Air France v Saks (1985)470 U.S. 392
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October Term, 1984
Syllabus
AIR FRANCE v. SAKS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 83-1785. Argued January 15, 1985-Decided March 4, 1985
Article 17 of the Warsaw Convention makes air carriers
liable for injuries sustained by a passenger “if the
accident which caused the damage so sustained took place on
board the aircraft or in the course of any of the operations
of embarking or disembarking.” Respondent, while a passenger
on petitioner’s jetliner as it descended to land in Los
Angeles on a trip from Paris, felt severe pressure and pain
in her left ear, and the pain continued after the jetliner
landed. Shortly thereafter, respondent consulted a doctor
who concluded that she had become permanently deaf in her
left ear. She then filed suit in a California state court,
alleging that her hearing loss was caused by negligent
maintenance and operation of the jetliner’s pressurization
system. After the case was removed to Federal District
Court, petitioner moved for summary judgment on the ground
that respondent could not prove that her injury was caused
by an “accident” within the meaning of Article 17, the
evidence indicating that the pressurization system had
operated in a normal manner. Relying on precedent that
defines the term “accident” in Article 17 as an “unusual or
unexpected” happening, the District Court granted summary
judgment to petitioner. The Court of Appeals reversed,
holding that the language, history, and policy of the Warsaw
Convention and the Montreal Agreement (a private agreement
among airlines that has been approved by the Federal
Government) impose absolute liability on airlines for
injuries proximately caused by the risks inherent in air
travel; and that normal cabin pressure changes qualify as an
“accident” within the definition contained in Annex 13 to
the Convention on International Civil Aviation as meaning
“an occurrence associated with the operation of an
aircraft.”
Held: Liability under Artiele 17 arises only if a
passenger’s injury is caused by an unexpeeted or unusual
event or happening that is external to the passenger, and
not where the injury results from the passenger’s own
internal reaction to the usual, normal, and expected
operation of the aircraft, in which case it has not been
caused by an accident under Article 17. Pp. 396-408.
(a) The text of the Warsaw Convention suggests that the
passenger’s injury must be so caused. The difference in the
language of Article 17 imposing liability for injuries to
passengers caused by an “accident” and Artiele 18 imposing
liability for destruction or loss of baggage by an
“occurrence,” implies that the drafters of the Convention
understood the word “accident” to mean something different
than the word “occurrence.” Moreover, Article 17 refers to
an accident which caused the passenger’s injury, and not to
an accident which is the passenger’s injury. The text thus
implies that, however “accident” is defined, it is the cause
of the injury that must satisfy the definition rather than
the occurrence of the injury alone. And, since the Warsaw
Convention was drafted in French by continental jurists,
further guidanee is furnished by the Freneh legal meaning of
“accident” — when used to deseribe a cause of injury,
rather than the event of injury — as being a fortuitous,
unexpected, unusual, or unintended event. Pp. 397-400.
(b) The above interpretation of Artiele 17 is consistent
with the negotiating history of the Warsaw Convention, the
conduct of the parties thereto, and the weight of precedent
in foreign and American courts. Pp. 400-405.
(c) While any standard requiring courts to distinguish
causes that are “accidents” from causes that are
“occurrences” requires drawing a line that may be subject to
differences as to where it should fall, an injured passenger
is only required to prove that some link in the chain of
eauses was an unusual or unexpeeted event external to the
passenger. Enforcement of Article 17’s “accident”
requirement cannot be circumvented by reference to the
Montreal Agreement. That Agreement while requiring airlines
to waive “due care” defenses under Article 20(1) of the
Warsaw Convention, did not waive Article 17’s “aceident”
requirement. Nor can enforcement of Article 17 be escaped by
reference to the equation of “accident” with “occurrence” in
Annex 13, which, with its corresponding Convention,
expressly applies to aircraft accident investigations and
not to principles of liability to passengers under the
Warsaw Convention. Pp. 405-408.
