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November 13, 2012 Articles

Testing Limits of the Adequate Alternative Forum in Aviation

By Deborah Elsasser

Forum non conveniens is a well-established doctrine that permits a court to decline to entertain a case on the basis that an alternative forum is a more convenient location for the dispute. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the Supreme Court set forth a number of “private interest factors” (among them, relative ease of access to sources of proof and availability of witnesses) and “public interest factors” (administrative difficulties caused by foreign litigation in the local court, imposition of jury duty on local citizens, local interest in the controversy, law governing the case) that must be weighed by the court in determining whether dismissal is proper.

The Supreme Court further refined the analysis in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), requiring the court to determine that an adequate alternative forum exists for the litigation of the plaintiff’s claims. An adequate alternative forum exists where the defendant is amenable to process in the jurisdiction and the forum provides an adequate remedy to the prevailing party. Id. at 254. Only if an alternative forum is available are the private and public interest factors set forth in Gilbert weighed by the court. Id. at 258.

In aviation cases involving international carriage by air as defined by the Montreal Convention of 1999 (Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, ICAO Doc. No. 9740 (entered into force Nov. 4, 2003), reprinted in S. Treaty Doc. 106-45, 1999 WL 33292734), the analysis involves an additional inquiry with respect to whether forum non conveniens dismissal is appropriate in a Montreal Convention case because of the exclusive fora set forth by the convention for actions governed by its terms. Pursuant to article 33 of the Montreal Convention, an action arising out of international carriage by air governed by the convention must be brought in one of five specified places: (1) the domicile of the carrier, (2) the carrier’s principal place of business, (3) the place of business where the contract of carriage was made, (4) the place of destination, and (5) the principal or permanent residence of the passenger.

Over the past few years, plaintiffs have challenged the notion that a court may appropriately dismiss a case on the basis of forum non conveniens where jurisdiction is conferred on the plaintiff’s choice of forum by the Montreal Convention. Only one United States appellate court to date has addressed the issue, siding with the defendant and allowing dismissal of a Montreal Convention case. See Pierre-Louis v. Newvac Corp., 584 F.3d 1052 (11th Cir. 2009), cert. denied sub. nom. Bapte v. W. Caribbean Airways, 130 S. Ct. 3387 (2010). This rationale has been followed by the Northern District of California in In re Air Crash over the Mid-Atlantic on June 1, 2009, 760 F. Supp. 2d 832 (N.D. Cal. 2010), and the Southern District of New York in Kahn v. Delta Airlines, Inc., 2010 WL 3210717 (E.D.N.Y. Aug. 12, 2010).

In response to the dismissal of their U.S.-based claims, the plaintiffs in the Crash over the Mid-Atlantic case unsuccessfully sought to recast their claims to eliminate foreign contacts and thus to remove the basis of the foreign court’s jurisdiction so as to seek reinstatement of the claims in the United States. See In re Air Crash over the Mid-Atlantic on June 1, 2009, 792 F. Supp. 2d 1090, 1094 (N.D. Cal. 2011) (plaintiffs cannot “assert the unavailability of an alternative forum when the unavailability is a product of its own purposeful conduct”). The plaintiffs in the Newvac case petitioned the foreign court to decline jurisdiction and then sought relief from the original dismissal under Federal Rule of Civil Procedure 60(b)(6) on the ground that the alternative forum was “unavailable.” To date, courts have rejected these post-dismissal efforts to reexamine the availability of the alternative forum, but the challenges are certain to continue.

