term accident isn't

used purely in the

colloquial sense.

What we know from the context of the convention as a whole

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and the

liability system as a whole and from Saks is that actually captures less than the colloquial

sometimes it

sense of the term accident, sometimes it's more. For example, the mere fact that somebody has a

heart attack typically would be, thought of that it because as an accident.

in the colloquial sense, from Saks

But we've learned

is not itself going to be considered the accident of the context of article 17 and the -the

language about accidents causing death or bodily injury. By the same token, the deliberate refusal to

help somebody, his earlier

as the Chief Justice pointed out in his -I think, is -is normally, in

question

colloquial terms, not thought of as an accident. inadvertent. 17 that It's deliberate.

It's not

But we know under article be an accident. or

deliberate conduct can, in fact,

If a flight attendant strikes throws coffee on

a passenger in the face

the passenger in a fit

of rage, that is

an accident for purposes of article 17. QUESTION: conduct such I'm willing here can to say be an that negligent accident. Of

as occurred

course, it can. hot

If -- if the flight attendant spills some passenger causing the passenger to be

liquid on the

scalded, of course, that -- that's an accident. MR. FARR: QUESTION: Well, Justice Scalia -That fits the normal -- the normal

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concept of accident. MR. FARR: QUESTION: Of course, but -- but -What happened here does not fit the

normal description of accident. MR. FARR: But my example is not a -- an

accidental spilling. just to try to

I'm -- I'm actually talking about it

get at the colloquial sense, which I think

is what disturbs you, that -- that if -- if in fact the -the flight attendant purposely throws the coffee on the

passenger, just become irritated with

the passenger, that

would not normally be thought of as an accident, if you're asking people around the coffee an accident. But in because we misconduct. terms of article 17 covers 17, it is an accident willful shop whether there's been

know article

instances of

Article 17 is the gateway by which you get to and willful misconduct -of things that includes certainly talking about,

any liability, the kinds of

I'm

deliberate conduct. QUESTION: Can this be said to be that kind of

conduct where it's contrary to the policy of the airline? MR. FARR: mean, one Yes, it can, Justice O'Connor. I

of the things that's a little bit curious in -together with Justice Scalia's an incident which in fact

in tying the two questions question, this

is a -- this is

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is to some extent intentional. QUESTION: MR. FARR: that -- that just Yes. I mean, the -- it was not inadvertent was left take a in his seat. For

the passenger -just to

example,

different,

slightly

changed analogy, if in fact the passenger had -- had asked to be moved in -- out of the vicinity of the smoke, and

the flight attendant had said, let me wait until everybody is seated, I'll come back and get you in half an hour, and she forgot to do that, that would actually in colloquial

terms seem more like an accident. forgot to come back. But

Somehow negligently she in this particular what

in fact,

case, she was asked three

times and knowing in fact

she was doing, she said, no, I'm not going to move you. QUESTION: asked to move What if she -said I'll what if she'd been then care same.

him, and she

be back, and

another passenger gets very ill of him right away, and

and she has to take facts are the

then the

Accident there? MR. FARR: The question then I think -- the --

the proper way to answer that, Justice Kennedy, is to look at what would happen in the normal flight under the normal circumstances. here, it's him. Obviously, under the circumstances we had she didn't move

unusual and

unexpected that

If in fact the reason was that there was

some other

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enormous

problem

on

the

plane and

all

of

the flight

attendants had to deal with

that particular problem, then

it seems to me the -- the action here would not be unusual and unexpected. QUESTION: QUESTION: that the airline's policy, and I Well, that's -Your -- you stated in your opening

conduct here was contrary

to industry an earlier

think Justice O'Connor premised

question on saying it was against the policy of -- of this particular airline. Spell that out a little, will you?

