OLYMPIC AIRWAYS v. HUSAIN, individually, and as personal representative of the ESTATE OF HANSON, DECEASED, et al.

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644 OCTOBER TERM, 2003
Syllabus
OLYMPIC AIRWAYS v. HUSAIN, individually, and as
personal representative of the ESTATE OF
HANSON, DECEASED, et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 02–1348. Argued November 12, 2003—Decided February 24, 2004
Under Article 17 of the Warsaw Convention (Convention), an air carrier is
liable for a passenger’s death or bodily injury caused by an “accident”
occurring on an international flight. “Accident” refers to an “unex-
pected or unusual event or happening that is external to the passenger,”
not to “the passenger’s own internal reaction to the usual, normal, and
expected operation of the aircraft.” Air France v. Saks, 470 U. S. 392,
405, 406. While Rubina Husain (hereinafter respondent) and her hus-
band, Dr. Hanson, were traveling overseas, she requested that peti-
tioner Olympic Airways provide seats away from the smoking section
because Dr. Hanson had asthma and was sensitive to secondhand smoke.
After boarding, they discovered that their seats were only three rows
in front of the smoking section. A flight attendant refused respondent’s
three requests to move Dr. Hanson. As the smoking noticeably in-
creased, Dr. Hanson walked toward the front of the plane to get fresher
air. He then received medical assistance but died. Respondents filed
a wrongful-death suit in state court, which was removed to federal
court. The District Court found petitioner liable for Dr. Hanson’s
death, and the Ninth Circuit affirmed, concluding that, under Saks’
definition of “accident, ” the flight attendant’s refusal to reseat
Dr. Hanson was clearly external to him, and unexpected and unusual in
light of industry standards, Olympic policy, and the simple nature of the
requested accommodation.
Held: The conduct here constitutes an “accident” under Article 17.
Pp. 649–657.
(a) The parties do not dispute Saks’ definition of “accident,” but they
disagree about which event should be the focus of the “accident” inquiry.
The Court’s reasoning in Saks sheds light on whether the flight attend-
ant’s refusal to assist a passenger in a medical crisis is the proper focus
of the “accident” inquiry. In Saks, the Court focused on “what causes
can be considered accidents,” 470 U. S., at 404, and did not suggest that
only one event could be the “accident.” Indeed, the Court recognized
that “[a]ny injury is the product of a chain of causes.” Id., at 406.
Thus, for purposes of the “accident” inquiry, a plaintiff need only prove

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Syllabus
that “some link in the chain was an unusual or unexpected event exter-
nal to the passenger.” Ibid. Pp. 649–652.
(b) Petitioner does not dispute that the flight attendant’s conduct was
unusual or unexpected, arguing only that her conduct was irrelevant to
the “accident” inquiry. Petitioner argues that ambient cigarette smoke
was the relevant injury producing event. Petitioner’s focus on the am-
bient cigarette smoke neglects the reality that multiple interrelated fac-
tual events often combine to cause a given injury. Any one of these
events or happenings may be a link in the chain of causes and—so long
as it is unusual or unexpected—could constitute an “accident” under
Article 17. 470 U. S., at 406. The flight attendant’s refusal on three
separate occasions to move Dr. Hanson was a factual event that the
District Court correctly found to be a “link in the chain” of causes lead-
ing to his death. Petitioner’s argument that the attendant’s failure to
act cannot constitute an “accident” because only affirmative acts are
events or happenings under Saks is also unavailing. The rejection of
an explicit request for assistance would be an “event” or “happening”
under these terms’ ordinary and usual definitions, and other provisions
of the Convention suggest that there is often no distinction between
action and inaction on the ultimate liability issue, see, e. g., Art. 25. Fi-
nally, although the Ninth Circuit improperly seemed to approve of a
negligence-based approach to the accident inquiry, no party disputes
that court’s holding that the flight attendant’s conduct was “unexpected
and unusual,” which is the operative language under Saks and the cor-
rect Article 17 analysis. Pp. 652–657.
316 F. 3d 829, affirmed.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Kennedy, Souter, and Ginsburg, JJ., joined.
Scalia, J., filed a dissenting opinion, in which O’Connor, J., joined as to
Parts I and II, post, p. 658. Breyer, J., took no part in the consideration
or decision of the case.
Andrew J. Harakas argued the cause for petitioner. With
him on the briefs was Diane Westwood Wilson.
H. Bartow Farr III argued the cause for respondents.
With him on the brief were Richard G. Taranto, Gerald C.
Sterns, and Susie Injijian.
Barbara McDowell argued the cause for the United States
as amicus curiae urging affirmance. With her on the brief
were Solicitor General Olson, Assistant Attorney General

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646 OLYMPIC AIRWAYS v. HUSAIN
Opinion of the Court
Keisler, Deputy Solicitor General Kneedler, Lowell V. Stur-
gill, Jr., William H. Taft IV, and Kirk K. Van Tine.*
Justice Thomas delivered the opinion of the Court.
Article 17 of the Warsaw Convention (Convention) 1 im-
poses liability on an air carrier for a passenger’s death or
bodily injury caused by an “accident” that occurred in con-
nection with an international flight. In Air France v. Saks,
470 U. S. 392 (1985), the Court explained that the term “acci-
dent” in the Convention refers to an “unexpected or unusual
event or happening that is external to the passenger,” and
not to “the passenger’s own internal reaction to the usual,
normal, and expected operation of the aircraft.” Id., at 405,
406. The issue we must decide is whether the “accident”
condition precedent to air carrier liability under Article 17
is satisfied when the carrier’s unusual and unexpected re-
fusal to assist a passenger is a link in a chain of causation
resulting in a passenger’s pre-existing medical condition
being aggravated by exposure to a normal condition in the
aircraft cabin. We conclude that it is.
I
The following facts are taken from the District Court’s
findings, which, being unchallenged by either party, we ac-
cept as true. In December 1997, Dr. Abid Hanson and his
wife, Rubina Husain (hereinafter respondent), traveled with
their children and another family from San Francisco to Ath-
ens and Cairo for a family vacation. During a stopover in
New York, Dr. Hanson learned for the first time that peti-
tioner allowed its passengers to smoke on international
*Warren L. Dean, Jr., filed a brief for the Air Transport Association of
America, Inc., as amicus curiae urging reversal.
1 Convention for the Unification of Certain Rules Relating to Interna-
tional Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876
(1934), note following 49 U. S. C. § 40105.