Forum Non Conveniens and the Montreal Convention
The United States District Court for the Southern District of Florida was the first court to address the availability of forum non conveniens dismissal under the Montreal Convention. See In re W. Caribbean Airways, S.A., 619 F. Supp. 2d 1299 (S.D. Fla. 2007), aff’d, 584 F.3d 1052 (11th Cir. 2009). In In re West Caribbean Airways, the district court ruled as a matter of first impression that the doctrine of forum non conveniens is appropriate in a case governed by the Montreal Convention. The action arose out of the crash of West Caribbean Airways Flight 708 from Panama to Martinique, which crashed on August 16, 2005, killing all 152 passengers (all Martinique residents). The defendants filed a motion to dismiss the action based on forum non conveniens, and the plaintiffs opposed, relying in large part on the decision by the Ninth Circuit Court of Appeals in Hosaka v. United Airlines, Inc., 305 F.3d 989 (9th Cir. 2002).

Hosaka involved the application of the forum non conveniens doctrine to a case governed by the Warsaw Convention of 1929—the predecessor treaty to the Montreal Convention. Although the Montreal Convention replaced the old Warsaw Convention, courts interpreting the Montreal Convention often look to Warsaw Convention case law because the Montreal Convention “contains provisions which embrace similar language as the Warsaw Convention” and “so as not to result in a complete upheaval of the ‘common law’ surrounding the Warsaw Convention.” See Watts v. Am. Airlines, Inc., 2007 WL 3019344, at *2 (S.D. Ind. Oct. 10, 2007); In re Air Crash at Lexington, KY, August 27, 2006, 501 F. Supp. 2d 900 (E.D. Ky. 2007); Baah v. Virgin Atl. Airways, Ltd., 473 F. Supp. 2d 591, 595 (S.D.N.Y. 2007).

In analyzing the applicability of the doctrine in the context of a Montreal Convention case, the Southern District of Florida court considered the Ninth Circuit’s decision in Hosaka of limited precedential value because the Ninth Circuit “made clear in Hosaka that it was not opining on the availability of forum non conveniens dismissals under the then unratified Montreal Convention.” In re W. Caribbean Airways, 619 F. Supp. 2d at 1309. The Southern District of Florida court found that although article 33 of the Montreal Convention is silent with respect to the doctrine of forum non conveniens, article 33(4) of the Montreal Convention provides that “[q]uestions of procedure shall be governed by the law of the court seised of the case.” This treaty language is significant because the doctrine of forum non conveniens was firmly entrenched in the procedural law of the United States at the time the Montreal Convention was drafted. Id. at 1310. According to the court, this construction comports with the rules commonly used to construe treaty provisions and, specifically, the international law principle endorsed by the United States Supreme Court that “absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State.” Id. (citations omitted).

The Southern District of Florida court also noted that this interpretation is consistent with “the historical context in which the Convention was drafted, the purpose, the drafting history, the post-ratification understanding of the contracting parties. . . .” Id. at 1311. The court noted that the primary purpose of the Montreal Convention did not weigh against applying the doctrine of forum non conveniens because application of the doctrine (1) is supported by the Montreal Convention’s goal to modernize the Warsaw Convention and related instruments, and (2) would not undermine the Montreal Convention’s goal of uniformity or the balance it seeks to strike between the interests of the passengers and those of the airlines. Id. at 1314.

The court also found that the minutes of the convention showed no inclination on the part of the delegates to restrict existing procedural practices among the signatory states: “Importantly, the Minutes of the Conference and related documents contain not a single proposal that would prohibit the courts of Convention States from employing forum non conveniens.” Id. at 1317. Based on the foregoing, the court concluded that the doctrine of forum non conveniens is available under the Montreal Convention.

In a subsequent decision, the court dismissed the actions, finding that Martinique was an adequate alternative forum for the resolution of the claims (a fact that was not contested by the plaintiffs in opposition to the motion to dismiss) and that the private and public interest factors tipped in favor of dismissal because Martinique had a “far closer connection to the case” and thus would be a more convenient forum for the litigation of the passenger claims. See In re W. Caribbean Airways, S.A., 32 Av. Cas. (CCH) 15,764 (S.D. Fla. 2007). The plaintiffs appealed the district court’s decisions to the United States Court of Appeals for the Eleventh Circuit, which affirmed. See Pierre-Louis v. Newvac Corp., 584 F.3d 1052 (11th Cir. 2009). The Eleventh Circuit rejected the plaintiffs’ argument that because the Montreal Convention does not specifically affirm the availability of forum non conveniens, it should not be permitted in cases arising under it:

We find this argument untenable for two reasons. First, there is no dispute that forum non conveniens is a “question[] of procedure” under U.S. law and thus it clearly falls within the ambit of Article 33(4). Second, under Plaintiffs’ theory, all state procedural rules would have to be specifically enumerated in order to be applicable under the Convention, and we do not believe the Convention’s drafters intended such an absurd result.

Id. at 1058.

The court also rejected the plaintiffs’ further argument that to permit the application of forum non conveniens would undermine the purpose and implementation of the convention’s jurisdictional provisions, which have already enumerated the five “convenient” jurisdictions for purposes of adjudicating international carrier liability. Although the court acknowledged the plaintiffs’ concerns, it found as follows:

[T]he purpose of the Convention is adequately safeguarded under traditional forum non conveniens analysis. As the district court pointed out, forum non conveniens would permit dismissal under the Convention only if the alternative forum was authorized to hear the case under Article 33(1) or (2) and was “demonstrably the more appropriate venue.”

We therefore find no ambiguity or limitation in the express language of Article 33(4), which states in no uncertain terms that questions of procedure—which can only reasonably be read to include all questions of procedure—are governed by the rules of the forum state. As the district court correctly noted, the doctrine of forum non convenience is “firmly entrenched in the procedural law of the United States.” In addition, we are satisfied that a district court may—where appropriate—exercise its discretion to apply forum non conveniens, without interfering with the implementation of the Convention, so long as another Convention jurisdiction is available and can more conveniently adjudicate the claim.

Id. (footnotes omitted).

The Eleventh Circuit Court of Appeals denied rehearing (400 F. App’x 555 (11th Cir. 2009)), and the Supreme Court subsequently denied certiorari. Bapte v. W. Caribbean Airways, 130 S. Ct. 3387 (2010).

Post-Dismissal Attempts to Render the Alternative Forum 'Unavailable'
Following the Southern District of Florida court’s 2007 dismissal order, the plaintiffs refiled their actions in Martinique but petitioned the Martinique court to decline jurisdiction. The plaintiffs argued that the Martinique court lacked jurisdiction because, under French law (Martinique is an overseas department of the Republic of France), jurisdiction in Montreal Convention cases is determined solely by the plaintiff’s choice of forum and because the plaintiffs chose to file their actions in the Southern District of Florida, the Martinique court was without authority to override the plaintiffs’ choice and exercise jurisdiction over the case. The Martinique Court of First Instance rejected the argument as did the appellate court. The plaintiffs then petitioned France’s highest court, the Cour de Cassation, which, on December 7, 2011, quashed the ruling of the French appellate court and held that a Montreal Convention action must be maintained in a forum chosen by the plaintiffs and, because the plaintiffs did not choose the Martinique court, the forum was “currently” unavailable for the litigation of their claims.

Armed with this decision, the plaintiffs returned to the Southern District of Florida and filed a motion seeking relief from the 2007 forum non conveniens dismissal order under Federal Rule of Civil Procedure 60(b)(6). Rule 60(b)(6) is equitable in nature and allows a court to relieve a party from a final order based on extraordinary circumstances justifying relief. See Freerick v. Kirby Tankships, Inc., 205 F.3d 1277, 1288 (11th Cir. 2000). The plaintiffs posed two reasons for requesting relief from the dismissal order: (1) Martinique no longer is an available forum in light of the decision of the Cour de Cassation that the forum was not “currently” available, and (2) the plaintiffs will suffer undue hardship if they cannot litigate their claims in the United States.