724 F. 2d 1383, reversed and remanded.
O’Connor, J., delivered the opinion of the Court, in which
all other Members joined, except POWELL, J., who took no
part in the consideration or decision of the case.
Stephen C. Johnson argued the cause for petitioner. With him
on the briefs was Lawrence N. Minch.
Carroll E. Dubuc argued the cause for the Republic of France
as amicus curiae urging reversal. With him on the brief was
Peter Hoenig.
Bennett M. Cohen argued the cause for respondent. With him
on the brief were Daniel U. Smith and Alsoert R. Abramson. *
—————————- FN * ————————–
Briefs of amici curiae urging reversal were filed for the
United States by Solicitor General Lee, Acting Assistant
Attorney General Willard, Deputy Solicitor General Geller,
Alan I. Horowitz, and Mark H. Gallant; and for the
International Air Transport Assoeiation by Randal R. Craft,
Jr.
———————————————————–
JUSTICE O’CONNOR delivered the opinion of the Court.
Article 17 of the Warsaw Convention FN1 makes air carriers
liable for injuries sustained by a passenger “if the
accident which caused the damage so sustained took place on
board the aircraft or in the course of any of the operations
of embarking or disembarking.” We granted certiorari, 469 U.
S. 815 (1984), to resolve a conflict among the Courts of
Appeals as to the proper definition of the word “accident”
as used in this international air carriage treaty.
I
On November 16, 1980, respondent Valerie Saks boarded an Air
France jetliner in Paris for a 12-hour flight to Los
Angeles. The flight went smoothly in all respects until, as
the aircraft descended to Los Angeles, Saks felt severe
pressure and pain in her left ear. The pain continued after
the plane landed, but Saks disembarked without informing any
Air France crew member or employee of her ailment. Five days
later, Saks consulted a doctor who concluded that she had
become permanently deaf in her left ear.
Saks filed suit against Air France in California state
court, alleging that her hearing loss was caused by
negligent maintenance and operation of the jetliner’s
pressurization system. App. 2. The case was removed to the
United States District Court for the Central District of
California. After extensive discovery, Air France moved for
summary judgment on the ground that respondent could not
prove that her injury was caused by an “accident” within the
meaning of the Warsaw Convention. The term “accident,”
according to Air France, means an “abnormal, unusual or
unexpected occurrence aboard the aircraft.” Id., at 9. All
the available evidence, including the postflight reports,
pilot’s affidavit, and passenger testimony, indicated that
the aircraft’s pressurization system had operated in the
usual manner. Accordingly, the airline contended that the
suit should be dismissed because the only alleged cause of
respondent’s injury — normal operation of a pressurization
system — could not qualify as an “accident.” In her
opposition to the summary judgment motion, Saks acknowledged
that “[t]he sole question of law presented . . . by the
parties is whether a loss of hearing proximately caused by
normal operation of the aircraft’s pressurization system is
an ‘accident’ within the meaning of Article 17 of the Warsaw
Convention….” Id., at 30. She argued that “accident”
should be defined as a “hazard of air travel,” and that her
injury had indeed been caused by such a hazard.
Relying on precedent which defines the term “accident” in
Article 17 as an “unusual or unexpected” happening, see
DeMarines v. KLM Royal Dutch Airlines, 580 F. 2d 1193, 1196
(CA3 1978), the District Court granted summary judgment to
Air France. See also Warshaw v. Trans World Airlines, Inc.,
442 F. Supp. 400, 412-413 (ED Pa. 1977) (normal cabin
pressure changes are not “accidents” within the meaning of
Article 17). A divided panel of the Court of Appeals for the
Ninth Circuit reversed. 724 F. 2d 1383 (1984). The appellate
court reviewed the history of the Warsaw Convention and its
modification by the 1966 Montreal Agreement, a private
agreement among airlines that has been approved by the
United States Government. Agreement Relating to Liability
Limitations of the Warsaw Convention and the Hague Protocol,
Agreement CAB 18900, 31 Fed. Reg. 7302 (1966), note
following 49 U. S. C. App. 1502. The court concluded that
the language, history, and policy of the Warsaw Convention
and the Montreal Agreement impose absolute liability on
airlines for injuries proximately caused by the risks
inherent in air travel. The court found a definition of
“accident” consistent with this history and policy in Annex
13 to the Convention on International Civil Aviation, Dec.