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flights. Because Dr. Hanson had suffered from asthma and
was sensitive to secondhand smoke, respondent requested
and obtained seats away from the smoking section.
Dr. Hanson experienced no problems on the flights to Cairo.
For the return flights, Dr. Hanson and respondent arrived
early at the Cairo airport in order to request nonsmoking
seats. Respondent showed the check-in agent a physician’s
letter explaining that Dr. Hanson “has [a] history of recur-
rent anaphylactic reactions,” App. 81, and asked the agent to
ensure that their seats were in the nonsmoking section.
The flight to Athens was uneventful.
After boarding the plane for the flight to San Francisco,
Dr. Hanson and respondent discovered that their seats were
located only three rows in front of the economy-class smok-
ing section. Respondent advised Maria Leptourgou, a flight
attendant for petitioner, that Dr. Hanson could not sit in a
smoking area, and said, “ ‘You have to move him.’ ” 116
F. Supp. 2d 1121, 1125 (ND Cal. 2000). The flight attendant
told her to “ ‘have a seat.’ ” Ibid. After all the passengers
had boarded but prior to takeoff, respondent again asked
Ms. Leptourgou to move Dr. Hanson, explaining that he was
“ ‘allergic to smoke.’ ” Ibid. Ms. Leptourgou replied that
she could not reseat Dr. Hanson because the plane was “ ‘to-
tally full’ ” and she was “too busy” to help. Ibid.
Shortly after takeoff, passengers in the smoking section
began to smoke, and Dr. Hanson was soon surrounded by
ambient cigarette smoke. Respondent spoke with Ms.
Leptourgou a third time, stating, “ ‘You have to move my
husband from here.’ ” Id., at 1126. Ms. Leptourgou again
refused, stating that the plane was full. Ms. Leptourgou
told respondent that Dr. Hanson could switch seats with an-
other passenger, but that respondent would have to ask
other passengers herself, without the flight crew’s assistance.
Respondent told Ms. Leptourgou that Dr. Hanson had to
move even if the only available seat was in the cockpit or in

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business class, but Ms. Leptourgou refused to provide any
assistance.2
About two hours into the flight, the smoking noticeably
increased in the rows behind Dr. Hanson. Dr. Hanson asked
respondent for a new inhaler because the one he had been
using was empty. Dr. Hanson then moved toward the front
of the plane to get some fresher air. While he was leaning
against a chair near the galley area, Dr. Hanson gestured to
respondent to get his emergency kit. Respondent returned
with it and gave him a shot of epinephrine. She then awoke
Dr. Umesh Sabharwal, an allergist, with whom Dr. Hanson
and respondent had been traveling. Dr. Sabharwal gave
Dr. Hanson another shot of epinephrine and began to admin-
ister CPR and oxygen. Dr. Hanson died shortly thereafter.3
Id., at 1128.
Respondents filed a wrongful-death suit in California state
court. Petitioner removed the case to federal court, and the
District Court found petitioner liable for Dr. Hanson’s death.
The District Court held that Ms. Leptourgou’s refusal to re-
seat Dr. Hanson constituted an “accident” within the mean-
ing of Article 17. Applying Saks’ definition of that term,
the court reasoned that the flight attendant’s conduct was
external to Dr. Hanson and, because it was in “blatant disre-
gard of industry standards and airline policies,” was not ex-
pected or usual. 116 F. Supp. 2d, at 1134.
The Ninth Circuit affirmed. Applying Saks’ definition of
“accident,” the Ninth Circuit agreed that the flight attend-
ant’s refusal to reseat Dr. Hanson “was clearly external to
2 Dr. Hanson and respondent did not know at the time that, despite
Ms. Leptourgou’s representations, the flight was actually not full. There
were 11 unoccupied passenger seats, most of which were in economy class,
and 28 “non-revenue passengers,” 15 of whom were seated in economy
class rows farther away from the smoking section than Dr. Hanson’s seat.
116 F. Supp. 2d, at 1126.
3 For religious reasons, no autopsy was performed to determine the
cause of death.

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Dr. Hanson, and it was unexpected and unusual in light of
industry standards, Olympic policy, and the simple nature of
Dr. Hanson’s requested accommodation.” 316 F. 3d 829, 837
(2002). We granted certiorari, 538 U. S. 1056 (2003), and
now affirm.
II
A
We begin with the language of Article 17 of the Conven-
tion, which provides: 4
“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.
3018.5
In Saks, the Court recognized that the text of the Conven-
tion does not define the term “accident” and that the context
in which it is used is not “illuminating.” 470 U. S., at 399.
4 The Warsaw Convention’s governing text is in French. We cite to the
official English translation of the Convention, which was before the Senate
when it consented to ratification of the Convention in 1934. See 49 Stat.
3014; Air France v. Saks, 470 U. S. 392, 397 (1985).
5 After a plaintiff has established a prima facie case of liability under
Article 17 by showing that the injury was caused by an “accident,” the air
carrier has the opportunity to prove under Article 20 that it took “all
necessary measures to avoid the damage or that it was impossible for [the
airline] to take such measures.” 49 Stat. 3019. Thus, Article 17 creates
a presumption of air carrier liability and shifts the burden to the air car-
rier to prove lack of negligence under Article 20. Lowenfeld & Mendel-
sohn, The United States and the Warsaw Convention, 80 Harv. L. Rev.
497, 521 (1967). Article 22(1) caps the amount recoverable under Article
17 in the event of death or bodily injury, and Article 25(1) removes the
cap if the damage is caused by the “wilful misconduct” of the airline or its
agent, acting within the scope of his employment. See 49 Stat. 3019, 3020.
Additionally, Article 21 enables an air carrier to avoid or reduce its liability
if it can prove the passenger’s comparative negligence. See id., at 3019.

