dissenting:

Although the majority adequately supports its conclusion, I am led to dissent because the majority has not faithfully followed the text of the Warsaw Convention (Convention), opened for signature Oct. 12, 1929, 49 Stat. 3000 , 137 L.N.T.S. 11 (entered into force Oct. 29, 1929). Saks alleges bodily injury as the result of normal aircraft cabin pressure changes during landing. Pressure changes are an everyday happening aboard commercial flights. The Convention, however, does not impose liability for all happenings, even if they cause damage.

The majority properly begins with the language of article 17 of the Convention: “The carrier shall be liable for ... bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft.. .. ” Unfortunately, the majority finds no other language in the Convention to assist in defining “accident.” Thus, the majority overlooks article 18 which does help define “accident”: “The carrier shall be liable for damage ... to any checked baggage or any goods, if the occurrence which caused the damage took place during the transportation by air.” The Convention’s United States text thus contemplates carrier liability for accidents injuring people and for occurrences damaging goods. The French text, see 49 Stat. 3000 , 3005, preserves the distinction, too: carrier liability for “l’accident qui a cause le dommage” to people and for “Pevenement qui a cause le dommage” to goods.

Instead of relying on this instructive language in the Convention itself, the majority turns to the Code of Federal Regulations for a definition of “accident.” But the section cited was designed to facilitate information reporting to the National Transportation Safety Board and has little bearing on the distinction between accidents and occurrences created by the text of the Convention itself.

Because the text of this document makes a distinction between accidents and occurrences, we must fashion our interpretation of the Convention to accomodate the difference. The distinction drawn by the Third Circuit makes sense: “Absent testimony indicating that the plane’s cabin pressure change was the result of some ‘unusual or unexpected happening,’ we have grave doubts that a finding that an accident occurred ... is legally supportable.” DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1197-98 (3d Cir.1978); see also Warshaw v. Trans World Airlines, Inc., 442 F.Supp. 400, 410 (E.D.Pa.1977) (“ ‘out of the ordinary,’ unanticipated incident” causing injury would amount to an “accident”).

*1389 The Third Circuit’s definition has nothing to do with negligence or the lack of it, so it would not undermine a proper concern for the elimination of the “due care” defenses accomplished by the Montreal Agreement, see Agreement C.A.B. No. 18900 (1966), reprinted in 1 L. Kreindler, Aviation Accident Law § 12A.03-.06 (1983); see also CAB Order No. E-23680, 31 Fed.Reg. 7302 (1966). If an unusual change in air pressure occurred, it would fit the requirement of an accident under the Convention and Saks could recover by operation of the Montreal Agreement whether or not Air France were at fault for, or had taken all due care to prevent, the unusual change.

Under the majority’s interpretation, an air carrier stands absolutely liable for any happening causing injury to a passenger. The carrier would serve as the absolute insurer of its passengers’ health. Assume a cardiac patient, excited by a normal takeoff, has a heart attack and dies. The majority would have the carrier pay. I would not. The heart attack would not arise from an accident; the smooth takeoff would not be an unusual occurrence, yet might be a proximate cause of death.

On the other hand, the rule of “unusual or unexpected occurrence” would not stifle recovery for typical accidents, even small ones. A passenger orders hot coffee in flight. As he sets it on his seat tray, the airplane hits a small pocket of clear-air turbulence and the coffee spills, burning him. Although small bumps from air turbulence are usual in commercial flight, any particular one may be unexpected and an accident under the Convention. The burned passenger can recover under the Convention.

Some accidents have a quality of unexpectedness because of the actions of the victim, too. Such was the case in Chutter v. KLM Royal Dutch Airlines, 132 F.Supp. 611 (S.D.N.Y.1955). A passenger does not usually get up when he should be sitting, go to the back of a plane, and step out the open door when the ramp crew has moved the stairs away. The aircraft and the ramp crew worked perfectly; the passenger was the defective link. In these eases, the air carrier need not concern itself with the absence of a due care defense after the Montreal Agreement because the defense of contributory negligence, see id. at 616 , remains undisturbed in article 21 of the Convention, see Department of State Memorandum, United States Government Action Concerning the Warsaw Convention 4 (May 5, 1966), reprinted in 1 L. Kreindler, Aviation Accident Law § 12A.07[1] (1983).

The analysis given in Sheris v. Sheris Co., 212 Va. 825 , 188 S.E.2d 367, 372 , cert. denied, 409 U.S. 878 , 93 S.Ct. 132 , 34 L.Ed.2d 132 (1972), of liability under the Convention after the Montreal Agreement, is also instructive:

The duty prescribed by the Convention of carriers to passengers remains unchanged by the Montreal Agreement: to transport as agreed, free of accidents, not of all occurrences. The agreed transport includes pressurization of the passenger cabin.

Another consideration is persuasive to me but apparently not to the majority. Until now, only one circuit court has spoken on this issue. The majority has chosen to create a conflict. When an occurrence, not an accident, happens on two non-stop flights, one between London and Los Angeles and the other between London and Philadelphia, whether the passenger recovers depends on where suit is brought. I believe there is a substantial interest in uniform interpretation of treaties such as the Convention. See Evangelinos v. Trans-World Airlines, Inc., 550 F.2d 152, 155 (3d Cir.1977); Block *1390 v. Compagnie Nationale Air France, 386 F.2d 323, 338 (5th Cir.1967), cert. denied, 392 U.S. 905 , 88 S.Ct. 2053 , 20 L.Ed.2d 1363 (1968). I would not create a conflict here.

Like Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256 (9th Cir.), cert. denied, 431 U.S. 974 , 97 S.Ct. 2939 , 53 L.Ed.2d 1072 (1977), the majority’s reading of the Convention “is bottomed on a social theory of compensation designed to spread the burden of damages from travel to all travelers,” id. at 1263 (Wallace, J., concurring in result), a theory alien to the Convention’s language, even accounting for the private Montreal Agreement. Recovery for damages under article 17 of the Convention requires more than travel or an occurrence; it requires an accident. Normal cabin depressurization is no accident. I would affirm the district court.