Introduction
Passengers aged over fifty years often develop Deep Vein Thrombosis (DVT)during prolonged flights. The development of DVT among passengers is well documented but is not often experienced by pilots flying commercial aircraft; however, there are a few cases where pilots have developed DVT in the course of duty.The potential liability of airlines is much more expounded with respect to claims arising from injuries caused to passengers without any sort of monetary limitation. In order to address the problem and help balance the liability to a proper proportion, the Convention for the Unification of Certain Rules Relating to International Transport by Air was enacted. The Act, popularly known as the Warsaw Convention,serves to support the financially debilitated airline industry.The culmination of the Montreal Convention of 1999 also contributed to the shaping of the liability of airlines in case of accidents.
Prior to these conventions coming into effect, the liability of airlines was based solely on a passenger’sability to establishresponsibility for damage recovery arising from any harm caused to them during a flight. The goal of the conventions was to promote and enhance the airline business by limiting thepossible liability for harm or death to passengers. Article 17 of the Warsaw Convention is the applicable article with regards to the liability of air companies. This Article holds that airlines are only liable for accidents, however italso contains a caveat that not all accidents amount to a violation of the Convention. The general rule applicable in each case is that airlines are liable for any accident and damages resulting from injuries to or death of a passenger.
Despite setting the scope of liability, the Warsaw Convention does not precisely define the term ‘accident.The definition of an accident has been problematic because the Convention was first drafted in French which, when interpreted, would leave the judges unsure as to the intention of the drafters. The landmark case regarding this issue is Air France v. Saks. In this case, the Supreme Court was moved by the characterisation of accident as expounded by the French. In French, the word‘accident’, when used in relation to a cause of harm, meansan‘unexpected, or unusual, or unplanned event’.The Court, in adopting the definition, went further to affirm that an accident must be exterior to the traveller. Since the holding of Saks, judicial officers have found it difficult to effectively define the scope of the meaning of ‘accident’.
A paradigm shift occurred in the case of Olympic v. Husain in which the Supreme Court sought to assess the meaning of the word ‘accident’ in relation to airline injuries or loss suffered by passengers. The term ‘accident’ is the main factor that triggers liability and responsibility of airlines in relation to international flights. Olympic v. Husaininvolved an asthmatic man who was returning to the United States from a vacation. The wife of the man requested non-smoking seats as far away from the smokers as possible due to the husband’s condition. She received an assurance from the airline that the seats were as they requested. However, once on board the plane, they realised that they were sitting directly in front of the smoking section, meaning the smoke would blow towards the husband, thus putting him at a risk.The wife raised the issue with the flight attendant and the staff and requested a change of seats, which was ignored as the airline staff claimed the flight was full. This, however, was not true. In addition, some seats were being occupied by airline personnel.
The case was heard by the District Court in which the family won against the airline with the Court awarding USD2.8 million in damages. The company appealed the decision stating that the failure of the staff to respond to the needs of the wife could not be interpreted to mean an accident.The airline insisted that the actions of the flight attendants in not responding affirmatively did not fall within the meaning of an ‘accident’ since the wrong complained of did not constitute an event. In order for an accident to have occurred in line with Article 17 of the Warsaw Convention, there must be an event. Therefore, failure to act could not be interpreted to amount to an accident under the Warsaw Convention.
However, the Supreme Court held that failure by the staff and the airline attendants to respond to a demonstrated potential medical emergency infringed the internal airline rules and the standards of the airline industry. The holding of the case was in stark contrast to the holding of the UK Court, which stated that the failure of airline staff or attendants to act or respond to a request by a passenger is a non-event and, hence, does not qualify as an accident according to the Warsaw Convention.
The dissenting judges, O’Connor and Scalia, in disagreeing with the majority decision, stated that inaction by the airline crew or staff cannot satisfy the meaning of an accident under the Warsaw Convention. Justice Scalia stated that the majority failed to provide solemn contemplation as to how the Warsaw Convention has been interpreted by friendly jurisdictions, such as the United Kingdom and Australia, in resolving the legal issue. In the Deep Vein Thrombosis and Air Travel Group Litigation case, the English Court of Appeal stated that a critical issue for consideration is whether inaction can establish an accident under Article 17. The Court went on to affirm that it could not comprehend how inaction could be seen as an accident.