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The Court nevertheless discerned the meaning of the term
“accident” from the Convention’s text, structure, and history
as well as from the subsequent conduct of the parties to the
Convention.
Neither party here contests Saks’ definition of the term
“accident” under Article 17 of the Convention. Rather, the
parties differ as to which event should be the focus of the
“accident” inquiry. The Court’s reasoning in Saks sheds
light on whether the flight attendant’s refusal to assist a pas-
senger in a medical crisis is the proper focus of the “acci-
dent” inquiry.
In Saks, the Court addressed whether a passenger’s “ ‘loss
of hearing proximately caused by normal operation of the
aircraft’s pressurization system’ ” was an “ ‘accident.’ ” Id.,
at 395. The Court concluded that it was not, because the
injury was her “own internal reaction” to the normal pres-
surization of the aircraft’s cabin. Id., at 406. The Court
noted two textual clues to the meaning of the term “acci-
dent.” First, the Convention distinguishes between liability
under Article 17 for death or injuries to passengers caused
by an “accident” and liability under Article 18 for destruction
or loss of baggage caused by an “occurrence.” Id., at 398.
The difference in these provisions implies that the meaning
of the term “accident” is different from that of “occurrence.”
Ibid. Second, the Court found significant the fact that Arti-
cle 17 focuses on the “accident which caused” the passenger’s
injury and not an accident that is the passenger’s injury.
Ibid. The Court explained that it is the cause of the in-
jury—rather than the occurrence of the injury—that must
satisfy the definition of “accident.” Id., at 399. And recog-
nizing the Court’s responsibility to read the treaty in a man-
ner “consistent with the shared expectations of the contract-
ing parties,” ibid., the Court also looked to the French legal
meaning of the term “accident,” which when used to describe
the cause of an injury, is usually defined as a “fortuitous,
unexpected, unusual, or unintended event,” id., at 400.

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Accordingly, the Court held in Saks that an “accident”
under Article 17 is “an unexpected or unusual event or hap-
pening that is external to the passenger,” and not “the pas-
senger’s own internal reaction to the usual, normal, and ex-
pected operation of the aircraft.” Id., at 405, 406.6 The
Court emphasized that the definition of “accident” “should
be flexibly applied after assessment of all the circumstances
surrounding a passenger’s injuries.” Id., at 405. The
Court further contemplated that intentional conduct could
fall within the “accident” definition under Article 17,7 an in-
terpretation that comports with another provision of the
Convention.8 As such, Saks correctly characterized the
6 The term “accident” has at least two plausible yet distinct definitions.
On the one hand, as noted in Saks, “accident” may be defined as an unin-
tended event. See Webster’s New World College Dictionary 8 (4th ed.
1999) (“a happening that is not . . . intended”); see also American Heritage
Dictionary 10 (4th ed. 2000) (“[l]ack of intention; chance”); Saks, 470 U. S.,
at 400. On the other hand, as noted in Saks, the term “accident” may be
defined as an event that is “unusual” or “unexpected,” whether the result
of intentional action or not. Ibid. See Black’s Law Dictionary 15 (6th
ed. 1990) (“an unusual, fortuitous, unexpected, unforeseen, or unlooked for
event, happening or occurrence” and “if happening wholly or partly
through human agency, an event which under the circumstances is unusual
and unexpected by the person to whom it happens”); see also American
Heritage Dictionary, supra, at 10 (“[a]n unexpected and undesirable
event,” “[a]n unforeseen incident”). Although either definition of “acci-
dent” is at first glance plausible, neither party contests the definition
adopted by the Court in Saks, which after careful examination discerned
the meaning of “accident” under Article 17 of the Convention as an “unex-
pected or unusual event or happening that is external to the passenger.”
470 U. S., at 405.
7 The Court cited approvingly several lower court opinions where inten-
tional acts by third parties—namely, torts committed by terrorists—were
recognized as “accidents” under a “broa[d]” interpretation of Article 17.
Ibid. (citing lower court cases).
8 Specifically, Article 25 removes the cap on air carrier liability when the
injury is caused by the air carrier’s “wilful misconduct.” 49 Stat. 3020.
Because there can be no liability for passenger death or bodily injury
under the Convention in the absence of an Article 17 “accident,” such

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term “accident” as encompassing more than unintentional
conduct.
The Court focused its analysis on determining “what
causes can be considered accidents,” and observed that Arti-
cle 17 “embraces causes of injuries” that are “unexpected or
unusual.” Id., at 404, 405. The Court did not suggest that
only one event could constitute the “accident,” recognizing
that “[a]ny injury is the product of a chain of causes.” Id., at
406. Thus, for purposes of the “accident” inquiry, the Court
stated that a plaintiff need only be able to prove that “some
link in the chain was an unusual or unexpected event exter-
nal to the passenger.” Ibid.
B
Petitioner argues that the “accident” inquiry should focus
on the “injury producing event,” Reply Brief for Petitioner 4,
which, according to petitioner, was the presence of ambient
cigarette smoke in the aircraft’s cabin. Because petitioner’s
policies permitted smoking on international flights, peti-
tioner contends that Dr. Hanson’s death resulted from his
own internal reaction—namely, an asthma attack—to the
normal operation of the aircraft. Petitioner also argues that
the flight attendant’s failure to move Dr. Hanson was inac-
tion, whereas Article 17 requires an action that causes the
injury.
We disagree. As an initial matter, we note that petitioner
did not challenge in the Court of Appeals the District Court’s
finding that the flight attendant’s conduct in three times re-
fusing to move Dr. Hanson was unusual or unexpected in
light of the relevant industry standard or petitioner’s own
company policy. 116 F. Supp. 2d, at 1133. Petitioner in-
stead argued that the flight attendant’s conduct was irrele-
vant for purposes of the “accident” inquiry and that the only
relevant event was the presence of the ambient cigarette
“wilful misconduct” is best read to be included within the realm of conduct
that may constitute an “accident” under Article 17.

