Forum Non Conveniens in Jeopardy

Posted on September 10, 2012 03:04 by Carlos J. Ruiz

I. Introduction

On December 7, 2011, the French high court, the Cour de Cassation, ruled that a United States District Court could not use the doctrine of forum non conveniens under Article 33 of the 1999 Montreal Convention (Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999) to dismiss and "transfer" to Martinique - a French possession in the Caribbean - suits brought in the United States by the 152 victims of the crash of a Colombian air carrier over Venezuelan territory. The French court ruled that the plaintiff, and only the plaintiff, has the choice of deciding which jurisdiction will decide the dispute without the possibility that an internal rule of procedure of another state (in this instance the United States) might contradict his choice.

The case was originally filed in the United States District Court for the Southern District of Florida and was dismissed on the grounds that forum non conveniens is an available procedural tool under Article 33, and that the doctrine favored litigation in Martinique, where all of the 152 crash victims resided or were citizens. That decision was affirmed by the Eleventh Circuit Court of Appeals and certiorari was denied by the U.S. Supreme Court. Following the French high court ruling this past December, the plaintiffs filed a motion, pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, requesting that the U.S. District Court vacate its order dismissing the case. The plaintiffs' motion was timely opposed by the defendants on March 30, 2012. These motions are currently pending before Judge Ursala Ungaro, the same U.S. District Court Judge who heard and dismissed the prior cases. As this issue of Skywritings was ready for publication, Judge Ursula Ungaro issued an order denying the plaintiff's motion to vacate the previous order dismissing the case. Judge Ungaro rejected the Cour de Cassation's interpretation of the forum non conveniens doctrine under Montreal Article 33.

II. Prior History Of The Case

On August 16, 2005, West Caribbean Airways, a Colombian flag carrier that did not fly to or otherwise do business in the United States, crashed over Venezuela during a charter flight returning to Martinique from Panama City, Panama. All on board the aircraft were killed. Within weeks, suit was brought on behalf of all the passenger victims in Miami in the United States District Court for the Southern District of Florida. West Caribbean Airways and Jacques Cimetier, d/b/a Newvac Corporation, a Florida corporation, were named as defendants. Newvac was named and sued as a "contracting carrier" under new Article 39 of the 1999 Montreal Convention, as Newvac (and its owner, Jacques Cimetier) had entered a charter contract with West Caribbean Airways to provide the aircraft and crew to carry the Martinique passengers on the charter trip.

West Caribbean, for its part, moved to dismiss, arguing that the court had no jurisdiction over it, since it did no business in, and was not licensed to operate to or from, the United States. The court deferred ruling on that motion, mainly because Cimetier and Newvac moved to dismiss the case on the grounds of forum non conveniens. The two defendants argued that the plaintiffs should be required to file suit in Martinique, since it was an available and adequate forum, and West Caribbean Airways was subject to, and, indeed, would consent to jurisdiction there.

III. The Issues and the Relevant Treaty Provisions

The two main issues facing the court were: (1) whether forum non conveniens was an available procedural tool under Article 33(4) of the 1999 Montreal Convention and, if so, (2) whether it was appropriate to dismiss the suit on this basis. Because the issue of whether forum non conveniens could be used as a procedural tool under Article 33(4) was one of first impression in any U.S. court, defense counsel asked the court to invite the U.S. Government to participate in the case and present its views on that critically important issue. The court did so, and the U.S. Department of Justice submitted to the court a Statement of Interest that outlined in detail the legislative history (travaux preparatoire) of the negotiations at Montreal and concluded that forum non conveniens was clearly intended to be available to courts to use as an available procedural tool under Article 33(4). The Department of Justice later submitted an equally detailed Amicus Curiae brief to the U.S. Court of Appeals for the Eleventh Circuit, reviewing again the legislative history of Article 33(4) and reiterating the same conclusion.

In relevant part for the issues at hand, Article 33 of the Montreal Convention provides as follows:

(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.

(2) In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft or on another carrier's aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.

(4) Questions of procedure shall be governed by the law of the court seized of the case.

IV. Analysis

According to the foregoing text, the United States is an available forum for the plaintiffs under Article 33(1) because Newvac was domiciled and had its principal place of business in the state of Florida. However, Martinique, France is and was also an available forum both under Article 33(1) - because Martinique was the place of destination, as well as under Article 33(2) - because Martinique was likewise the State where all the passengers had their "principal and permanent residence" at the time of the accident. In other words, both the United States and France were very clearly available forums under Articles 33(1) and 33(2) of Montreal. Once the plaintiffs opted to sue in the United States, however, the defendants, Newvac and Cimetier, moved for dismissal on the grounds of forum non conveniens under Article 33(4). They did so for at least two significant reasons: first, neither Newvac nor Cimetier carried insurance to cover such a tragedy while West Caribbean Airways did and had voluntarily consented to subject itself to jurisdiction in Martinique; and second, because it is always far easier and more just for a domiciliary forum to determine proper and appropriate damage compensation for its domiciliaries than for a foreign court (such as a U.S. court would be in these circumstances).

