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August 26, 2003


The opinion of the court was delivered by: Bernard Zimmerman, Magistrate Judge


In this action, plaintiff Jang Sool Kwon seeks damages from defendant Singapore Airlines for injuries Dr. Kwon allegedly received during the boarding process for Singapore Airlines flight number SQ0015 in San Francisco, California.*fn1 The parties agree that this action is exclusively governed by the Warsaw Convention.*fn2 This case was bifurcated for trial. Trial of all liability issues, including defenses to liability, commenced [ Page 2]

on July 28, 2003. Having considered and weighed all the evidence and having assessed the credibility of the witnesses, I now make these findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).

On April 28, 2001, after purchasing an airline ticket in California, Dr. Kwon boarded flight number SQ0015 in San Francisco, California to travel to Korea. The plane was a A340-300E Celestar. Dr. Kwon's assigned seat, 59D, was in the economy class section in the rear of the aircraft. The economy section of the plane had two aisles, with two seats on each side of the plane and three seats in the middle of the plane.

There were six flight attendants, including Mr. Colin Kam, the chief steward, stationed in the economy class section of flight number SQ0015 during boarding. The crew members are responsible for, among other things, assisting passengers who need help in stowing their luggage in the overhead bins. Two flight attendants were stationed in each aisle at row 31, at row 40 and at row 49. During boarding, flight attendants are supposed to remain at their stations, but may move around near their stations to assist passengers. Defendant has a policy that allows economy class passengers to bring on board one piece of carry-on baggage, which does not exceed seven kilograms and 115 total centimeters.

Dr. Kwon was in the first group of passengers, after those needing special assistance, boarding the economy section of the aircraft. As Dr. Kwon made his way to his seat, he found that the aisle was blocked just beyond the [ Page 3]

movie screen that is located at row 45, by a short, heavyset woman wearing high heels who was struggling to "push" her luggage into the overhead bin. Dr. Kwon was standing close to this passenger as she made at least five attempts to stow her luggage. There were many passengers lined up behind Dr. Kwon in the aisle, but there were no passengers between the struggling passenger and the back of the plane. After the passenger successfully pushed her luggage into the overhead bin, she lost her balance, stepped back and the heel of her shoe landed on Dr. Kwon's left foot, injuring one of his toes. Dr. Kwon then fell to the right and injured his thumb. The chief steward and a flight attendant who spoke to Dr. Kwon during the flight did not witness the incident.

Article 17 of the Warsaw Convention sets forth the conditions of liability for personal injury to passengers:

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.(emphasis added)
see also Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535-36 (1991). Originally, the Warsaw Convention capped liability at approximately $8,300 per passenger. Warsaw Convention Art. 22; Wallace v. Korean Air, 214 F.3d 293, 296 (2nd Cir. 2000). In response to the United States' threat to withdraw from the Convention if the limits on liability were not increased, air carriers reached the Montreal Agreement of 1966, which raised the liability limitation to $75,000 for flights originating, terminating or having a [ Page 4]

stopping point in the United States. See 31 Fed. Reg. 7302 (1966); Wallace, 214 F.3d at 297; Floyd, 872 F.2d at 1468. This resulted in "virtual strict liability" for air carriers. See Wallace, 214 F.3d at 297 (citing In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1485 (D.C. Cir. 1991)). Subsequently, air carriers entered into the International Air Transport Association (IATA) Intercarrier Agreement, which is comprised of three related but separate agreements. See Tony A. Weigand, The Modernization of the Warsaw Convention and the New Liability Scheme for Claims Arising out of International Flight, 84 Mass. L. Rev. 175, 183-84 (2000). Under the IATA agreement, which defendant has incorporated in its tariff, "[a] passenger claimant is entitled to provable damages up to 100,000 SDRs on the basis of strict liability. The claimant can recover provable damages in excess of 100,000 SDRs if the carrier fails to establish that it took `all reasonable measures' to avoid the damage, or that it was impossible to take such measures."*fn3 Id. at 184; see also Price v. KLM-Royal Dutch Airlines, 107 F. Supp.2d 1365, 1370 (N.D. Ga. 2000).

What constitutes an accident within the meaning of Article 17 has been the subject of much litigation.*fn4 In Air France v. Saks, 470 U.S. 392 (1985), the Supreme Court denied recovery to a passenger who had been injured by a [ Page 5]

routine change in cabin pressure experienced during an aircraft's landing, holding that when a passenger's "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." Saks, 470 U.S. at 406. In reaching its decision, the Supreme Court defined an accident within the meaning of Article 17 as "an unexpected or unusual event or happening that is external to the passenger." Id. at 405. The Court admonished that this "definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injury." Id.; see also El Al Israel Airlines Ltd. v. Tseng, 525 U.S. 155, 165, n. 9 (1999). As examples of accidents, the Court cited torts committed by terrorists and by fellow passengers. In support of the latter, the Supreme Court cited Oliver v. Scandinavian Airlines Systems, 17 Av.Cases (CCH) 18,283 (D. Md. 1983).

In Oliver, the court denied the airline's motion to dismiss the complaint, which alleged that plaintiff was injured when an ...

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