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smoke in the aircraft’s cabin. Consequently, we need not
dispositively determine whether the flight attendant’s con-
duct qualified as “unusual or unexpected” under Saks, but
may assume that it was for purposes of this opinion.
Petitioner’s focus on the ambient cigarette smoke as the
injury producing event is misplaced. We do not doubt that
the presence of ambient cigarette smoke in the aircraft’s
cabin during an international flight might have been “nor-
mal” at the time of the flight in question. But petitioner’s
“injury producing event” inquiry—which looks to “the pre-
cise factual ‘event’ that caused the injury”—neglects the re-
ality that there are often multiple interrelated factual events
that combine to cause any given injury. Brief for Petitioner
14. In Saks, the Court recognized that any one of these
factual events or happenings may be a link in the chain of
causes and—so long as it is unusual or unexpected—could
constitute an “accident” under Article 17. 470 U. S., at 406.
Indeed, the very fact that multiple events will necessarily
combine and interrelate to cause any particular injury makes
it difficult to define, in any coherent or non-question-begging
way, any single event as the “injury producing event.”
Petitioner’s only claim to the contrary here is to say:
“Looking to the purely factual description of relevant events,
the aggravating event was Dr. Hanson remaining in his as-
signed non-smoking seat and being exposed to ambient
smoke, which allegedly aggravated his pre-existing asthma-
tic condition leading to his death,” Brief for Petitioner 24,
and that the “injury producing event” was “not the flight
attendant’s failure to act or violation of industry standards,”
Reply Brief for Petitioner 9–10. Petitioner ignores the fact
that the flight attendant’s refusal on three separate occasions
to move Dr. Hanson was also a “factual ‘event,’ ” Brief for
Petitioner 14, that the District Court correctly found to be a
“ ‘link in the chain’ ” of causes that led to Dr. Hanson’s death,
116 F. Supp. 2d, at 1135. Petitioner’s statement that the
flight attendant’s failure to reseat Dr. Hanson was not the

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“injury producing event” is nothing more than a bald asser-
tion, unsupported by any law or argument.
An example illustrates why petitioner’s emphasis on the
ambient cigarette smoke as the “injury producing event” is
misplaced. Suppose that petitioner mistakenly assigns re-
spondent and her husband to seats in the middle of the smok-
ing section, and that respondent and her husband do not no-
tice that they are in the smoking section until after the flight
has departed. Suppose further that, as here, the flight at-
tendant refused to assist respondent and her husband despite
repeated requests to move. In this hypothetical case, it
would appear that, “[l]ooking to the purely factual descrip-
tion of relevant events, the aggravating event was [the pas-
senger] remaining in his assigned . . . seat and being exposed
to ambient smoke, which allegedly aggravated his pre-
existing asthmatic condition leading to his death.” Brief for
Petitioner 24. To argue otherwise, petitioner would have to
suggest that the misassignment to the smoking section was
the “injury producing event,” but this would simply beg the
question. The fact is, the exposure to smoke, the misassign-
ment to the smoking section, and the refusal to move the
passenger would all be factual events contributing to the
death of the passenger. In the instant case, the same can
be said: The exposure to the smoke and the refusal to assist
the passenger are happenings that both contributed to the
passenger’s death.
And petitioner’s argument that the flight attendant’s fail-
ure to act cannot constitute an “accident” because only af-
firmative acts are “event[s] or happening[s]” under Saks is
unavailing. 470 U. S., at 405. The distinction between ac-
tion and inaction, as petitioner uses these terms, would per-
haps be relevant were this a tort law negligence case. But
respondents do not advocate, and petitioner vigorously re-
jects, that a negligence regime applies under Article 17 of
the Convention. The relevant “accident” inquiry under

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Saks is whether there is “an unexpected or unusual event or
happening.” Ibid. (emphasis added). The rejection of an
explicit request for assistance would be an “event” or “hap-
pening” under the ordinary and usual definitions of these
terms. See American Heritage Dictionary 635 (3d ed. 1992)
(“event”: “[s]omething that takes place; an occurrence”);
Black’s Law Dictionary 554–555 (6th ed. 1990) (“event”:
“Something that happens”); Webster’s New International
Dictionary 885 (2d ed. 1949) (“event”: “The fact of taking
place or occurring; occurrence” or “[t]hat which comes, ar-
rives, or happens”).9
9 The dissent cites two cases from our sister signatories England and
Australia—Deep Vein Thrombosis and Air Travel Group Litigation,
[2004] Q. B. 234, and Qantas Ltd. v. Povey, [2003] VSCA 227, ¶ 17, 2003
WL 23000692, ¶ 17 (Dec. 23, 2003) (Ormiston, J. A.), respectively—and sug-
gests that we should simply defer to their judgment on the matter. But
our conclusion is not inconsistent with Deep Vein Thrombosis and Air
Travel Group Litigation, where the England and Wales Court of Appeal
commented on the District Court and Court of Appeals opinions in this
case, and agreed that Dr. Hanson’s death had resulted from an accident.
The English court reasoned: “The refusal of the flight attendant to move
Dr. Hanson cannot properly be considered as mere inertia, or a non-event.
It was a refusal to provide an alternative seat which formed part of a
more complex incident, whereby Dr. Hanson was exposed to smoke in
circumstances that can properly be described as unusual and unexpected.”
[2004] Q. B., at 254, ¶ 50.
To the extent that the precise reasoning used by the courts in Deep
Vein Thrombosis and Air Travel Group Litigation and Povey is inconsist-
ent with our reasoning, we reject the analysis of those cases for the rea-
sons stated in the body of this opinion. In such a circumstance, we are
hesitant to “follo[w]” the opinions of intermediate appellate courts of our
sister signatories, post, at 658 (Scalia, J., dissenting). This is especially
true where there are substantial factual distinctions between these cases,
see [2004] Q. B., at 248, ¶ 29 (confronting allegations of a “failure to warn
of the risk of [deep-vein thrombosis], or to advise on precautions which
would avoid or minimise that risk”); VSCA 227, ¶ 3, 2003 WL 23000692,
¶ 3 (noting plaintiff alleged a failure to provide “any information or warn-
ing about the risk of [deep-vein thrombosis] or of any measures to reduce