7, 1944, 61 Stat. 1180, T. I. A. S. No. 1591, 15 U. N. T. S.
295; conformed to in 49 CFR 830.2 (1984): “an occurrence
associated with the operation of an aircraft which takes
place between the time any person boards the aircraft with
the intention of flight and all such persons have
disembarked ….” 724 F. 2d, at 1385. Normal cabin pressure
changes qualify as an “accident” under this definition. A
dissent agreed with the District Court that “accident”
should be defined as an unusual or unexpected occurrence.
Id., at 1388 (Wallace, J.). We disagree with the definition
of “accident” adopted by the Court of Appeals, and we
reverse.
II
Air France is liable to a passenger under the terms of the
Warsaw Convention only if the passenger proves that an
“accident” was the cause of her injury. MacDonald v. Air
Canada, 439 F. 2d 1402 (CA1 1971); Mathias v. Pan Am World
Airways, Inc., 53 F. R. D. 447 (WD Pa. 1971). See 1 C.
Shawcross & K. Beaumont, Air Law 11VII(147) (4th ed. 1984);
D. Goedhuis, National Airlegislations and the Warsaw
Convention 199 (1937). The narrow issue presented is whether
respondent can meet this burden by showing that her injury
was caused by the normal operation of the aircraft’s
pressurization system. The proper answer turns on
interpretation of a clause in an international treaty to
which the United States is a party. “[T]reaties are
construed more liberally than private agreements, and to
ascertain their meaning we may look beyond the written words
to the history of the treaty, the negotiations, and the
practical construction adopted by the parties.” Choctaw
Nation of Indians v. United States, 318 U. S. 423, 431-432
(1943). The analysis must begin, however, with the text of
the treaty and the context in which the written words are
used. See Maximov v. United States, 373 U. S. 49, 53-54
(1963).
A
Article 17 of the Warsaw Convention establishes the
liability of international air carriers for harm to
passengers. Article 18 contains parallel provisions
regarding liability for damage to baggage. The governing
text of the Convention is in the French language, and we
accordingly set forth the French text of the relevant part
of Articles 17 and 18 in the margin. FN2 The official
American translation of this portion of the text, which was
before the Senate when it ratified the Convention in 1934,
reads as follows:
“Article 17
“The carrier shall be liable for damage
sustained in the event of the death or
wounding of a passenger or any other
bodily injury suffered by a passenger, if
the accident which caused the damage so
sustained took place on board the aircraft
or in the course of any of the operations
of embarking or disembarking.
“Article 18
“(1) The carrier shall be liable for
damage sustained in the event of the
destruction or loss of, or of damage to,
any checked baggage or any goods, if the
occurrence which caused the damage so
sustained took place during the
transportation by air.” 49 Stat.
3018-3019.
Two significant features of these provisions stand out in
both the French and the English texts. First, Article 17
imposes liability for injuries to passengers caused by an
“accident,” whereas Article 18 imposes liability for
destruction or loss of baggage caused by an “occurrence.”
This difference in the parallel language of Articles 17 and
18 implies that the drafters of the Convention understood
the word “accident” to mean something different than the
word “occurrence,” for they otherwise logically would have
used the same word in each article. See Goedhuis, supra, at
200-201; M. Milde, The Problems of Liabilities in
International Carriage by Air 62 (Caroline Univ. 1963). The
language of the Convention accordingly renders suspect the
opinion of the Court of Appeals that “accident” means
“occurrence.”