Under the well-established Supreme Court precedent in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), a party seeking dismissal on forum non conveniens grounds must demonstrate: (1) that an adequate alternative forum is available; (2) that relevant public and private interests weigh in favor of dismissal, and; (3) that the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice. The defendants in this instance further argued that, because forum non conveniens is a question of procedure, it was in fact an available procedural tool under Article 33(4) and was specifically intended by the framers of the 1999 Montreal Convention to be available as such a tool in U.S. and other courts that employed the forum non doctrine. On the other hand, the plaintiffs argued that the court could not defeat the plaintiffs' choice of forum, as afforded by Montreal Article 33(1), through the application of a procedural rule of domestic law and, accordingly, forum non conveniens should not be deemed to be an available tool under Montreal Article 33(4).

V. Court Decisions

In an extensive Preliminary Order that analyzed in detail the legislative history of the 1999 Montreal Convention, the U.S. District Court (Judge Ursala Ungaro) concluded, as had the DOJ in its Statement of Interest, that forum non conveniens is – and was intended by the drafters of the 1999 Montreal Convention to be - an available procedural tool under Article 33(4). Two months later the court granted the defendants' motion to dismiss on the grounds of forum non conveniens, on the basis that the balance of interests favored litigation in Martinique, and the Martinique courts were adequate and available as the forum for the action. Following plaintiffs' appeal of this decision, the Eleventh Circuit Court of Appeals affirmed the decision, and the U.S. Supreme Court denied plaintiffs' petition for certiorari.

Meanwhile the plaintiffs had brought an action before the lower court in Martinique seeking a decision from that court that it would not defer to the U.S. District Court's forum non conveniens dismissal, and would, accordingly, not accept nor allow the settlement of the cases in the Martinique courts. It is important also to note at this point that the plaintiffs' action in the French lower court did not primarily seek compensation; rather, they sought primarily to defeat French jurisdiction and thus, in fact and in effect, to deprive themselves of French jurisdiction over their cases. The grounds in support of plaintiffs' argument were that, as the 152 plaintiffs had chosen to sue in a U.S. court, that choice, under and in accordance with Article 33(1), must be treated for all practical purposes as inviolate and could not be defeated by a defendant's motion to dismiss based on forum non conveniens. Moreover, the plaintiffs likewise argued that, as they had initially chosen to file suit in the United States pursuant to Article 33(1), the French court simply lacked jurisdiction.

In a lengthy and detailed decision, a three-judge lower court in Martinique rejected this argument, ruling, as did Judge Ungaro, that under Article 33(4), forum non conveniens was in fact an available tool for use by and in U. S. courts, and that the U.S. District Court's dismissal was a proper and legitimate exercise of its authority. This ruling was subsequently affirmed by a French Cour d'Appel. But following a later appeal by the plaintiffs, the French high court –the Cour de Cassation – failed to even cite much less discuss Judge Ungaro's decision or that of the U.S. Court of Appeals (or even the decisions of the three judge lower court in Martinique or the Cour d'Appel affirmance of that decision), held simply that U.S. courts could not properly employ the doctrine of forum non conveniens under Article 33(4) in this case. The court ruled that the U.S. court could not use a domestic rule of procedure to defeat plaintiffs' choice of a forum under Montreal Article 33(1) and, because the plaintiffs chose the United States as their forum, that choice was inviolate, and the French courts lacked jurisdiction over the matter. Accordingly, the Court ruled that France was not an available forum, and the case must be returned to the U.S. court where suit should once again proceed against the "contracting carrier" - Newvac Corporation. Significantly, there was no mention by the Cour de Cassation how the case could proceed when, as was well known, neither Newvac nor Cimetier carried any insurance covering aviation crashes.