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Opinion of the Court
Moreover, the fallacy of petitioner’s position that an “acci-
dent” cannot take the form of inaction is illustrated by the
following example. Suppose that a passenger on a flight in-
explicably collapses and stops breathing and that a medical
doctor informs the flight crew that the passenger’s life could
be saved only if the plane lands within one hour. Suppose
further that it is industry standard and airline policy to di-
vert a flight to the nearest airport when a passenger other-
wise faces imminent death. If the plane is within 30 min-
utes of a suitable airport, but the crew chooses to continue
its cross-country flight, “[t]he notion that this is not an un-
usual event is staggering.” McCaskey v. Continental Air-
lines, Inc., 159 F. Supp. 2d 562, 574 (SD Tex. 2001).10
Confirming this interpretation, other provisions of the
Convention suggest that there is often no distinction be-
tween action and inaction on the issue of ultimate liability.
For example, Article 25 provides that Article 22’s liability
cap does not apply in the event of “wilful misconduct or . . .
such default on [the carrier’s] part as, in accordance with the
law of the court to which the case is submitted, is considered
to be equivalent to wilful misconduct.” 49 Stat. 3020 (em-
phasis added).11 Because liability can be imposed for death
the risk”), and where the respective courts of last resort—the House of
Lords and High Court of Australia—have yet to speak.
10 We do not suggest—as the dissent erroneously contends—that liability
must lie because otherwise “harsh results,” post, at 664 (opinion of
Scalia, J.), would ensue. This hypothetical merely illustrates that the
failure of an airline crew to take certain necessary vital steps could quite
naturally and, in routine usage of the language, be an “event or
happening.”
11 The Montreal Protocol No. 4 to Amend the Convention for the Unifi-
cation of Certain Rules relating to International Carriage by Air (1975)
amends Article 25 by replacing “wilful misconduct” with the language
“done with intent to cause damage or recklessly and with knowledge that
damage would probably result,” as long as the airline’s employee or agent
was acting “within the scope of his employment. ” S. Exec. Rep.
No. 105–20, p. 29 (1998). In 1998, the United States gave its advice and

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657 Cite as: 540 U. S. 644 (2004)
Opinion of the Court
or bodily injury only in the case of an Article 17 “accident”
and Article 25 only lifts the caps once liability has been
found, these provisions read together tend to show that inac-
tion can give rise to liability. Moreover, Article 20(1) makes
clear that the “due care” defense is unavailable when a car-
rier has failed to take “all necessary measures to avoid the
damage.” Id., at 3019. These provisions suggest that an
air carrier’s inaction can be the basis for liability.
Finally, petitioner contends that the Ninth Circuit improp-
erly created a negligence-based “accident” standard under
Article 17 by focusing on the flight crew’s negligence as the
“accident.” The Ninth Circuit stated: “The failure to act in
the face of a known, serious risk satisfies the meaning of
‘accident’ within Article 17 so long as reasonable alternatives
exist that would substantially minimize the risk and imple-
menting these alternatives would not unreasonably interfere
with the normal, expected operation of the airplane.” 316
F. 3d, at 837. Admittedly, this language does seem to ap-
prove of a negligence-based approach. However, no party
disputes the Ninth Circuit’s holding that the flight attend-
ant’s conduct was “unexpected and unusual,” ibid., which is
the operative language under Saks and the correct Article
17 analysis.
For the foregoing reasons, we conclude that the conduct
here constitutes an “accident” under Article 17 of the War-
saw Convention. Accordingly, the judgment of the Court of
Appeals is affirmed.
It is so ordered.
Justice Breyer took no part in the consideration or deci-
sion of this case.
consent to ratification of the protocol, and it entered into force in the
United States on March 4, 1999. See El Al Israel Airlines, Ltd. v. Tsui
Yuan Tseng, 525 U. S. 155, 174, n. 14 (1999). Because the facts here took
place in 1997–1998, Montreal Protocol No. 4 does not apply.