Second, the text of Article 17 refers to an accident which
caused the passenger’s injury, and not to an accident which
is the passenger’s injury. In light of the many senses in
which the word “accident” can be used, this distinction is
significant. As Lord Lindley observed in 1903:
“The word ‘accident’ is not a technical
legal term with a clearly defined meaning.
Speaking generally, but with reference to
legal liabilities, an accident means any
unintended and unexpected occurrence which
produces hurt or loss. But it is often
used to denote any unintended and
unexpected loss or hurt apart from its
cause; and if the cause is not known the
loss or hurt itself would certainly be
called an accident. The word ‘accident’ is
also often used to denote both the cause
and the effect, no attempt being made to
discriminate between them.” Fenton v. J.
Thorley & Co., [1903] A. C. 443, 453.
In Article 17, the drafters of the Warsaw Convention
apparently did make an attempt to discriminate between “the
cause and the effect”; they specified that air-carriers
would be liable if an accident caused the passenger’s
injury. The text of the Convention thus implies that,
however we define “accident,” it is the cause of the injury
that must satisfy the definition rather than the occurrence
of the injury alone. American jurisprudence has long
recognized this distinction between an accident that is the
cause of an injury and an injury that is itself an accident.
See Landress v. Phoenix Mutual Life Ins. Co., 291 U. S. 491
(1934).
While the text of the Convention gives these two clues to
the meaning of “accident,” it does not define the term. Nor
is the context in which the term is used illuminating. See
Note, Warsaw Convention-Air Carrier Liability for Passenger
Injuries Sustained Within a Terminal, 45 Ford. L. Rev. 369,
388 (1976) (“The language of Article 17 is stark and
undefined”). To determine the meaning of the term “accident”
in Article 17 we must consider its French legal meaning. See
Reed v. Wiser, 555 F. 2d 1079 (CA2), cert. denied, 434 U. S.
922 (1977); Block v. Compagnie N’ationale Air France, 386 F.
2d 323 (CA5 1967), cert. denied, 392 U. S. 905 (1968). This
is true not because “we are forever chained to French law”
by the Convention, see Rosman v. Trans World Airlines, Inc.,
34 N. Y. 2d 385, 394, 314 N. E. 2d 848, 853 (1974), but
because it is our responsibility to give the specific words
of the treaty a meaning consistent with the shared
expectations of the contracting parties. Reed, supra, at
1090; Day v. Trans World Airlines, Inc., 528 F. 2d 31 (CA2
1975), cert. denied, 429 U. S. 890 (1976). We look to the
French legal meaning for guidance as to these expectations
because the Warsaw Convention was drafted in French by
continental jurists. See Lowenfeld & Mendelsohn, The United
States and the Warsaw Convention, 80 Harv. L. Rev. 497,
498-500 (1967).
A survey of French cases and dictionaries indicates that the
French legal meaning of the term “accident” differs little
from the meaning of the term in Great Britain, Germany, or
the United States. Thus, while the word “accident” is often
used to refer to the event of a person’s injury, FN3 it
is also sometimes used to describe a cause of injury, and
when the word is used in this latter sense, it is usually
defined as a fortuitous, unexpected, unusual, or unintended
event. See 1 Grand Larousse de La Langue Francaise 29 (1971)
(defining “accident” as “Evenement fortuit et facheux,
causant des dommages corporels ou materiels”); Air France v.
Haddad, Judgment of June 19, 1979, Cour d’appel de Paris,
Premiere Chambre Civile, 1979 Revue Francaise de Droit
Aerien 327, 328, appeal rejected, Judgment of February 16,
1982, Cour de Cassation, 1982 Bull. Civ. I 63. This
parallels British and American jurisprudence. See Fenton v.
J. Thorley & Co., supra; Landress v. Phoeniz Mutual Life
Ins. Co., supra; Koehring Co. v. American Automobile Ins.
Co., 353 F. 2d 993 (CA7 1965). The text of the Convention
consequently suggests that the passenger’s injury must be
caused by an unexpected or unusual event.
