Two Air Crash Cases Illustrate Forum Non Conveniens Principles
Two recent decisions from federal courts grappling with air disaster cases provide an interesting illustration of basic forum non conveniens principles.
In Claisse v. The Boeing Co., No. 09 C 3722, Slip op. (N.D. Ill. Sept. 28, 2010), the court was faced with a lawsuit brought on behalf of decedents in the crash of a Kenya Airways flight in Cameroon on May 5, 2007 that killed all 114 passengers and crew. Plaintiffs sued a number of the manufacturers of the plane and its components in state court in Illinois, and defendants removed to federal court and moved for forum non conveniens dismissal.
The court undertook a classic forum non conveniens analysis, focusing first on whether there was an adequate alternative forum, and then analyzing the public and private interest factors set out in Supreme Court precedents to determine where the action should proceed. The court concluded that Cameroon was an adequate alternative forum for the suit. The plaintiffs argued that the Cameroon courts did not provide for the same pre-trial discovery that they could receive in the United States. But the court observed that the processes in the alternative forum need not be as comprehensive or favorable as those in the US. Because there were mechanisms for plaintiffs to obtain evidence, that factor did not disqualify Cameroon as a forum.
Plaintiffs also failed to rebut the defendants' law expert, who opined that Cameroon law provides a remedy for negligence, strict liability, breach of warranty and wrongful death. The fact that the amount of the damages recovered may not equal that which is possible in the US is irrelevant, so long as some form of basic remedy is available. Plaintiffs also complained that a cause of action was not available for spoliation of evidence, but they could not counter the defense expert's testimony that an adverse inference would be available at trial if plaintiffs could prove their spoliation allegations.
Plaintiffs also argued that Cameroon courts are corrupt and unjust, but the court held that they failed to provide sufficient reliable evidence to support this allegation.
After concluding that Cameroon was an adequate alternative forum, the court then analyzed the private interest factors, which focus on the convenience of the parties and the access to sources of proof. One large factor weighing against retaining jurisdiction in Illinois was that the court could not obtain personal jurisdiction over the airline, Kenya Airlines, which had maintained and operated the airplane and presumably would have evidence crucial to the defense. The court also refused to give a presumption of deference to plaintiffs' choice of forum, since it was not the plaintiffs' domicile. Indeed, not a single decedent had resided in the United States.
The court also looked at the availability of evidence, noting that plaintiffs had not established that any defendant had evidence or witnesses within the Northern District of Illinois. More important, all of the eyewitnesses and many others were present in Cameroon and were beyond the subpoena power of the court. The commission investigating the crash was located in Cameroon. And all evidence about plaintiffs' damages was located in Cameroon. The private interest factors thus weighed heavily in favor of Cameroon.
As for the public interest factors, Illinois had little, if any, local interest in the parties' dispute, while Cameroon had a very compelling local interest in addressing air safety concerns within its borders. Moreover, the near certainty that Cameroon law would have to be applied weighed in favor of transfer, as it would require the federal court to learn the substantive law of a foreign forum. Finally, placing the burden of jury duty on Illinois citizens and otherwise burdening Illinois federal courts when there was no connection to the forum was an unwarranted burden.
The court thus dismissed the case, subject to the defendants submitting to the jurisdiction of Cameroon, making their documents and witnesses available to plaintiffs, agreeing to toll the statute of limitations, and agreeing not to raise certain defenses (such as res judicata).
Justice Breyer's brother, District Judge Charles Breyer, was faced with an additional issue in deciding the air crash disaster cases arising out of the 2009 crash of the Air France flight en route from Brazil to France on June 1, 2009. In re Air Crash Disaster over the Mid-Atlantic on June 1, 2009, MDL No. 10-2144-CRB, Slip op. (N.D. Cal. Oct. 4, 2010). There, two of the decedents purportedly were U.S. residents, and the question was thus whether the Montreal Convention provided a U.S. jurisdiction for their claims and, if so, whether common law forum non conveniens doctrine could be used to dismiss the actions.
The Montreal Convention allows a passenger to sue in a variety of countries as a result of air accidents: (1) the carrier's domicile, (2) the carrier's principal place of business, (3) where the ticket was purchased, (4) the flight's destination, and (5) the passenger's "principal and permanent residence," which is defined as "the one fixed permanent abode of the passenger at the time of the accident."
Although 228 passengers and crew were killed in the crash, there were only 2 plaintiffs who purported to have their permanent and principal residence in the U.S. Those decedents, however, had been living and working in Brazil for more than a year. They paid taxes in Brazil and the U.S., had spent time abroad on temporary international assignments before, and kept their home in Texas, although they had shipped a container of household goods to Brazil.
Judge Breyer concluded that the treaty's provision means "domicile," essentially, and that the decedents' subjective view of their assignment in Brazil as temporary and their intention to return made them domiciliaries of Texas. Thus, the court had jurisdiction over their claim.
The question then became whether the court could give up jurisdiction. It was clear that most of the evidence was in France, where a commission was investigating the crash, and that the court lacked compulsory process over the documents, physical evidence or witnesses. And only 2 of the 228 decedents were U.S. domiciliaries. Forum non conveniens would dictate dismissal -- but only if it could still be applied in light of the Montreal Convention's provision creating jurisdiction in the U.S.
The court's analysis was further complicated by a Ninth Circuit precedent holding that the predecessor treaty -- the Warsaw Convention -- did not allow for the application of forum non conveniens even though it had indicated that the procedural rules of the forum country would apply to air accident claims. See Hosaka v. United Airlines, Inc., 305 F.3 989, 993 (9th Cir. 2002).
Judge Breyer held that, notwithstanding Hosaka, the Montreal Convention did not prevent a U.S. court from dismissing a case using forum non conveniens. He reasoned:
First, Hosaka was interpreting the Warsaw Convention, and Hosaka explicitly noted that it was not addressing the applicability of forum non conveniens under the (at the time not yet ratified) MC. At the time of the Warsaw Convention's drafting in 1929, the doctrine of forum non conveniens was relatively new. Thus, the Warsaw Convention's silence on the availability of forum non conveniens dismissal meant that it was not available absent a clear statement to the contrary. The MC, on the contrary, was ratified recently, and by that time the doctrine of forum non conveniens was well established and had even been used in the United States to dismiss Warsaw Convention actions. Against this changed backdrop, reaffirming (as the MC did) that a state's procedural law applies suggests that forum non conveniens dismissals are available. Moreover, this was the position taken by the United States during MC negotiations and after.
Slip op. at 9 (citations omitted).
Having interpreted the Montreal Convention as allowing for forum non conveniens dismissal, the court took little time in concluding that the lawsuit involving the tragic flight from Brazil to France belonged in a court in France, not the United States.