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658 OLYMPIC AIRWAYS v. HUSAIN
Scalia, J., dissenting
Justice Scalia, with whom Justice O’Connor joins as
to Parts I and II, dissenting.
When we interpret a treaty, we accord the judgments of
our sister signatories “ ‘considerable weight.’ ” Air France
v. Saks, 470 U. S. 392, 404 (1985). True to that canon, our
previous Warsaw Convention opinions have carefully consid-
ered foreign case law. See, e. g., El Al Israel Airlines, Ltd.
v. Tsui Yuan Tseng, 525 U. S. 155, 173–174 (1999); Eastern
Airlines, Inc. v. Floyd, 499 U. S. 530, 550–551 (1991); Saks,
supra, at 404. Today’s decision stands out for its failure to
give any serious consideration to how the courts of our
treaty partners have resolved the legal issues before us.
This sudden insularity is striking, since the Court in re-
cent years has canvassed the prevailing law in other nations
(at least Western European nations) to determine the mean-
ing of an American Constitution that those nations had no
part in framing and that those nations’ courts have no role
in enforcing. See Atkins v. Virginia, 536 U. S. 304, 316–317,
n. 21 (2002) (whether the Eighth Amendment prohibits exe-
cution of the mentally retarded); Lawrence v. Texas, 539
U. S. 558, 576–577 (2003) (whether the Fourteenth Amend-
ment prohibits the criminalization of homosexual conduct).
One would have thought that foreign courts’ interpretations
of a treaty that their governments adopted jointly with ours,
and that they have an actual role in applying, would be (to
put it mildly) all the more relevant.
The Court’s new abstemiousness with regard to foreign
fare is not without consequence: Within the past year, appel-
late courts in both England and Australia have rendered de-
cisions squarely at odds with today’s holding. Because the
Court offers no convincing explanation why these cases
should not be followed, I respectfully dissent.
I
The Court holds that an airline’s mere inaction can consti-
tute an “accident” within the meaning of the Warsaw Con-

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659 Cite as: 540 U. S. 644 (2004)
Scalia, J., dissenting
vention. Ante, at 654–657. It derives this principle from
our definition of “accident” in Saks as “an unexpected or un-
usual event or happening that is external to the passenger.”
470 U. S., at 405. The Court says this definition encom-
passes failures to act like the flight attendant’s refusal to
reseat Hanson in the face of a request for assistance.
That is far from clear. The word “accident” is used in two
distinct senses. One refers to something that is uninten-
tional, not “on purpose”—as in, “the hundred typing mon-
keys’ verbatim reproduction of War and Peace was an acci-
dent.” The other refers to an unusual and unexpected
event, intentional or not: One may say he has been involved
in a “train accident,” for example, whether or not the derail-
ment was intentionally caused. As the Court notes, ante, at
651, n. 6, Saks adopted the latter definition rather than the
former. That distinction is crucial because, while there is
no doubt that inaction can be an accident in the former sense
(“I accidentally left the stove on”), whether it can be so in
the latter sense is questionable.
Two of our sister signatories have concluded that it cannot.
In Deep Vein Thrombosis and Air Travel Group Litigation,
[2004] Q. B. 234, England’s Court of Appeal, in an opinion by
the Master of the Rolls that relied heavily on Abramson v.
Japan Airlines Co., 739 F. 2d 130 (CA3 1984), and analyzed
more than a half-dozen other non-English decisions, held as
follows:
“A critical issue in this appeal is whether a failure to
act, or an omission, can constitute an accident for the
purposes of article 17. Often a failure to act results in
an accident, or forms part of a series of acts and omis-
sions which together constitute an accident. In such
circumstances it may not be easy to distinguish between
acts and omissions. I cannot see, however, how inaction
itself can ever properly be described as an accident. It
is not an event; it is a non-event. Inaction is the antith-

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660 OLYMPIC AIRWAYS v. HUSAIN
Scalia, J., dissenting
esis of an accident.” [2004] Q. B., at 247, ¶ 25 (Lord
Phillips, M. R.).
Six months later, the appellate division of the Supreme
Court of Victoria, Australia, in an opinion that likewise gave
extensive consideration to American and other foreign deci-
sions, agreed:
“The allegations in substance do no more than state a
failure to do something, and this cannot be characterised
as an event or happening, whatever be the concomitant
background to that failure to warn or advise. That is
not to say that a failure to take a specific required step
in the course of flying an aircraft, or in picking up or
setting down passengers, cannot lead to an event or hap-
pening of the requisite unusual or unexpected kind and
thus be an accident for the purpose of the article. A
failure by a pilot to use some device in the expected and
correct manner, such as a failure to let down the landing
wheels or a chance omission to adjust the level of pres-
surisation, may lead, as has been held, to an accident
contemplated by Article 17, but I would venture to sug-
gest that it is not the failure to take the step which is
properly to be characterised as an accident but rather
its immediate and disastrous consequence whether that
be the dangerous landing on the belly of the aircraft or
an immediate unexpected and dangerous drop in pres-
surisation.” Qantas Ltd. v. Povey, [2003] VSCA 227,
¶ 17, 2003 WL 23000692 (Dec. 23, 2003) (Ormiston, J. A.).
We can, and should, look to decisions of other signatories
when we interpret treaty provisions. Foreign constructions
are evidence of the original shared understanding of the con-
tracting parties. Moreover, it is reasonable to impute to the
parties an intent that their respective courts strive to in-
terpret the treaty consistently. (The Warsaw Convention’s
preamble specifically acknowledges “the advantage of regu-
lating in a uniform manner the conditions of . . . the liability

