2. The concept of ‘accident’ in Warsaw Convention and Montreal Convention jurisprudence The US Supreme Court decision in Air France v Saks is widely regarded as 6 the leading decision on the defnition of an ‘accident’ for the purposes of the Warsaw Convention. According to that judgement, an ‘accident’ means an unusual or unexpected event that is external to the passenger and (at least as part of a chain of causes) causes the injury or death. In contrast, an injury resulting from the 7 passenger's own internal reaction to the usual, normal and expected operation of the aircraft is therefore not based on an ‘accident’. To qualify as an ‘accident’, an event must therefore • be unexpected or unusual • be external to the passenger; and • have led to the passenger's injury or death, at least as part of a chain of causes. This defnition has been widely followed by courts in other countries, such as the German Federal Court (BGH) and the Austrian Supreme Court (OGH), who have held that ‘accident” means • ‘any sudden event resulting from an external cause which kills or injures the traveller’; respectively 8 • ‘a sudden event based on an external cause, determined in time and place, as a result of which the passenger is killed or injured’; 9 The French Court of Cassation also requires ‘some event outside the passenger's person’ for an accident to occur. 10 All these interpretations have in common the requirement of an external event, which must be proven by the injured party as a prerequisite for a 11 claim. Likewise, the relevant doctrine requires that the cause of the injury or 12 US Supreme Court 04.03.1985, Air France v Saks, 470 U.S. 392 [1985]. 6 ‘An injured passenger is only required to prove that some link in the chain of causes 7 was an unusual or unexpected event external to the passenger’. German Federal Court (BGH), judgement of 21.11.2017, X ZR 30/15. 8 Austrian Supreme Court (OGH), judgement of 30.01.2020, 2 Ob 6/20a. 9 French Cour de Cassation, judgement of 29.11.1989, Sanchez c Air France (RFDA 10 1989 539, 540): „un quelconque événement extérieur à sa personne“. OGH, reference for preliminary ruling of 30.01.2020, 2 Ob 138/19m 11 Reuschle MÜ2 Art 17 Rn 28. 12
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