What was the

policy of -- of the airline and why did this

action violate it? MR. FARR: The policy of the airline and the

policy generally, because I think they're in this case the same -QUESTION: MR. FARR: move for medical They're the same. -- was reasons, when a passenger that the requests a is to And

policy

accommodate that request if it's

possible to do so.

it was possible here because there were empty seats in the coach cabin, questions of so we don't have to get into the complicated whether you have to move someone to first

class or to -- to alleviate the problem. QUESTION: or less Would -- would it have been any more

of an accident if that practice had not prevailed

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in the industry? MR. FARR: I mean, industry I -can I think it's possible that it would. is not that essentially by lowering the its

our position give itself

immunity

standards so much that -are unusual, but standard are the

that acts that -- that the -- the But

clearly industry I think

nonetheless within

-- are immune from is in trying

liability. to evaluate

general idea

things that

aren't

obviously accidents, we have to judge whether

to have some sort of is unusual. industry

benchmark

what's happened

The natural place is to look practice. with

-- is -- is at the

And if in fact what they've done is consistent would think in the usual case

industry practice, I

certainly that would suggest there event. QUESTION: MR. FARR: QUESTION: same sense

hasn't been an unusual

Well, but it was unusual here. Absolutely. So why isn't this an accident in the

that having an attendant throw hot coffee on a

passenger would be? MR. FARR: QUESTION: It is. Supposing the airline's defense to

throwing hot coffee on the passenger said our stewardesses do that all the time. (Laughter.)

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QUESTION: MR. FARR: don't think

There's unexpected about it. I mean, the -- the fact is as I say, that necessarily having a very low

standard in the company itself or in the industry will, in fact, give you immunity, although I that's an unlikely about the have to say I think because a

that in fact when we

thing to happen

talk

Warsaw Convention,

there's

natural -QUESTION: Mr. Farr, can I interrupt for a

It seems to me

that in the question you could have as they

of whether a situation

a passenger or not, security

for

reasons,

have

around her --

Washington, every passenger

must remain in his or

her seat for 500 miles or 30 minutes or so, and refusal to move during that period could not possibly be an accident. MR. FARR: but -- but of the is That's correct, Justice Stevens. the analysis would be the same. I I

instructions that you is have to

Saks gives, I look at

think the

correctly,

that What

all

circumstances.

unusual

or

unexpected

under

certain circumstances would not be

unusual or expected --

unexpected under other circumstances like the one -QUESTION: What -- what role does fault play?

It -- it seemed to me, as opinion in Saks, that

I was reading the Ninth Circuit negligence is probably not a

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requisite. to send it send

I don't know if that makes it necessary for us back. Suppose we think that's true. of appeals and say, Would we no, no, and find

it back

to the court -- is not the

negligence is fault on

standard, go ahead or not there's

their -- or whether

an accident

under some other standard? MR. FARR: that's necessary. Justice Kennedy, I -I mean, what the I don't think Ninth Circuit

basically said was

this is an unusual or unexpected event

under Saks because it violates industry policies, industry standards, the company policy, and particularly nature of the request. there, it seems to me given the stopped be

If the Ninth Circuit had that their decision

would

absolutely correct. QUESTION: Well, it didn't. It went on and got

a bunch of negligence language in there. MR. that FARR: Well, it's the following sentence And I

obviously raises

at least

some questions.

should say should because

I'm not sure that troubling -- the

-- that language perhaps that -be,

in itself some

be as the

as it

appears to that

situations

the court me,

describes

there

very often

will

it

seems to

unusual or unexpected situations. But nonetheless, following the adage that it seems the to me that -to that

Court

sits

review

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judgments and not opinions, that the Court can simply say, as we -- we suggest would an unusual be sufficient, that you do have you fail to help a

and unexpected event when

passenger in violation of the standard industry practice. Now, if the standard industry practice would not to help the claim is a passenger under certain circumstances be and

still made that it's another benchmark

unusual or unexpected, for reference, but the

one would need

Court doesn't need to reach that in this case. Now, I would like to -- to also point out that

in -- in -- when we're talking about the language of -- of article 17, while I think it's -- it's proper to -- to -- in the look at in

focus on the

language itself and discuss it in

context of Saks, that it's also I think proper to the context of the convention

as a whole and whether,

fact, competing interpretations of the term accident would lead to absurd consequences. Here I think if in fact the definition or the

application of the definition that Olympic tries urge on the Court that -is accepted, that one is

to -- to

going to find

that this convention, which is intended to be the passengers who suffer death is -is

exclusive means of remedy for or bodily injury on an

international flight, in it where case,

going to cover

have essentially a hole even, as in

it doesn't

situations

this

whether it's

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willful misconduct injury. And the

by the

airline crew

that causes

the

focus that

-- you

know, in

terms of

whether that is a reasonable understanding to attribute to the parties to the convention seems to me when you -- when be an accident, would be under the circumstances, it you say a positive act would cause an accident

an omission that would

-- you know, would -- would involve an accident, liability whatsoever for situations in which

but there's

the -- the conduct itself is the

contributing factor, the

failure to do something is the -- is a strong contributing factor, doesn't really make any reasonable sense as a

construction, and particularly that the -the parties must

because one of have

the things that

understood is is -- is

during

the time that

the passenger

covered by to in

article 17, if you will, the time of

from the time of embarkation passenger is largely

disembarkation, the the airline.