B
This interpretation of Article 17 is consistent with the
negotiating history of the Convention, the conduct of the
parties to the Convention, and the weight of precedent in
foreign and American courts. In interpreting a treaty it is
proper, of course, to refer to the records of its drafting
and negotiation. Choctaw Nation of Indians v. United States,
318 U. S., at 431. In part because the “travaux
preparatoires” of the Warsaw Convention are published and
generally available to litigants, courts frequently refer to
these materials to resolve ambiguities in the text. See
Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U. S.
243, 259 (1984); Maugnie v. Companie Nationale Air France,
549 F. 2d 1256 (CA9 1977); Fothergill v. Monarch Airlines,
Ltd., [1980] 2 All E. R. 696 (H. L.).
The treaty that became the Warsaw Convention was first
drafted at an international conference in Paris in 1925. The
protocol resulting from the Paris Conference contained an
article specifying: “The carrier is liable for accidents,
losses, breakdowns, and delays. It is not liable if it can
prove that it has taken reasonable measures designed to
pre-empt damage ….” FN4 The protocol drafted at Paris was
revised several times by a committee of experts on air law,
FN5 and then submitted to a second international
conference that convened in Warsaw in 1929. The draft
submitted to the conference stated:
“The carrier shall be liable for damage
sustained during carriage:
“(a) in the case of death, wounding, or
any other bodily injury suffered by a
traveler;
“(b) in the case of destruction, loss, or
damage to goods or baggage;
“(c) in the case of delay suffered by a
traveler, goods, or baggage.”
International Conference on Air Law
Affecting Air Questions, Minutes, Second
International Conference on Private
Aeronautical Law, October 4-12, 1929,
Warsaw 264-265 (R. Horner & D. Legrez
trans. 1975).
Article 22 of this draft, like the original Paris draft,
permitted the carrier to avoid liability by proving it had
taken reasonable measures to avoid the damage. Id., at 265.
None of the early drafts required that an accident cause the
passenger’s injury.
At Warsaw, delegates from several nations objected to the
application of identical liability rules to both passenger
injuries and damage to baggage, and the German delegation
proposed separate liability rules for passengers and
baggage. Id., at 36. The need for separate rules arose
primarily because delegates thought that liability for
baggage should commence upon delivery to the carrier,
whereas liability for passengers should commence when the
passengers later embark upon the aircraft. Id., at 72-74
(statements of French, Swiss, and Italian delegates). The
Reporter on the Preliminary Draft of the Convention argued
it would be too difficult to draft language specifying this
distinction, and that such a distinction would be
unnecessary because “Article 22 establishes a very mitigated
system of liability for the carrier, and from the moment
that the carrier has taken the reasonable measures, he does
not answer for the risks, nor for the accidents occur[r]ing
to people by the fault of third parties, nor for accidents
occur[r]ing for any other cause.” Id., at 77-78 (statement
of Reporter De Vos). The delegates were unpersuaded, and a
majority voted to have a drafting committee rework the
liability provisions for passengers and baggage. Id., at 83.
A few days later, the drafting committee proposed the
liability provisions that became Articles 17 and 18 of the
Convention. Article 20(1) of the final draft contains the
“necessary measures” language which the Reporter believed
would shield the carrier from liability for “the accidents
occur[rting to people by the fault of third parties” and for
“accidents occur[r]ing for any other cause.” Nevertheless,
the redrafted Article 17 also required as a prerequisite to
liability that an accident cause the passenger’s injury,
whereas the redrafted Article 18 required only that an
occurrence cause the damage to baggage. Although Article 17
and Article 18 as redrafted were approved with little
discussion, the President of the drafting committee observed
that “given that there are entirely different liability
cases: death or wounding, disappearance of goods, delay, we
have deemed that it would be better to begin by setting out
the causes of liability for persons, then for goods and
baggage, and finally liability in the case of delay.” Id.,
at 205 (statement of Delegate Giannini) (emphasis added).
