Nguyen vs. Korean Air

By Chang Se-moon

Tinh Thi Nguyen, a 76-year-old Vietnamese woman, flew by herself from Ho Chi Minh City to Seoul and then on to Dallas on an aircraft operated by Korean Air. Nguyen could speak and understand only Vietnamese; she could not communicate in Korean or English, which were the languages used in the aircraft’s public announcements. Before departing Ho Chi Minh City, Nguyen arranged for Korean Air to provide a wheelchair when she arrived in Dallas. Korean Air classified Nguyen as a wheelchair passenger on her flight itinerary.

During her flight from Seoul to Dallas, Nguyen “attempted to speak with a flight attendant” about the wheelchair she had reserved. The flight attendant could not speak Vietnamese and was unable to communicate the passenger. There was no further communication between Nguyen and Korean Air personnel regarding a wheelchair.

The policy of Korean Air is that approximately 40 minutes before landing on flights from Korea to the United States, the flight crew makes an announcement about the company’s policies relating to wheelchair requests, informing wheelchair passengers to wait until all other passengers deplane. Korean Air made this announcement in Korean and in English, but not in Vietnamese. Apparently, no one related the message to Nguyen.

Nguyen deplaned with the other passengers in her row without waiting. After deplaning, “Nguyen walked past a row of waiting wheelchairs and wheelchair attendants. She did not ask for a wheelchair; she did not point at a wheelchair; she did not sit in a wheelchair; she did not indicate a need for a Vietnamese speaker.”

Korean Air employees, on the other hand, did not pay attention to Nguyen, nor provided her a wheelchair. Nguyen followed other passengers on foot towards the baggage claim. She fell on an escalator and suffered multiple injuries.

On June 21, 2013, Nguyen filed a lawsuit against Korean Air and the Dallas-Fort Worth International Airport Board at Texas Northern District Court. On June 10, 2014, the District Court granted the Airport Board’s motion to dismiss the lawsuit for lack of jurisdiction. The Airport Board, therefore, was no longer a defendant, leaving Korean Air as the only defendant in Nguyen’s lawsuit.

Nguyen argued that Korean Air’s failure to provide wheelchair service constituted a violation of Article 17 of the Warsaw Convention signed in 1929, of which the first paragraph states that “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

The gist of Nguyen v. Korean Air is that Korea Air promised Nguyen a wheelchair and promised one would be waiting for her upon her arrival in Dallas, but she did not use the wheelchair due to a communications breakdown.

The Texas Northern District Court ruled, “Nguyen has not produced any evidence suggesting that Korean Air’s employees... deviated in any way from their internal policies and procedures or from industry standards in failing to ensure that she disembarked in a wheelchair.” After the District Court ruled on April 20, 2015, that Korea Air did not violate Article 17, Nguyen on May 1, 2015 appealed the District Court’s ruling to the U.S. Court of Appeals for the Fifth Circuit Court in New Orleans, Louisiana.

On December 2, 2015, the Appeals Court concluded, “The district court was correct in holding that Nguyen’s injuries were not the result of an accident under the Warsaw Convention because her failure to be placed in a wheelchair was not an unexpected or unusual event. As Nguyen did not suffer an accident under Article 17, we need not determine whether the failure to place Nguyen in a wheelchair was a link in the chain of causes leading to her injuries.” In other words, Korean Air was ruled not liable for Nguyen’s injuries.

This case reminded me of a Japan Airlines flight I was on from Los Angeles to Tokyo many years ago. As usual, I never had enough money or power to fly first class. I fell asleep near the back of the cabin, lying down across empty seats. I felt someone placing a blanket over me. When I opened my eyes, I saw a steward, not stewardess, smiling over me. I am sure that placing a blanket over a coach class passenger is not in the rulebook of Japan Air. I have no doubt that those beautiful stewardesses and their supervisors in Korean Air are more than capable of assisting passengers beyond whatever Korean Air rulebooks may suggest, if they truly care about their passengers.

Chang Se-moon is the director of the Gulf Coast Center for Impact Studies.