In the matter of Qantas Ltd v. Povey, the Australian Supreme Court was persuaded by the UK approach when it affirmed that allegations in relation to an accident within the meaning of Article 17 require more than inaction.
DVT Litigation and Accident under Warsaw Convention
Deep Vein Thrombosis (DVT) is a disorder that develops when blood clots in a deep vein of the lower leg. In certain circumstances, the blood clot can travel to the brain and lead to a stroke or even to the lungs, causing an embolism of the pulmonary glands thus creating oxygen supply failure, which can result in sudden death. As noted earlier, DVT develops after extended periods of immobility, particularly in circumstances where a passenger is confined to cramped seating.DVT is not necessarily an aviation-related condition but is often experienced during air travel. In Deep Vein Thrombosis & Air Travel Groups Litigation, the Court defined DVT as a disorder in which a blood clots develop in the leg’s deep veins. The Court went further to affirm that complications occur when the clot is passed along as an embolus. In addition, the Court recognised that an embolus might block blood in the event that it cannot pass through the blood vessel. Such blockage, the Court noted, could cause an embolism that may lead to death.
DVT is the most popular affliction that has monopolised the majority of claims against commercial carriers. Under the current Conventions, particularly Article 17 of the Warsaw Convention and 17.1 of the Montreal Convention, any case relating to global carriage would require scrutiny of the occasioning of an ‘accident. ’The two conventions require the claimant to prove an accident occurred before liability can be attached. The morphology of Article 17 of the Warsaw Convention could not be clearer. It supposes that liability for damage shall not attach to the carrier unless the accident that caused the harm occurred aboard the airplane or in the course of embarking or disembarking of the carrier. Article 17 of the Montreal Convention emphasises the position of the Warsaw Convention. It also supposes that a carrier can only be responsible for damages sustained when the accident causing death or injury occurred on board the plane.
However, the two provisions fail to define what can amount to an accident under the conventions. The explanation as to the meaning of an accident has been left to the Courts’ discretion. To this end, the Supreme Court of the US accepted and settled that the term means an‘unexpected or unusual happening that is external to the travelers’. The Court went ahead to exclude certain acts as not amounting to an accident under the meaning of the conventions. Accordingly, it affirmed that injuries that indisputably arise from an internal response to the natural, normal and anticipated actions of the plane are not considered accidents.To this end, the concept of an accident as espoused by the Conventions involves a matter of inquiry into the nature of the circumstances surrounding the cause of the injury rather than the due diligence taken by the staff to avoid the injury. The Courts have often adopted a more flexible approach in defining the scope of circumstances surrounding injuries caused to a passenger. In Saks, the deafness experienced by the passenger did not meet the Warsaw Convention’s meaning of an accident for being an internal reaction to the usual and expected operation of the plane. To this end, the Court did not impose liability on the airline.
The definition of an accident, as expounded by the Courts, involves a positive action on the part of the aircraft staff or employees during the time of travelling. The question as to whether liability can exist when there is inaction or omission on the part of the airline staff was a settled point. However, this question arose in Husain v. Olympic Aircraft, where the Court was confronted with the question as to whether liability can be attached for inaction. The starting point for the Court was the strict general rule that the judicial decision seemed to suggest at the time. Another factor which helped the Court was the lack of a definition for the term ‘accident’ in the conventions. Furthermore, the practice of the Courts in these situations has been to consider the nature and the circumstances in each case. The Husain case presented the Court with unique circumstances that led the Court to depart from the strict principle. The Court held that the failure to act amounted to an accident under the Warsaw Convention. According to the Court, the crew in the aircraft could have reduced or minimised the risk by a simple action without necessarily troubling the usual aircraft operation.
