Tibor Machan’s article Scalia’s Folly comments on Justice Antonin Scalia’s joshing/disparaging comments about libertarians in a recent case, as reported in Slate. The case, Olympic Airways v. Husain, is about what the term “accident” means for purposes airline liability (Article 17 of the Warsaw Convention provides that airlines are liable for death or injuries, resulting from an “accident.”)
and what happens if that accident happened simply because nothing happened, even if, as a result of the nonaccident, someone actually dies. In January 1988, Dr. Abid Hanson was traveling with his family on an Olympic Airways flight from Cairo to Athens to New York. Severely asthmatic, but unaware that there was smoking on international flights, Hanson was given a seat only three rows up from the airplane’s smoking section. His wife asked the flight attendant to move him up in the cabin, and the flight attendant told her to sit down. Later, his wife repeated the request, and the flight attendant told her the flight was full (a lie). Then the smoking and socializing started behind them, the cabin filled with smoke, Dr. Hanson began to suffer, and his wife again asked that he be moved forward. The flight attendant refused again, saying he was free to ask some other passenger to swap seats.
Dr. Hanson collapsed as he walked to the front of the plane, trying to get some air, and despite epinephrine injections, CPR, and other measures performed by another physician traveling in his party, he died shortly thereafter. Hanson’s wife sued the airline under the treaty that governs international flights—Article 17 of the Warsaw Convention. Article 17 provides that airlines are liable for death or injuries, resulting from an “accident.” In this case, a flight attendant refused to move an asthmatic man, Hanson, on an international flight, away from the smoking section; in the end, the man collapsed and died. A lower court ruled that the flight attendant’s refusal to move Hanson was an “accident” under the convention.
In the Supreme Court arguments, as reported in the Slate article, Scalia interrupted one of the attorneys, with a hypo in which a man “hurls himself into the sea, intending to commit suicide,” while nearby there is a dock with 30 people, each with a life preserver at his feet, all of whom refuse to throw a life preserver to the drowning guy. “I don’t know,” he adds. “Maybe they’re 30 libertarians.”
That’s the part that irked Machan and spurred him to write. But what i thought was funny was the last line below, from the Slate article:
“Scalia says even though that result would be “unexpected,” no one would call it an “accident.” Farr [Hanson’s widow’s lawyer] tries to distinguish between the “colloquial” use of the word accident and the legal. He says it would be an “accident” if the flight attendant slapped someone in the face or threw hot coffee on them.
“No, says Scalia, “If the flight attendant spills coffee, that’s an accident.”
“Farr says that even if the flight attendant was “purposefully throwing coffee,” it would still be an accident under Article 17 since that is the “gateway” to get to the willful misconduct claim. It seems, then, the only way to recover for the intentional hateful behavior of your stewardess under the Warsaw Convention is by characterizing it as “accidental.”
“Ever wonder why people hate lawyers?”
5:40 pm on November 14, 2003