the control of

The airline determines where opportunities to

the passenger sits.

So the passenger's

engage in self-help are greatly reduced. And in that situation, the idea that the -- that the parties thought that airlines could simply say we have passengers reasons, on our plane who not need our to help for medical help

and

we're

going

provide

any

whatsoever and that either causes greater injury -- causes

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injury in the first place, causes greater injury, or in an unhappy case like this one, actually causes a death, their theory would say there's still no liability. seem to from the result. QUESTION: a heart attack Well, what if someone suffered, say, it was 3 hours from its you've me you would need text, which a very, very And it would

clear indication reach that

doesn't exist

here, to

on the plane and doctor there

destination and the

said, you know,

really got to -- in -- in order to avoid this guy probably dying, you're Now, would going to have to land somewhere en route?

an airline be obligated to do that in order to

avoid this sort of accident? MR. FARR: I think It depends on the circumstances, but be, in fact,

the general industry practice would

that an airline would be -- would -- would normally divert to a nearer airport in fact to -to save the -the

passenger from death or from much more severe injury. That in a sense is Circuit case, decision the Krys case, the is in conflict a case Eleventh with the the

that Olympic says case.

in this

That was

in which

Eleventh Circuit said, well, the -- the failure to divert, which it -it was agreed would -would have made a

significant difference to the passenger's unusual because the plane just

health, was not It

did the normal thing.

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just

flew to its

regular destination.

But

the problem

with Krys is that if you look at all the circumstances, as Saks says, it's not the normal thing just to fly on to

your intended destination when a passenger has had a heart attack and the medical indication -QUESTION: Well, then -then you're saying

basically it depends on airline practice whether something is expected or unexpected and whether it's the normal

practice. MR. FARR: In this context. I mean, obviously, --

sometimes it's -- it's -- if

-- if the context is the

the failure to help a passenger in -- in medical distress, then it airline seems to me that the usual or the industry at in general for practice of -- of the is -- is the proper

benchmark,

least initially,

determining whether

something is usual or unusual. Now, obviously, there are other kinds of

accidents, crashes and hijackings and common knowledge tells where common knowledge then it

all, where -- where unusual, but you the

you what happened is

doesn't necessarily tell that reference

answer,

does seem

to industry

standards is a useful benchmark. QUESTION: Would you comment on the distinction

between an event and an accident? MR. FARR: Well, the event is under -- under

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Saks -be an

I mean, the difference is that an accident has to

unusual event, that not every event is an accident.

You have to demonstrate that it's unusual, and -- and much of is what we've talked about this morning, obviously, is -why this would be But an unusual by reference to industry

standards. definition, plane.

event, if

one looks at that

a dictionary on the

is simply

something

happened

QUESTION:

I think it would affect the liability forth. That's triggered by an

for loss of baggage and so event, as I understand it. MR. FARR:

That's correct.

It is now.

It was

at one time triggered by an occurrence, and under the 1999 Montreal Convention it's triggered by an event. QUESTION: Yes.

Do you think the Abramson case in the

Third Circuit was properly decided? MR. FARR: was wrong. I don't I don't -- I am not sure the result was correct. I

think the approach

think the court should have asked what practice would have been in that

the usual industry the usual

case, and if

industry practice would have been to make an accommodation along the lines that -- that the passenger requested, then I think that might have well have been an accident. I

think it's that

a -- it's a have been

difficult question as true because that

to whether particular

would

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passenger needed to be moved into first

class, needed two

first class seats, and in fact part of the solution was he was perhaps going to introduce self-induced vomiting as a

cure, which obviously would affect other passengers in the cabin. So, you know, -the -on the facts, one ultimately the judgment with -with that the was made usual might there

have said actually

comported

industry

standards.