VI. The Conflict

There is thus a clear conflict between the decisions of the French high court and the U.S. Eleventh Circuit Court of Appeals. To be sure, and for the sake of argument, one might suggest that the results of both courts are not necessarily wrong nor in conflict, as the U.S. courts were applying their law (including the forum non doctrine) while the Cour de Cassation was applying French law that does not use nor even acknowledge the forum non doctrine. But such an explanation would require two serious analytical stretches: first, that Judge Ungaro's decision and the decision of the three judge court in Martinique be ignored in their entirety (as the Cour de Cassation apparently did); and second, and more importantly, that one must likewise ignore the fact that whatever conflict might exist is one that stems not from the interpretation only of French or U.S. domestic law, but rather from the interpretation of an international treaty and that the failure of the Cour de Cassation to even mention - much less carefully examine - the travaux preparatoire of the 1999 Montreal Convention cannot but be viewed as an example of very high level judicial irresponsibility. For if the Cour de Cassation had examined that travaux preparatoire, it would surely and certainly have seen and understood that the delegates to the Montreal 1999 Convention, in adopting Article 33(4) as they did, knew and full well understood that United States courts would be using the forum non conveniens doctrine under and in accordance with that Article to do precisely what the U.S. District Court and the U.S. Court of Appeals did in the West Caribbean case.

VII. Next Steps 

Now, a decision of the highest importance for the future of the forum non conveniens doctrine awaits in the United States District Court for the Southern District of Florida. In the plaintiffs' motion to vacate the U.S. court order dismissing the case on forum non conveniens grounds, the plaintiffs argue that: (1) since the French high court ruled that Martinique/France is not an available forum, the threshold requirement for a forum non conveniens dismissal – i.e., the availability of an adequate alternative forum - is not met; and (2) that the U.S. court must now reopen the proceedings and go forward with the case, as otherwise the plaintiffs would be left without a remedy at all. In response, the defendants opposed the plaintiffs' motion to vacate arguing that, but for plaintiffs' own actions seeking to deprive themselves of jurisdiction, France was an available forum under Montreal Article 33 and, therefore, any harmed suffered now by the plaintiffs was self inflicted. The defendants also argued that the plaintiffs did not seek redress for their injuries in the French courts, rather, they devoted their principal resources to making France an unavailable forum thus leaving the French court with little choice. In other words, the dismissal on forum non conveniens grounds can and should still be sustained because France could still be considered, and become, an available forum, if and should plaintiffs reverse their course and agree to allow it.

Nor can the importance of this conflict be underestimated. If the decision of the French high court is not in some manner modified or overturned, or if the plaintiffs' course of action is somehow condoned by allowing them to reopen the proceedings in the U.S. District Court, it is very likely that future plaintiffs may well follow the same strategies and that other nations may follow the French position and, in so doing, work very seriously to diminish the importance of Article 33(4) and the use of forum non conveniens by U.S. courts in future 1999 Montreal Convention cases. However, it is doubtful whether U.S. courts or the U.S. Government, in the face of the clear legislative history of Article 33(4), would readily or even reluctantly accede to such a unilateral and unjustifiable interpretation of Article 33(4). Instead, they may just be willing to let plaintiffs, who brought this problem upon themselves, seek to work it out by themselves by for example returning to the French courts and requesting reconsideration and the award of compensation. Alternatively, it may well be that, should the French judicial system not be willing to allow reconsideration, then the plaintiffs' lawyers - who engineered and brought about this most unfortunate and perhaps insoluble conflict, thus depriving their own clients of compensation by any court - can be subject to a malpractice action by those same clients seeking much the same compensation as they would have received but for their lawyers' machinations.

Allan I. Mendelsohn is a former U.S. Deputy Assistant Secretary of State (2000 – 2001) who chaired the U.S. Delegation that led to the world's first multilateral open skies passenger and cargo agreement. He also worked on the 1963 Tokyo Convention on hijacking, on amendments to the liability provisions of the Warsaw Convention, on the 1966 Montreal Intercarrier Agreement, and on the 1968 Visby amendments to the Hague Rules. Allan is a professor of International Transportation Law at the Georgetown University Law Center and practices law as of-counsel with the firm of Cozen O'Connor in Washington, D.C. He was also counsel for Newvac and Jacques Cimetier when the litigation was first in the U. S. District Court and the U.S. Court of Appeals.

Carlos J. Ruiz is a professor of Aviation Law at the University of Puerto Rico School of Law and member of the Aviation Practice Group at Fiddler Gonzalez & Rodriguez, in San Juan, Puerto Rico, which he joined after serving as a Trial Attorney with the U.S. Department of Justice in Washington, D.C. Carlos is also an FAA licensed Aircraft Technician (A&P) and holds an Aviation Maintenance Science degree from Embry Riddle Aeronautical University, a J.D. from the University of Puerto Rico School of Law, and an LL.M. from Georgetown University Law Center with a Certificate in National Security Law.

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