This comment at least implies that the addition of language
of causation to Articles 17 and 18 had a broader purpose
than specification of the time at which liability commenced.
It further suggests that the causes of liability for persons
were intended to be different from the causes of liability
for baggage. The records of the negotiation of the
Convention accordingly support what is evident from its
text: A passenger’s injury must be caused by an accident,
and an accident must mean something different than an
“occurrence” on the plane. Like the text of the Convention,
however, the records of its negotiation offer no precise
definition of “accident.”
Reference to the conduct of the parties to the
Convention and the subsequent interpretations of the
signatories helps clarify the meaning of the term. At a
Guatemala City International Conference on Air Law in 1971,
representatives of many of the Warsaw signatories approved
an amendment to Article 17 which would impose liability on
the carrier for an “event which caused the death or injury”
rather than for an “accident which caused” the passenger’s
injury, but would exempt the carrier from liability if the
death or injury resulted “solely from the state of health of
the passenger.” International Civil Aviation Organization, 2
Documents of the International Conference on Air Law,
Guatemala City, ICAO Doc. 9040-LC/167-2, p. 189 (1972). The
Guatemala City Protocol of 1971 and the Montreal Protocols
Nos. 3 and 4 of 1975 include this amendment, see S. Exec.
Rep. No. 98-1 (1983), but have yet to be ratified by the
Senate, and therefore do not govern the disposition of this
case. The statements of the delegates at Guatemala City
indicate that they viewed the switch from “accident” to
“event” as expanding the scope of carrier liability to
passengers. The Swedish Delegate, for example, in referring
to the choice between the words “accident” and “event,”
emphasized that the word “accident” is too narrow because a
carrier might be found liable for “other acts which could
not be considered as accidents.” See International Civil
Aviation Organization, 1 Minutes of the International
Conference on Air Law, ICAO Doc. 9040-LC/167-1, p. 34
(1972). See also Mankiewicz, Warsaw Convention: The 1971
Protocol of Guatemala City, 20 Am. J. Comp. L. 335, 337
(1972) (noting that changes in Article 17 were intended to
establish “strict liability”).
In determining precisely what causes can be considered
accidents, we “find the opinions of our sister signatories
to be entitled to considerable weight.” Benjamins v. British
European Airways, 572 F. 2d 913, 919 (CA2 1978), cert.
denied, 439 U. S. 1114 (1979). While few decisions are
precisely on point, we note that, in Air France v. Haddad,
Judgment of June 19, 1979, Cour d’appel de Paris, Premiere
Chambre Civile, 1979 Revue Frangaise de Droit Aerien, at
328, a French court observed that the term “accident” in
Article 17 of the Warsaw Convention embraces causes of
injuries that are fortuitous or unpredictable. European
legal scholars have generally construed the word “accident”
in Article 17 to require that the passenger’s injury be
caused by a sudden or unexpected event other than the normal
operation of the plane. See, e. 9., O. Riese & J. Lacour,
Precis de Droit Aerien 264 (1951) (noting that Swiss and
German law require that the damage be caused by an accident,
and arguing that an accident should be construed as an event
which is sudden and independent of the will of the carrier);
1 C. Shawcross & K. Beaumont, Air Law 11 VII(148) (4th ed.
1984) (noting that the Court of Appeals for the Third
Circuit’s definition of accident accords with some English
definitions and “might well commend itself to an English
court”). These observations are in accord with American
decisions which, while interpreting the term “accident”
broadly, Maugnie v. Compagnie Nationale Air France, 549 F.
2d, at 1259, nevertheless rlfuse to extend the term to cover
routine travel procedures that produce an injury due to the
peculiar internal condition of a passenger. See, e. g.,
Abramson v. Japan Airlines Co., 739 F. 2d 130 (CA3 1984)
(sitting in airline seat during normal flight which
aggravated hernia not an “accident”), cert. pending, No.