However, we don't know the answer

because the

Third Circuit didn't ask the right question. QUESTION: But you do think the Eleventh Circuit

Krys case was wrong in both reasoning and result. MR. FARR: piece of information the case. case as a Well, Krys -- we have an additional to decide

because the court went on

This was pre Tseng.

So it actually decided the

common law negligence case, and when it did so, airline had done by not was a violation think of diverting industry have that

it found that what the in that particular So

case

standards.

in that

case I

what should

happened in Krys is that inquiry as

the court should have made

part of the Warsaw Convention analysis, and if

it had done so in fact, it would have limited the recovery in Krys, which was many millions of dollars, to the limits of the Warsaw Convention, supplemented by the agreements. If you. the Court has no further questions, thank

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QUESTION:

Thank you, Mr. Farr.

Ms. McDowell, we'll hear from you. ORAL ARGUMENT OF BARBARA B. McDOWELL ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS MS. McDOWELL: please the Court: A flight attendant's refusal to assist an ill Mr. Chief Justice, and may it

passenger can amount

to an accident within the meaning of The analysis focuses on speaking, whether or in

the Warsaw Convention. such conduct is,

objectively

unusual

unexpected, taking into account the ordinary practices the industry and other indicia of what would

be expected

in the circumstances. At a minimum it's reasonable to construe the

convention's term accident, as the United States construes it, to encompass the aberrant conduct of the and this Court has ordinarily reasonable accorded flight crew, to the to

weight

United

States'

construction of

treaties

which it is a party. Our reading of the text structure and term accident comports convention. with The

purposes of the

term is a broad and

inclusive one.

It's not

confined to As the Court of

crashes or explosions or equipment failures. recognized in Saks, it can encompass a

wide array

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unusual and

unexpected events

external to

the passenger

potentially -QUESTION: Ms. McDowell -Yes. assuming that it could have

MS. McDOWELL: QUESTION:

--

happened somehow in an airline context, would you say that Justice Scalia's hypothetical was an accident? MS. McDOWELL: I think that a failure of an

airline employee to can, indeed, under the have been their

come to the assistance of a passenger One must recall such as that even airlines toward as aid

be an accident.

common law,

common carriers

understood to have

special obligations obligations

passengers,

not expansive but to

to act

physicians to them,

provide reasonable first

until they reach the destination. this particular context is --

So I think that -- that

is quite different from the

context when one is dealing with just a bystander. And I think have under the common law as well, there that might well be viewed as

been other situations

accidents that involved omissions when one is under a duty to act. QUESTION: bystander. Okay. Let's say it wasn't a

Let's say that, you They're the

know, they were

-- they person

were relatives. who jumped.

parents of -- of the call that

You

still wouldn't

an accident,

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would

you?

Does it

have anything

to

do with

-- with impose a

whether there's duty on -- on

a duty or not? bystanders, by

Some States do the way, and

let's assume

that happens in a State where there is a duty. MS. McDOWELL: QUESTION: accident, Well, I think the inquiry here -You still I wouldn't call it an

I don't think.

mean, nobody would

use the

English language that way. MS. McDOWELL: Well, I think here under the understood

Warsaw Convention, the

term accident has been

to refer to an unusual, unexpected event. QUESTION: Okay. But wouldn't you -Warsaw

Convention or not, wouldn't you call it an accident if the bystanders had put up an advertisement saying, swim with

us for $500, and then they stood there? MS. McDOWELL: seem to be an accident. QUESTION: That would get a little closer to our And that -Yes, Your Honor. and that might well be an Yes, that would -- that would

situation, wouldn't it? MS. McDOWELL: QUESTION: accident. MS. McDOWELL: malpractice cases, for omission of

--

Other

circumstances --

medical an

example, might

be those where

some sort, because the doctor is under a duty

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to act, failure

could be viewed as to diagnose or to

an accident. treat a

For example, a

particular medical was negligent,

condition

until

it's too

late,

if that

could be an accident. QUESTION: to write Would -- would you say that we ought

the opinion so that if there is negligence, that normal airline practices were not being

is evidence that followed,

and that's an accident?