The district court flatly rejected the attempt to reopen the 2007 dismissal order, finding that the plaintiffs had not acted in good faith in seeking dismissal of their claims in Martinique, where jurisdiction was otherwise proper. The court characterized the plaintiffs’ strategy as a “four-year campaign to subvert the forum non conveniens dismissal” and an untimely “substitute for appeal” that “threatens to disturb the finality of the court’s FNC order.” In re W. Caribbean Airways, 2012 U.S. Dist. LEXIS 74149 (S.D. Fla. May 16, 2012). The court analogized to cases involving blocking statutes invoked by foreign courts, where the U.S. courts have held that “once an American court has ruled that a foreign forum is available, a foreign ruling declining jurisdiction will not necessarily warrant reinstatement of the action, particularly where plaintiffs themselves have advocated against jurisdiction in the foreign forum.” Id. (citingScotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013 (Fla. 3d Dist. Ct. App. 2009) and Del Istmo Assurance Corp. v. Platon, 2011 WL 5508641 (S.D. Fla. Nov. 9, 2011)).

The district court found that if “Martinique is unavailable, it is only because plaintiffs have made it so” and noted that there have been several cases in which courts have refused to reconsider a forum non conveniens dismissal where the plaintiffs engaged in conduct that was designed to result in the rejection of the case by the foreign court. See, e.g., Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025, 1031 (9th Cir. 2011) (“If the district court determines that the primary reason the Mexican courts declined to take jurisdiction of plaintiffs’ case was plaintiffs’ actions or inactions in the case, it retains discretion to again order dismissal, with appropriate conditions, if any.”); MBI Grp., Inc. v. Crédit Foncier du Cameroun, 616 F.3d 568 (D.C. Cir. 2010); In re Compania Naviera Joanna S.A. v. Koninklijke Boskalis Westminster NV, 569 F.3d 189, 203 (4th Cir. 2009) (“‘A party should not be allowed to assert the unavailability of an alternative forum when the unavailability is a product of its own purposeful conduct.’”); In re Air Crash over the Mid-Atlantic on June 1, 2009, 792 F. Supp. 2d 1090, 1094 (N.D. Cal. 2011) (holding that plaintiffs should not be permitted to “assert the unavailability of an alternative forum when the unavailability is a product of its own purposeful conduct”); Snaza v. Howard Johnson Franchise Sys., Inc., 2008 WL 5383155, *6 n.4 (N.D. Tex. Dec. 24, 2008) (“Any attempt by a plaintiff to file in the wrong court or file surreptitiously expressly to defeat jurisdiction, of course, would be viewed as bad faith.”); In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 470 F. Supp. 2d 917, 920 (S.D. Ind. 2006) (refusing to reinstate case where plaintiffs filed their action in Mexico with the clear purpose of having the case dismissed); Cruz v. Mar. Co. of Philippines, 655 F. Supp. 1214, 1216 (S.D.N.Y. 1987) (denying plaintiff’s motion to reinstate, noting that it appeared “that plaintiff’s procurement of the dismissal of his action in the Philippine Regional Trial Court was merely a ruse to force the U.S. Court to accept jurisdiction”).

In short, the district court rejected the notion that “a foreign court’s determination that it lacks jurisdiction because of Plaintiffs’ decision to contest jurisdiction in the alternative forum … renders the alternative forum, where jurisdiction is otherwise proper, unavailable.”

The applicability of the forum non conveniens doctrine to aviation accident lawsuits commenced in the United States will continue to be one of the most hotly contested issues in aviation accident litigation. It remains to be seen how the appellate courts will respond to the attempts by foreign plaintiffs to test the limits of the adequate alternative forum analysis in such cases, but it seems reasonably clear that plaintiffs would be ill advised to resist jurisdiction in a foreign forum following dismissal in the United States, as they risk finding themselves without any forum at all.

Keywords: litigation, mass tort, Federal Rule of Civil Procedure 60(b)(6), Montreal Convention, procedural practices, forum non conveniens

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