84-939; MacDonald v. Air Canada, 439 F. 2d 1402 (CA5 1971)
(fainting while waiting in the terminal for one’s baggage
not shown to be caused by an “accident”); Scherer v. Pan
American World Airways, Inc., 54 App. Div. 2d 636, 387 N. Y.
S. 2d 580 (1976) (sitting in airline seat during normal
flight which aggravated thrombophlebitis not an “accident”).
III
We conclude that liability under Article 17 of the Warsaw
Convention arises only if a passenger’s injury is caused by
an unexpected or unusual event or happening that is external
to the passenger. This definition should be flexibly applied
after assessment of all the circumstances surrounding a
passenger’s injuries. Maugnie, supra, at 1262. For example,
lower courts in this country have interpreted Article 17
broadly enough to encompass torts committed by terrorists or
fellow passengers. See Evangelinos v. Trans World Airlines,
Inc., 550 F. 2d 152 (CA3 1977) (en banc) (terrorist attack);
Day v. Trans World Airlines, Inc., 528 F. 2d 31 (CA2 1975)
(en banc) (same), cert. denied, 429 U. S. 890 (1976);
Krystal v. British Overseas Airways Corp., 403 F. Supp. 1322
(CD Cal. 1975) (hijacking); Oliver v. Scandinavian Airlines
System, 17 CCH Av. Cas. 18,283 (Md. 1983) (drunken passenger
falls and injures fellow passenger). In cases where there is
contradictory evidence, it is for the trier of fact to
decide whether an “accident” as here defined caused the
passenger’s injury. See DeMarines v. KLM Royal Dutch
Airlines, 580 F. 2d 1193 (CA3 1978) (contradictory evidence
on whether pressurization was normal). See also Weintraub v.
Capitol Intern.ational Airways, Inc., 16 CCH Av. Cas. 18,058
(N. Y. Sup. Ct., 1st Dept., 1981) (plaintiff’s testimony
that “sudden dive” led to pressure change causing hearing
loss indicates injury was caused by an “accident”). But when
the injury indisputably results from the passenger’s own
internal reaction to the usual, normal, and expected
operation of the aircraft, it has not been caused by an
accident, and Article 17 of the Warsaw Convention cannot
apply. The judgment of the Court of Appeals in this case
must accordingly be reversed.
We recognize that any standard requiring courts to
distinguish causes that are “accidents” from causes that are
“occurrences” requires drawing a line, and we realize that
“reasonable [people] may differ widely as to the place where
the line should fall.” Schlesinger v. Wisconsin, 270 U. S.
230, 241 (1926) (Holmes, J., dissenting). We draw this line
today only because the language of Articles 17 and 18
requires it, and not because of any desire to plunge into
the “Serbonian bog” that accompanies attempts to distinguish
between causes that are accidents and injuries that are
accidents. See Landress v. Phoenix Mutual Life Ins. Co., 291
U. S., at 499 (Cardozo, J., dissenting). Any injury is the
product of a chain of causes, and we require only that the
passenger be able to prove that some link in the chain was
an unusual or unexpected event external to the passenger.
Until Article 17 of the Warsaw Convention is changed by the
signatories, it cannot be stretched to impose carrier
liability for injuries that are not caused by accidents. It
remains “[o]ur duty . . . to enforce the . . . treaties of
the United States, whatever they might be, and . . . the
Warsaw Convention remains the supreme law of the land.”
Reed, 555 F. 2d, at 1093.
Our duty to enforce the “accident” requirement of Article 17
cannot be circumvented by reference to the Montreal
Agreement of 1966. It is true that in most American cases
the Montreal Agreement expands carrier liability by
requiring airlines to waive their right under Article 20(1)
of the Warsaw Convention to defend claims on the grounds
that they took an necessary measures to avoid the
passenger’s injury or that it was impossible to take such
measures. Because these “due care” defenses are waived by
the Montreal Agreement, the Court of Appeals and some
commentators have characterized the Agreement as imposing
“absolute” liability on air carriers. See Lowenfeld &
Mendelsohn, 80 Harv. L. Rev., at 599. As this case
demonstrates, the characterization is not entirely accurate.
