Attention All International Airlines and Flight Crews: Choosing Inaction Over Action No Longer Flies

The authors of this article (Paragraph No. 35,451) write that recently, the U.S. Supreme Court further clarified the definition of an as it applies to cases governed by the Warsaw Convention, a treaty governing international air carrier liability. In Olympic Airways v. Husain, the High Court expanded the definition to include inaction on the part of an airline's cabin crew. In this article, the authors take the view that the decision in Husain dictates a broader, more liberal definition of what constitutes an accident, thereby increasing the likelihood of success for injured parties. For years, international airlines and their flight crews have been blessed with a judicial interpretation of the term as it is used in Article 17 of the Warsaw Convention, which deals with a carrier's liability for injuries to passengers. Article 17 creates a presumption of liability on the part of the air carrier if an caused the injuries. At times, the judicial interpretation of has enabled airlines to escape liability by choosing inaction over action when faced with a passenger in distress. According to the authors, this conduct will no longer fly. In Husain, the Court held, the accident condition precedent to air carrier liability under Article 17 is satisfied when the carrier's unusual and unexpected refusal 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. In the authors' view, the holding re-emphasizes that now, more than ever, courts must flexibly apply the definition of after assessment of all of the circumstances surrounding a passenger's injuries. The article examines the status of the law prior to Husain, the case itself, and the likely effects it may have on future litigation.