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661 Cite as: 540 U. S. 644 (2004)
Scalia, J., dissenting
of the carrier.” 49 Stat. 3014 (emphasis added).) Finally,
even if we disagree, we surely owe the conclusions reached
by appellate courts of other signatories the courtesy of re-
spectful consideration.
The Court nonetheless dismisses Deep Vein Thrombosis
and Povey in a footnote responding to this dissent. Ante, at
655–656, n. 9. As to the former, it claims (choosing its words
carefully) that the “conclusion” it reaches is “not inconsist-
ent” with that case. Ante, at 655, n. 9 (emphasis added). The
reader should not think this to be a contention that the Mas-
ter of the Rolls’ opinion might be read to agree with today’s
holding that inaction can constitute an “accident.” (To re-
peat the conclusion of that opinion: “Inaction is the antithesis
of an accident.” [2004] Q. B., at 247, ¶ 25.) What it refers
to is the fact that the Master of the Rolls distinguished the
Court of Appeals’ judgment below (announced in an opinion
that assumed inaction was involved, but did not at all discuss
the action-inaction distinction) on the ground that action was
involved—namely, “insistence that [Hanson] remain seated in
the area exposed to smoke.” Id., ¶ 50. 1 As I explain below,
see Part II, infra, that theory does not quite work because,
1 The Court quotes only part of the relevant discussion. Here is what
the Master of the Rolls said about our case in full:
“I have no difficulty with the result in this case but, with respect,
I question the reasoning of the judge in both events. The refusal of the
flight attendant to move Dr. Hanson cannot properly be considered as
mere inertia, or a non-event. It was a refusal to provide an alternative
seat which formed part of a more complex incident, whereby Dr. Hanson
was exposed to smoke in circumstances that can properly be described as
unusual and unexpected. The existence of the non-smoking zone pro-
vided the opportunity for Dr. Hanson, if suitably placed within it, to avoid
exposure to the smoke that threatened his health and, as it proved, his
life. The direct cause of his death was the unnecessary exposure to the
smoke. The refusal of the attendant to move him could be described as
insistence that he remain seated in the area exposed to smoke. The expo-
sure to smoke in these circumstances could, in my view, properly be de-
scribed as an unusual or unexpected event.” Deep Vein Thrombosis and
Air Travel Group Litigation, [2004] Q. B. 234, 254, ¶ 50 (emphasis added).

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Scalia, J., dissenting
in fact, the flight attendant did not insist that Hanson remain
seated. But we can ignore this detail for the time being.
The point is that the English court thought Husain could
recover, not because the action-inaction distinction was irrel-
evant, but because, even though action was indispensable, it
had in fact occurred.
The Court charts our course in exactly the opposite di-
rection, spending three pages explaining why the action-
inaction distinction is irrelevant. See ante, at 654–657. If
the Court agrees with the Master of the Rolls that this case
involves action, why does it needlessly place us in conflict
with the courts of other signatories by deciding the then-
irrelevant issue of whether inaction can constitute an acci-
dent? It would suffice to hold that our case involves action
and end the analysis there. Whether inaction can constitute
an accident under the Warsaw Convention is a significant
issue on which international consensus is important; whether
Husain can recover for her husband’s death in this one case
is not. As they stand, however, the core holdings of this
case and Deep Vein Thrombosis—their rationes decidendi—
are not only not “not inconsistent”; they are completely
opposite.2
2 To the extent the Court implies that Deep Vein Thrombosis and Povey
merit only slight consideration because they were not decided by courts
of last resort, see ante, at 655–656, n. 9, I note that our prior Warsaw
Convention cases have looked to decisions of intermediate appellate for-
eign courts as well as supreme courts. See Air France v. Saks, 470 U. S.
392, 404 (1985). Moreover, Deep Vein Thrombosis was no ordinary deci-
sion. It was authored by the Master of the Rolls, the chief judge of Eng-
land’s civil appellate court—a position thought by many to be even more
influential than that of a Law Lord. See, e. g., Smith, Bailey & Gunn on
the Modern English Legal System 250 (4th ed. 2002); Denning: A Life of
Law, BBC News (Mar. 5, 1999), http://news.bbc.co.uk/1/hi/uk/290996.stm
(as visited Jan. 20, 2004, and available in Clerk of Court’s case file).
That there are “substantial factual distinctions” between the cases, ante,
at 655, n. 9, is surely beside the point. A legal rule may arise in different
contexts, but the differences are relevant only if the logic of the rule
makes them so. Deep Vein Thrombosis and Povey hold in no uncertain

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663 Cite as: 540 U. S. 644 (2004)
Scalia, J., dissenting
I would follow the holdings of Deep Vein Thrombosis and
Povey, since the Court’s analysis today is no more convincing
than theirs. Merely pointing to dictionaries that define
“ ‘event’ ” as an “ ‘occurrence’ ” or “ ‘[s]omething that hap-
pens,’ ” ante, at 655, hardly resolves the problem; it only re-
formulates one question (whether “accident” includes non-
events) into an equivalent one (whether “accident” includes
nonoccurrences and nonhappenings).
Equally unavailing is the reliance, ante, at 656–657, on Ar-
ticle 25 of the Warsaw Convention (which lifts liability caps
for injury caused by a “default” of the airline equivalent to
willful misconduct) and Article 20 (which precludes the air-
line’s due-care defense if it fails to take “all necessary meas-
ures” to avoid the injury). The Court’s analytical error in
invoking these provisions is to assume that the inaction these
provisions contemplate is the accident itself. The treaty im-
poses no such requirement. If a pilot negligently forgets to
lower the landing gear, causing the plane to crash and killing
all passengers on board, then recovery is presumptively
available (because the crash that caused the deaths is an acci-
dent), and the due-care defense is inapplicable (because the
pilot’s negligent omission also caused the deaths), even
though the omission is not the accident. Similarly, if a flight
attendant fails to prevent the boarding of an individual whom
she knows to be a terrorist, and who later shoots a passen-
ger, the damages cap might be lifted even though the acci-
dent (the shooting) and the default (the failure to prevent
boarding) do not coincide. Without the invented restriction
that the Article 20 or 25 default be the accident itself, the
Court’s argument based on those provisions loses all force.
terms that inaction cannot be an accident; not that inaction consisting of
failure to warn of deep vein thrombosis cannot be an accident. Maintain-
ing a coherent international body of treaty law requires us to give defer-
ence to the legal rules our treaty partners adopt. It is not enough to
avoid inconsistent decisions on factually identical cases.