It is true that one purpose of the Montreal Agreement was to
speed settlement and facilitate passenger recovery, but the
parties to the Montreal Agreement promoted that purpose by
specific provision for waiver of the Article 20(1) defenses.
They did not waive other provisions in the Convention that
operate to qualify liability, such as the contributory
negligence defense of Article 21 or the “accident”
requirement of Article 17. See Warshaw, 442 F. Supp., at
408. Under the Warsaw Convention as modified by the Montreal
Agreement, liability can accordingly be viewed as “absolute”
only in the sense that an airline cannot defend a claim on
the ground that it took all necessary measures to avoid the
injury. The “accident” requirement of Article 17 is distinct
from the defenses in Article 20(1), both because it is
located in a separate article and because it involves an
inquiry into the nature of the event which caused the injury
rather than the care taken by the airline to avert the
injury. While these inquiries may on occasion be similar, we
decline to employ that similarity to repeal a treaty
provision that the Montreal Agreement on its face left
unaltered.
Nor can we escape our duty to enforce Article 17 by
reference to the equation of “accident” with “occurrence” in
Annex 13 to the Convention on International Civil Aviation.
The definition in Annex 13 and the corresponding Convention
expressly apply to aircraft accident investigations, and not
to principles of liability to passengers under the Warsaw
Convention. See B. Cheng, The Law of International Air
Transport 106-165 (1962).
Finally, respondent suggests an independent ground
supporting the Court of Appeals’ reversal of the summary
judgment against her. She argues that her original complaint
alleged a state cause of action for negligence independent
of the liability provisions of the Warsaw Convention, and
that her state negligence action can go forward if the
Warsaw liability rules do not apply. Expressing no view on
the merits of this contention, we note that it is unclear
from the record whether the issue was raised in the Court of
Appeals. We leave the disposition of this claim to the Court
of Appeals in the first instance. See Hoover v. Ronwin, 466
U. S. 558, 574, n. 25 (1984).
The judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
JUSTICE POWELL took no part in the consideration or decision
of this case.
——————–
1. Convention for the Unifieation of Certain Rules Relating
to International Transportation by Air, Oet. 12, 1929,
49 Stat. 3000, T. S. No. 876 (1934), note following 49
U. S. C. App. 1502.
2. Article 17
“Le transporteur est responsable du dommage survenu en
eas de mort, de blessure ou de toute autre lesion
eorporelle subie par un voyageur lorsque l’aecident qui
a cause le dommage s’est produit a bord de l’aeronef ou
au eours de toutes operations d’embarquement et de
debarquement.
“Article 18
“(1) Le transporteur est responsable du dommage survenu
en eas destruction, perte ou avarie de bagages
enregistres ou de marehandises lorsque l’evenement qui a
cause le dommage stest produit pendant le transport
aerien.” 49 Stat. 3005 (emphasis added).
Article 36 of the Convention recites that it is drawn in
French. Id., at 3008.
3. See, e. g., M. LeGrand, Dictionnaire Usuel de Droit 8
(1931) (defining “accident” as “Evenement fortuit et
malheureux qui ouvre a la vietime, soit par suite de
l’imprevoyanee ou de la negligence d’une personne, soit
en vertu du ‘risque professionel,’ droit a une
reparation pecuniaire”).
4. “Le transporteur est responsable des accidents, pertes,
avaries et retards. Il n’est pas responsable s’il prouve
avoir pris les mesures raisonnables pour eviter le
dommage ….” [1925 Paris] Conference Internationale de
Droit Prive Aerien 87 (1936).
5. See Report of the Second Session, International
Technical Committee of Legal Experts on Air Questions
(1927); Report of the Third Session, International
Technieal Committee of Legal Experts on Air Questions
(1928).