However, the most important issue was the approach adopted by the plaintiffs in advancing their case. In an endeavor to prove their case, the plaintiffs relied on the case of Saks, which is, in its entirety, the foundation of the strict rule on the definition of an ‘accident’. In particular, they relied on the Supreme Court’s affirmation that an accident must lead to injury of the passenger, but not necessarily the sole cause. They advanced the holding of the Court, which stated that the passenger must prove the connection was, in its nature, an unusual or unanticipated event external to the passenger.The Court moved to distinguish Husain from other cases by noting that failure by the passenger to notify the staff of pre-existing medical conditions did not in itself constitute unusual or unexpected outside events. However, the Court stated that failure by the airline crew to act in the face of an identified serious danger meets the scope of an accident under the Warsaw Convention. This is as far as there were practical options that could have minimised the peril and in so far as implementing such incentive would not obstruct the normal and ordinary processes of the aircraft.
The decision in Husain set in motion what would be a significant help to the plaintiffs in proving DVT liability of air carriers, especially for claims arising under the two conventions. In view of international flights, the most significant part of a DVT case is to prove the existence of an ‘accident’ as specified in the Warsaw and Montreal Conventions. The Husain case provides a significant path for going around the limitations that the Court laid out in Saks case. In Saks, the internal reactions by a person were considered not to meet the meaning of an accident. Arguments have been propounded that the same circumstances in Saks faced the Courts in Husain. To be more precise, it was the internal anaphylactic reaction by the husband of the plaintiff to the smoke that caused his death. However, Husain introduced new elements and questions to be asked before a determination is to be made on a particular case regarding the chain of events.
However, Husain also leaves some questions unanswered and relatively unexplored. One of the fundamental questions that the Court failed to elaborate on is how an action or inaction is considered to amount to an unexpected or unusual event. The second related question relates to the extent which inaction can fall within the definition of an ‘accident’ within the definition of Warsaw and Montreal Conventions. At the same time, the purposive approach and rule developed under Husain is likely to swallow the Saks rule. In view of the new rule, the claimant would only need to demonstrate the existence of unexpected action or inaction by the carrier staff to the ultimate injuries suffered.
Accordingly, under the new rule, an individual might notify the airline staff and crew of any condition or in extension that he or she is prone to DVT and, therefore, if not allowed to change seats to one with more legroom, he or she might suffer the DVT consequences. Similarly, an individual can also argue that failure by the airline crew or staff to instruct on the best method to avoid DVT constitutes the type, which is unusual and unexpected, for which liability would attach under the Husain approach. A rejection of a direct request from a passenger would amount to the terms of ‘event or happening’ as explained in Article 17 of the Warsaw Convention. In buttressing its position, the Supreme Court in Husain case stated that the Warsaw Convention does not provide any distinction as to action or inaction in determining the ultimate liability of the airline.
However, in Husain, as in other previous cases, the Court introduced an interpretive confusion in the international air law set up. It was proper for the Court to consider that the refusal by the crew and staff to assist the doctor was out of line and, thus, a breach of the expected standard of conduct of people acting in such capacity. To this end, the action was duly classified as unusual and unexpected. The Court, however, did not adequately address itself as to whether the action in itself was an external factor to the passenger. In the case of DVT, it cannot be argued that there is an existence of an external nature which might lead to an accident under the meanings set out in the Warsaw and Montreal Conventions. The components leading to a DVT cannot therefore be said to be an accident. The implication of the Husain case on the liability of airlines has extended beyond the scope of the Warsaw and the Montreal Conventions, at least according to the interpretation that has long been adopted by most countries.
However, in Husain, the Supreme Court’s adoption of a different approach might have the effect of extending the scope of liability. Perhaps the starting point would be to determine the reasons behind the enactment of the Warsaw and the Montreal Conventions in international air law. The question as to what the drafters of these conventions sought to address would be the best starting point to consider whether the holding in Husain goes against the wishes of the two conventions and is thus setting a bad precedence.
There was a general view before the Warsaw Convention came into effect that the liability of airlines was beyond the expectation of due diligence. Accordingly, airlines could be found liable for accidents towards which they did not contribute. To this end, the drafters sought to streamline the extent of liability of airlines through Article 17 of the Warsaw Convention. The same was carried through to Article 17.1 of the Montreal Convention. The second question is whether Articles 17 and 17.1 of the Warsaw and Montreal Conventions respectively ousted the duty of care and due diligence on the part of the airline towards the passengers.