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664 OLYMPIC AIRWAYS v. HUSAIN
Scalia, J., dissenting
As for the Court’s hypothetical of the crew that refuses to
divert after a passenger collapses, ante, at 656: This would
be more persuasive as a reductio ad absurdum if the Elev-
enth Circuit had not already ruled out Article 17 liability in
substantially these very circumstances. See Krys v. Luf-
thansa German Airlines, 119 F. 3d 1515, 1517–1522, 1527–
1528 (1997). A legal construction is not fallacious merely
because it has harsh results. The Convention denies a rem-
edy, even when outrageous conduct and grievous injury have
occurred, unless there has been an “accident.” Whatever
that term means, it certainly does not equate to “outrageous
conduct that causes grievous injury.” It is a mistake to as-
sume that the Convention must provide relief whenever tra-
ditional tort law would do so. To the contrary, a principal
object of the Convention was to promote the growth of
the fledgling airline industry by limiting the circumstances
under which passengers could sue. See Tseng, 525 U. S., at
170–171. Unless there has been an accident, there is no lia-
bility, whether the claim is trivial, cf. Lee v. American Air-
lines Inc., 355 F. 3d 386, 387 (CA5 2004) (suit for “loss of a
‘refreshing, memorable vacation’ ”), or cries out for redress.
Were we confronting the issue in the first instance, per-
haps the Court could persuade me to its view. But courts
in two other countries have already rejected it, and their
reasoning is no less compelling than the Court’s. I would
follow Deep Vein Thrombosis and Povey and hold that mere
inaction cannot be an “accident” under Article 17.
II
Respondents argue that, even if the Convention distin-
guishes action from inaction, this case involves sufficient ele-
ments of action to support recovery. That argument is not
implausible; as noted earlier, the court in Deep Vein Throm-
bosis suggested that “[t]he refusal of the attendant to move
[Hanson] could be described as insistence that he remain
seated in the area exposed to smoke.” [2004] Q. B., at 254,

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Scalia, J., dissenting
¶ 50. I cannot agree with this analysis, however, because it
miscomprehends the facts of this case.
Preliminarily, I must note that this was not the rationale
of the District Court. That court consistently referred to
the relevant “accident” not as the flight attendant’s insist-
ence that Hanson remain seated, but as her “failure” or “re-
fusal” to reseat him. See 116 F. Supp. 2d 1121, 1131–1135
(ND Cal. 2000). Its findings of fact were infected by its er-
roneous legal assumption that Article 17 makes no distinc-
tion between action and inaction. The only question is
whether we can nonetheless affirm on the ground that, since
there was action in any event, this error was harmless.
It was not. True, in response to the first request, the
flight attendant insisted that Husain and her husband “ ‘have
a seat.’ ” Id., at 1125. This insistence might still have been
implicit in her response to the second request. But these
responses were both given while the plane was still on the
ground, preparing to take off. The flight attendant’s re-
sponse to Husain’s third request—made once the plane was
in the air and other passengers had started smoking—was
quite different. She did not insist that Husain and her hus-
band remain seated; on the contrary, she invited them to
walk around the cabin in search of someone willing to switch.
That the flight attendant explicitly refused Husain’s pleas
for help after the third request, rather than simply ignoring
them, does not transform her inaction into action. The re-
fusal acknowledged her inaction, but it was the inaction, not
the acknowledgment, that caused Hanson’s death. Unlike
the previous responses, the third was a mere refusal to as-
sist, and so cannot be the basis for liability under Article 17.
The District Court’s failure to make the distinction be-
tween the flight attendant’s pretakeoff responses and her in-
flight response undermines its decision in two respects.
First, the court’s findings as to airline and industry policy
did not distinguish between reseating a passenger while in
flight and reseating a passenger while still on the ground

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Scalia, J., dissenting
preparing to take off. In fact, some of the evidence on this
point specifically related only to in-flight behavior. See id.,
at 1132 (testimony of a chief cabin attendant that the flight
attendant should have reseated Hanson immediately after
Husain’s third request); ibid. (testimony of a company official
that its policy is to move passengers “who become ill during
flights” (emphasis added)). To establish that it is company
policy to reseat an asthmatic does not establish that it is
company policy to do so before takeoff, while the attendants
are busy securing the plane for departure and before anyone
has started smoking. In other words, there may have been
nothing unusual about the initial insistence that Hanson stay
seated, and for that reason no “accident.” We do not know
the policy in this more specific regard. The District Court
made no findings because it applied an erroneous legal stand-
ard that did not require it to distinguish among the three
requests.
But even if the flight attendant’s insistence that Hanson
remain seated before takeoff was unusual or unexpected, and
hence an accident, it was not a compensable cause of Han-
son’s death. It was perhaps a but-for cause (had the flight
attendant allowed him to move before takeoff, he might have
lived, just as he might have lived if he had taken a different
flight); but it was not a proximate cause, which is surely a
predicate for recovery. Any early insistence that Hanson
remain seated became moot once the attendant later told Hu-
sain and her husband they were free to move about.
There is, however, one complication, which I think re-
quires us to remand this case to the District Court: Although
the flight attendant, once the plane was aloft, invited Husain
to find another passenger willing to switch seats, she did
not invite Husain to find an empty seat, but to the contrary
affirmatively represented that the plane was full. If such a
misrepresentation is unusual and unexpected; and (the more
difficult question) if it can reasonably be said that it caused
Hanson’s death—i. e., that Husain would have searched for

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Scalia, J., dissenting
and found an empty seat, although unwilling to ask another
passenger to move—then a cause of action might lie. I
would remand so that the District Court could consider in
the first instance whether the flight attendant’s misrepresen-
tation about the plane’s being full, independent of any failure
to reseat, was an accident that caused Hanson’s death.
* * *
Tragic though Dr. Hanson’s death may have been, it does
not justify the Court’s putting us in needless conflict with
other signatories to the Warsaw Convention. I respect-
fully dissent.