So that negligence is

important to the analysis, not necessary, but it -- it can be helpful. MS. McDOWELL: QUESTION: We would say that -we write the opinion

Or -- or should

without talking about negligence? MS. McDOWELL: objective reasonableness We would say that the test is the same

which connotes some of

concepts as negligence does in the common law. QUESTION: differ from -objective Well, how does -how does that say

from the common

law at all? really

If you

reasonableness,

you're

just

changing

accident into common law negligence, aren't you? MS. McDOWELL: because negligence isn't Well, a not in all circumstances an

necessary

condition for

accident to occur.

An accident could be an act of God and

an event that did not involve negligence. In this particular case, yes, the inquiry into

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due care

and the inquiry into

an -- whether

an accident

has occurred are quite similar, on a different question.

but they're still focused inquiry asks

The accident

whether something unusual or unexpected has the due care inquiry under article

happened, and whether the

20 asks

airline has acted with due care. QUESTION: fact that normal followed. MS. McDOWELL: Correct. Now, there may be were that, Well, negligence is a proxy for the being

airline operating

rules were not

isolated instances where although ordinary practices being followed, nonetheless, an those practices were accident might be so deficient found.

Normally,

however, I think treat passengers

that -- that airlines' reasonably. So I think

practices are to that asking the

reasonableness question would be the whether there was practices. In construing the -QUESTION: You know,

same as -- as seeing policies and

a deviation from standard

I think

there

may be

a to

public policy reason for

construing accident contrary

its normal meaning to embrace acts whether

in this context intentional

by the airline employees or by pirates or -But I don't -- I -- there to

or terrorists or anybody else. -- there's a problem in

my mind about interpreting it

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-- to embrace especially negligent omissions. me that's

It seems to

so far away from the normal meaning of accident

that I don't -- I don't see the justification for doing it especially where it converts the convention into

essentially what it was not negligence. That --

intended to be, liability for

MS. McDOWELL: don't have

Well, of

course, in this case we We have what the We also

a mere negligent omission. to be willful

district court found

misconduct.

found -- this case also involves a -- a refusal to series of refusals to act, and -and

act, a of

provision

misinformation full or not.

about So it's

whether the

flight

was completely to characterize

-- it's difficult

this particular case -QUESTION: any causality. No, the misinformation didn't the -what caused bear the

I mean,

the --

injury here was -- was not the misrepresentation about the other seats. It was simply the failure to move the person

to another seat, and that is totally an -- an omission, it seems to me. MS. characterized McDOWELL: as an I don't think it's properly three

omission

when

there

were

increasingly desperate

requests to

reseat the

passenger

and the flight attendant responded on each occasion -QUESTION: I take it back. Three -three

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omissions. MS. McDOWELL: I think that this sort of case

can be contrasted, for example, from a -- a simple failure to warn case where the question is whether an airline condition ordinary

should have that a

warned about a might

particular medical in response to

passenger

have

flight.

This seems to involve much more.

Certainly Lord

Phillips in the English court of appeals thought that this case act. The drafters of the Warsaw Convention certainly involved much more than -than just a failure to

didn't intend that airlines would be insurers for any harm that befell a passenger during flight. They did intend,

however, that airlines would be held liable when their own fault caused a passenger's death or bodily injury.

Indeed, they eliminated the caps that fault

on damages in cases when This

rose to the level of willful misconduct. that the drafters intended accident to

would seem doubtful their choice of

simply by

the term

exempt airlines

entirely from liability in cases suffered bodily injury

where passengers died or the airline's fault,

because of

including willful misconduct in this case. QUESTION: required? Well, is airline's fault even

Supposing that before the plane took off, there -- filled

was a big fire in the area and smoke filled the

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the aircraft while it was

on the runway and then

he died

from that smoke, would that be an accident? MS. McDOWELL: Your Honor. It It could well be an be an accident, for which

might not

accident

liability would -- would be properly -QUESTION: QUESTION: within the you. MS. McDOWELL: QUESTION: -- the -Yes, it probably would. Why wouldn't it be? There's going to be an accident

meaning of the

convention is what

I'm asking

So then the smoke doesn't have -- the accidental cause is, it doesn't

whatever the

have to be fault of the airline. MS. airlines have McDOWELL: That's correct because the

the opportunity

under

article 20

of the be held not act

convention responsible

to come back for this

and say

that we cannot we did

accident because

negligently. The understanding QUESTION: that. --

I thought they had to show more than

I thought they had to show that they did everything

possible to prevent -- to prevent the -MS. McDOWELL: all necessary measures. QUESTION: Yes. Well, the term in the treaty is

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MS. McDOWELL: reasonable as

But it's been construed So care it's

to mean been

measures. a -a due

essentially

understood

defense.

