aircraft" was injured by an Article 17 accident. Saks, 470 U.S. at
396, 105 S.Ct. at 1341.
The Court carefully examined the text and negotiating history of the
Warsaw Convention. The Court noted the distinct language employed for
personal injury and loss of baggage in the Warsaw Convention. Article 17
imposes liability for personal injury caused by an "accident," whereas
Article 18 imposes liability for loss or damage to baggage caused by an
"occurrence." Thus, the Court reasoned that an accident must mean
something more than an occurrence on the plane. The Court held 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." Id. at 405, 105 S.Ct. at 1345.
The Court recognized that the misconduct of a fellow passenger could be
an "accident." Id. at 405, 105 S.Ct. at 1345. The Second Circuit has
recently addressed this issue in the context of a sexual assault. Wallace,
214 F.3d 293. The Wallace plaintiff was seated in economy class on a Korean
Air flight. The passenger seated next to her sexually assaulted her while
she was sleeping. The district court held that the incident was not an
"accident" for purposes of Article 17 because there "was no act or omission
by the aircraft or airline personnel representing a departure from the
normal, expected operation of a flight," and because "sexual
molestation . . . is not a risk characteristic of air travel or related to
the operation of an airplane." Wallace v. Korean Air, No. 98 Civ. 1039, 1999
WL 187213, at *4-*5 (S.D.N.Y. Apr. 6, 1999).
The Second Circuit reversed, holding that the assault in Wallace was a
risk characteristic of air travel. Wallace, 214 F.3d at 299. The court noted
that Wallace "was cramped into a confined space beside two men she did not
know, one of whom turned out to be a sexual predator." Id. Lahey's position
is indistinguishable. Lahey was seated in the confined space of economy
class, in front of a man she did not know, who turned out to be violently
hostile to Lahey's desire to recline in her seat.
Contrary to the position defendant advanced at trial, the actions of the
crew are not relevant to the determination of whether the assault was an
"accident" because it is clear that nothing in the term "accident" suggests
a requirement of culpable conduct on the part of the airline crew. Lahey
testified that she was "shocked and surprised" when she was struck on the
temple from between the seats. No member of the crew expected that DeKoning
would throw his tray at Lahey. The incident was certainly "unexpected and
unusual" and "external" to Lahey. Saks, 470 U.S. at 396, 105 S.Ct. at 1341.
As such, it was an accident under Article 17.
During the trial, Lahey sought to recover her attorney's fees for this
action under the Warsaw Convention. Plaintiff pointed to the Montreal
Agreement of 1966,*fn2 which raised the liability limit to $75,000, in
support of her claim for attorney's fees. The Montreal Agreement reads,
in pertinent part:
The limit of liability for each passenger for death, wounding, or
other bodily injury shall be the sum of US $75,000 inclusive of legal
fees and costs, except that in case of a claim brought in a State
where provision is made for separate award of legal fees and
costs, the limit shall be the sum of US $58,000 exclusive of legal
fees and costs. (emphasis added).
Plaintiff argued that this language permits legal fees to be awarded in the
United States, where such awards are not separately
made, so long as the total amount awarded does not exceed $75,000.
But the purpose of this language was to provide sufficient recovery
in those countries in which the plaintiff bears his own fees,
while not providing too great a recovery in countries in which
a victorious plaintiff is separately compensated for his legal
fees in addition to his damages. See generally, Andreas F. Lowenfeld
and Allan I. Mendelsohn, The United States and the Warsaw Convention,
80 Harv. L. Rev. 497, 552-76 (1967) (discussing the Montreal
Agreement). This language and its history do not authorize a deviation from
the American rule, which requires each party to pay its own attorneys in the
absence of an express statutory provision to the contrary. See Alyeska
Pipeline Serv. Co. v. The Wilderness Soc., 421 U.S. 240, 247, 95 S.Ct. 1612,
1616, 44 L.Ed.2d 141 (1975).
The only remaining question is the amount of Lahey's damages. Lahey did
not seek medical care after the plane arrived in New York. She received no
pain medication, and has presented no evidence of medical bills. Her
eyeglasses were broken, but she presented no evidence of either their value
or their replacement cost. Lahey was understandably upset as a result of the
incident and feared that DeKoning might cause further harm. She suffered a
cut on her nose and her scalp. She had a bump on her head that was sore for
a few weeks, and she still has a small dent in her head where she was
struck. Although Singapore argues that Lahey's own negligence contributed
to the incident, and that her damages should be proportionately diminished
in accordance with Article 21, Singapore does not point to any evidence of
improper conduct by Lahey that proximately caused her injuries.
Lahey is awarded $10,000 as compensation for her physical injuries and
mental anguish. The Clerk is directed to enter judgment for the plaintiff
in that amount plus taxable costs.
The foregoing shall constitute my findings of fact and conclusions of law
under Fed.R.Civ.P. 52(a).