It must be noted that the rule adopted by the US supreme Court in interpreting Article 17 in Saks was informed by two related factors. First, in Saks, the Court appraised itself of the fact that the original document of the Warsaw Convention was drafted in French. The second related factor was that the Court adopted the literal rule in interpreting the word ‘accident’. Thus, the Court adopted the meaning of ‘accident’ in French in coming up with the Saks rule.
The implications of this approach cannot be overstated, particularly since the global community has a variety of different languages. The adoption of the literal rule in interpreting a statute or section of a statute would not achieve the intended result, at least not in the long run. It is for this reason that courts have often found it hard to agree on the true intention of the drafters of Article 17 of the Warsaw Convention.
The decision by the Supreme Court in Husain seems to put this debate to rest and is a reflection of a purposive approach. The reasoning behind this argument is to consider whether the drafters intended to insulate airlines from liabilities of any nature regardless of whether they are external or internal or a mixture of both. The Court, in apportioning liability on the Olympic airline, affirms that failure to act in the face of imminent threat of life for which the airline crew has been notified would amount to an accident under the Warsaw Convention. The Supreme Court was highly influenced by the purposive approach in interpreting Article 17 in Husain. One of the most fundamental rationales behind the purposive rule is that it is flexible and allows judges to develop the law instead of the intention of Parliament. Accordingly, the approach in Saks was an interpretation in lieu of the literal meaning of ‘accident’ in French and, thus, not purposive. The rule in Saks limited the liability of airlines beyond what would attract liability under normal circumstances.
Marrying the decision in other jurisdictions, particularly the UK, with this new development seems futile on the face of it. The UK jurisdiction has stuck to the rule developed in Saks. For instance, in Deep Vein Thrombosis,the UK Court of Appeal refused to recognise that a failure by the crew to warn a passenger of the possibility of developing DVT could not be an accident within the meaning of Article 17 of the Warsaw Convention. Hence, damages cannot be recovered from such claims. Distinguishing this case and Husain is clearly evident in the circumstances of both cases. In Husain, there was a direct request that invoked a duty on the part of the crew, which they failed to duly satisfy. In the Deep Vein Thrombosis case, the incidence of notifying the crew did not exist and, thus, a duty to act could not arise apart from the general duty to ensure the safety of the passengers. The situation would have been different if the passenger had notified the crew of his or her propensity to developing DVT during long travel and should thus be allowed to change seats or be given a seat with more space to stretch their legs. A distinction was properly given by the Australian Supreme Court of Victoria inthePoveycase, in which they held that where the airline knows the risk of a passenger developing DTV, it must take necessary steps to minimise those risks. The decision in Australia seems to adopt both the United States’ view on liability and, at the same time, fails to disregard the decision of the English Court. The Court distinguished the decision based on the circumstances and affirmed the importance of notification for liability to exist. To this end, the Australian Supreme Court of Victoria embraced the decision of the US Supreme Court in Husain and the UK Court of Appeal in Deep Vein Thrombosis case.
Conclusion
Following the decision of the US Supreme Court in Husain, it is clear that there is a new jurisprudence developing away from the Saks case, which restricted the definition of an accident and liability for airlines. Litigating on DVT cases is set to change tremendously following the Husain case, as can already be seen in the approach adopted by the Australian Supreme Court in Victoria. It would be much easier for liability to be attached to an airline in circumstances where the crew or staff fail to respond to the calls of the passengers. This entails the issues complained of is internal but would require the input of the crew or staff to help the complaining passenger to avoid harm or injury which might cause or lead to death.Mounting a successful claim against an airline has become much easier in the wake of the Husain decision. At the same time, the case has not entirely disqualified the traditional form of application; it may still be used as an exception to prove special circumstances surrounding the case which, when considered, will call for liability to be attached to the airline. Accordingly, it is not entirely true that the failure by the crew to act would automatically amount to the liability of the airline. The first issue the Court would need to ascertain is whether the victim in question was at risk of developing a DVT. The second question is whether the victim or any other person who knew of his or her condition notified the crew or staff of the condition and requested that action be taken to avoid the occurrence of DVT. When these are satisfied, the Court will go on to consider the action taken by the crew or staff of the airplane in a bid to avoid or prevent DVT from developing.