And that's

reinforced in the Montreal Convention, the that has just come into force, that negligence in its own words.

new convention

-- that uses the term

The understanding that the accident satisfied in cases like this

requirement the air

one serves

convention's carriers and of

purpose of passengers.

balancing the

interests of

Such cases do not pose a threat to airlines. Cases is

particularly expansive liability

such as this one where unusual and death or

air carriers do something that thereby can be cause a expected

unexpected and injury

passenger's to remain under

bodily

relatively few

under the

convention, as

they are

U.S. domestic law.

Imposing liability, meanwhile, enables families to receive some injuries and provides measure of appropriate

passengers and their

compensation for their

incentives for airline supervision and their personnel. For all of these reasons, of the court of appeals be affirmed. QUESTION:

-- and training of

we'd ask the judgment

Thank you, Ms. McDowell.

Mr. Harakas, you have 3 minutes remaining. REBUTTAL ARGUMENT OF ANDREW J. HARAKAS

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ON BEHALF OF THE PETITIONER MR. HARAKAS: Mr. Chief Justice, I think when

you -- when you look at the arguments that were

made both

by the respondents and the Solicitor General, it all comes back to the issue of negligence, wanting to equate an

accident with negligence. The Warsaw Convention wasn't an all-encompassing There were certain holes left in the convention For example, if the

where there

wasn't going to be recovery. injury, there's

there's no bodily Warsaw Convention,

no recovery under

as set forth by the Floyd decision, no

matter, let's say, how egregious the air carrier's conduct may have been. It set forth certain things, and the

convention wanted to define the by using that term accident

liability based on the -not making reference to

various common law notions. I think one of the problems that we're seeing is that confusing always what is the accident -- and that's why I In the

come back to

the injury-producing event.

hijacking situation, for example, the accident there isn't the failure of the airline to conduct proper screening and allowing the hijackers to come on board the aircraft. accident is and they The

those hijackers get on the -- on the airplane a passenger. And that -- the injury

injure

itself is the accident.

Just like in the smoke

example,

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if there was a fire someplace and the cabin filled up with smoke, the smoke itself Why the injuring got the passenger there is is the

accident. irrelevant. So

smoke

completely

when

you --

when

you start

injecting the whole

whole concepts of negligence, I think you upset the

balance of the convention, and -- and one of the principal goals of the convention was to have a uniformity and to

limit the liability of the carrier.

In fact, the Montreal just entered into retained the

Convention of 1999, which just -- which force last week here in

the United States,

term accident. liable for

The issue of whether the carrier should be health of the passenger has

the state of the

always been a very special and unique issue in the context of the convention's history. Post-ratification conduct

from 1945 all the way through the -- all the way to the -the Montreal Convention were very careful liable of 1999, the contracting states

and very reluctant to make the carriers out of their -- out of the

for injuries arising

state of health of the passenger. And the -- with respect where they say -where to the policy arguments and Solicitor

the respondents

General say that the -- there are certainly policy reasons should be considered in weighing in favor of the --

passengers in this instance, I

think when you look to

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you have to apply the strict terms of the convention. each time this Court has been confronted been rejected.

And

with similar In Saks, the

policy arguments, they have -the passenger was

left without a

remedy because they

couldn't -- because the passenger the accident condition

couldn't satisfy the -The same thing in

precedent.

Floyd.

There they And in

couldn't

satisfy the the --

bodily injury there was no

requirement.

Tseng, where

remedy allowed under State law

when they couldn't satisfy

the accident or the bodily injury conditions precedent. Focusing on what the injury-producing event and

whether that event is unusual, unexpected, and external to the passenger -- thank you, Your Honor. CHIEF Harakas. The case is submitted. (Whereupon, at 12:04 p.m., the case in the JUSTICE REHNQUIST: Thank you, Mr.

above-entitled matter was submitted.)

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