Valerie H. Saks v. Air France, a Corporation

Plaintiff-appellant, Valerie Saks, suffered a permanent hearing loss in her left ear while she was a passenger on an international flight operated by the defendant airline, Air France. The alleged cause was normal cabin pressurization changes during landing. Saks sued Air France for damages under Article 17 of the Warsaw Convention, Oct. 12, 1929, 49 Stat. 3000 (1934), 137 L.N. T.S. (1929), art. 17. The district court granted summary judgment for the airline on the ground that an injury caused by an air carrier’s normal operation is not an “accident” within the meaning of Article 17. Relying on two cases out of the Third Circuit, the district court ruled Saks could not recover damages unless she could show some malfunction or abnormality in the aircraft’s operation. See DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (3d Cir.1978); Warshaw v. Trans World Airlines, Inc., 442 F.Supp. 400 (E.D.Pa.1977).

We reverse because we hold that a showing of a malfunction or abnormality in the aircraft’s operation is not a prerequisite for liability under the Warsaw Convention. Imposition of such a requirement is not supported by either the language and history of the Warsaw Convention,…

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…

724 F.2d 1383 Valerie H. SAKS, Plaintiff-Appellant, v. AIR FRANCE, a corporation, et al., Defendants-Appellees. No. 83-1625. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 14, 1983. Decided Jan. 31, 1984. Bennett Cohen, Abramson & Bianco, San Francisco, Cal., for plaintiff-appellant. Randall S. Farrimond, Lillick, McHose & Charles, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before WALLACE, SCHROEDER and FERGUSON, Circuit Judges. SCHROEDER, Circuit Judge. 1 Plaintiff-appellant, Valerie Saks, suffered a permanent hearing loss in her left ear while she was a passenger on an international flight operated by the defendant airline, Air France. The alleged cause was normal cabin pressurization changes during landing. Saks sued Air France for damages under Article 17 of the Warsaw Convention, Oct. 12, 1929, 49 Stat. 3000 (1934), 137 L.N.T.S. (1929), art. 17. The district court granted summary judgment for the airline on the ground that an injury caused by an air carrier's normal operation is not an "accident" within the meaning of Article 17. Relying on two cases out…