Essentially, where the crew fails to act in the wake of such information, the Court would take their inaction as an external event leading to the suffering of DVT by a passenger and, in turn, hold them liable. The decision in Husain is thus an important one that has expanded the view of airline liability litigation despite the varied views in varied jurisdictions on the interpretation of Articles 17 and 17.1 of the Warsaw and the Montreal Conventions. In view of this development, it should not be lost to the litigants, as noted by the Court in Deep Vein Thrombosis case, that the proper interpretation of Article 17 of the Warsaw Convention does not include classic DVT cases in considering the scope of the Article.
Bibliography
Statutes
Convention for the Unification of Certain Rules Relating to International Carriage by Air, (Warsaw, 12 October 1929)
Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999)
Air France v. Saks, 105 S. Ct. 1338, 1345 (1985)
Olympic Airways v. Husain, 540 U.S. 644 (2004)
Povey v Qantas Airways Limited [2005] HCA 33. 223 CLR 189; 79 ALJR 1215
Re: Deep Vein Thrombosis and Air Travel Group Litigation case Publisher Citation: [2002] All ER (D) 369 (Dec). Neutral Citation: [2002] EWHC 2825 (QB)
Books & Journals
ArnoldussenCW, CatarinellaFS, Wittens CH. Critical Importance of Standardized Nomenclature and Classification in Venous Surgery and Interventional Treatments.PanVascular Medicine.2015:4565-83.
Aust A. Modern treaty law and practice. Cambridge University Press; 2013 Oct 24.
Colangelo M, Zeno-Zencovich V. Introduction to European Union transport law. Introduction to European Union Transport Law Collana’Consumatori e Mercato.2015(2).
Damar, Duygu. Wilful Misconduct in International Transport Law. Dordrecht: Springer, 2011. <http://public.eblib.com/choice/publicfullrecord.aspx?p=770095>.
Diederiks-Verschoor I. H., andButler M. A. An introduction to air law.Kluwer law international; 2006.
DiGiacomo D. End of an Evolution: From Air France v. Saks to Olympic Airways v. Husain-The Term Accident under Article 17 of the Warsaw Convention Has Come Full Circle, The. Pace. Int'l L. Rev.. 2004;16:409.
Gardiner R. Treaty interpretation. Oxford University Press, USA; 2015 Apr 9.
Goldhirsch, Lawrence B. The Warsaw Convention Annotated: A Legal Handbook. The Hague [u.a.]: Kluwer Law International, 2000.
Grönfors, Kurt. Air Charter and the Warsaw Convention: A Study in International Air Law. 1956. <http://dx.doi.org/10.1007/978-94-017-6762-0>.
Hollis, Duncan B. The Oxford Guide to Treaties. Oxford, U.K.: Oxford University Press, 2012.
Larsen, Paul B., Joseph C. Sweeney, and John E. Gillick. Aviation Law: Cases, Laws and Related Sources. Leiden: MartinusNijhoff Publishers, 2012.
Leloudas G. Risk and liability in air law. Taylor & Francis; 2013 May 2.
Murphy, Sean D. United States Practice in International Law. Cambridge, UK: Cambridge University Press, 2002.
Ndikum, Philip Forsang. Encyclopaedia of International Aviation Law: Volume 3 English and French Version Version. [Place of publication not identified]: Trafford Publishing, 2013.
Nutt KM. Air France v. Saks: An Accidental Interpretation of the Warsaw Convention. Am. UJ Int'l L. &Pol'y. 1986;1:195.
Schultz T, Mitchenson J. Navigating Sovereignty and Transnational Commercial Law: The Use of Comity by Australian Courts. Journal of Private International Law. 2016 Aug 25;12(2).
Tompkins G. N. Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999. Kluwer Law International; 2010.
