The Eleventh Circuit Says Montreal Convention's Venue Provision Does Not Trump Forum Non Conveniens
One of the first issues I litigated in my career as a mass torts lawyer involved a woman injured while disembarking an aircraft in China. The primary issue was whether the doctrine of forum non conveniens could be invoked by an air carrier where the treaty that governs personal injury suits by air passengers, the Montreal Convention -- or, formally, the Convention for the Unification of Certain Rules for International Carriage by Air -- allows for venue in the United States. We won. See Lu v. Air China Int'l Corp., 1992 WL 453646 (E.D.N.Y. Dec. 16, 1992). And I received a free trip to China from a grateful client to attend a party in the Great Hall of the People celebrating their corporate restructuring.
It's over 15 years later, and the Eleventh Circuit has just reached the same conclusion: the Montreal Convention's venue provisions do not preclude the application of forum non conveniens rules. See Guyard v. Newvac Corp., No. 07-15828, Slip op. (11th Cir. Oct. 8, 2009). I doubt I'll get a free trip to Martinique for writing a blog post about this decision, but you can't blame a guy for trying.
A West Caribbean Airways flight carrying Martinique citizens crashed in the mountains of Venezuela. Newvac, an American company, had chartered the West Caribbean plane for round-trip flights from Martinique to Panama and had contracted with a travel agency to market them to Martinique residents.
The Montreal Convention has a jurisdictional provision that allows for claims resulting from the death or injury of a passenger to be brought in a variety of countries, including, importantly, the "carrier's" domicile and principal place of business. Although the Convention's jurisdictional provision does not define the term "carrier," elsewhere the Convention distinguishes between an "actual carrier" and a "contracting carrier," making the contracting carrier subject to the Convention's rules for the "whole of the carriage contemplated in the contract," while the actual carrier is subject to such rules "solely for the carriage which it performs." Slip op. at 8. The district court had concluded (and the Eleventh Circuit implicitly affirmed) that under the Montreal Convention, the case could properly be brought in the United States because Newvac was the contracting carrier and this was its domicile and principal place of business.
Newvac, however, moved for forum non conveniens dismissal, arguing that the evidence and witnesses pertaining to damages were in Martinique, and thus suit should be brought there. Plaintiffs argued that because the Montreal Convention conferred jurisdiction on the United States, the court was bound by the treaty to exercise it and was without the power to use forum non conveniens to decline jurisdiction.
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." The Eleventh Circuit held 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)." Slip op. at 10. Plaintiffs argued that applying forum non conveniens to divest the U.S. of jurisdiction would undermine the purpose of the Convention's jurisdictional provisions. The Eleventh Circuit disagreed, finding that "the purpose of the Convention is adequately safeguarded under traditional forum non conveniens analysis." Id. at 11. Because there was no ambiguity or limitation in the express language of Article 33(4), the Eleventh Circuit held that all questions of procedure are governed by the rules of the forum state and a district court may, where appropriate, exercise its discretion to apply forum non conveniens "so long as another Convention jurisdiction is available and can more conveniently adjudicate the claim." Slip op. at 11-12.
The Eleventh Circuit then moved on to analyze whether the district court abused its discretion in invoking forum non conveniens in this case, analyzing both the private and public interest factors. No one contested that Martinique was an adequate alternative forum. Plaintiffs argued, however, that their choice of forum was entitled to deference and the presumption of convenience. The court noted that such deference is lessened where the plaintiffs are not U.S. residents. Plaintiffs argued, however, that their choice of forum deserved greater deference than the typical non-resident's because the Convention conferred upon the U.S. jurisdiction over their claims. The Eleventh Circuit ducked the question of precisely what deference such plaintiffs' choice is due, concluding that "the analysis cannot end with a presumption of convenience, but must address the actual convenience of the various available fora."
The court noted that the greater deference given a U.S. resident's choice of forum stems from the assumption that she chose her home forum because it was convenient. That was not the case here, however. The defendants had conceded liability, so the sole issue at trial was to be damages. It was undisputed that "all of the witness and documentary evidence regarding damages, as well as all or virtually all of the non-party factual witnesses, are located in Martinique, beyond the compulsory process of the district court." Slip op. at 15. Plaintiffs argued that they were willing to bear the extra expense to meet their burden of proof by bringing their evidence to Florida. But the court noted that this failed to account for the ability of the defendants to prepare their defensive case.
In analyzing the public interest factors, the court noted that although the U.S. has an interest in deterring the tortious conduct of its citizens, Martinique has a stronger interest in adjudicating actions to redress injuries to its citizens. Particularly because the damages evidence was in French and was located in Martinique, the public interest factors weighed heavily in favor of Martinique as the forum:
[T]he United States' interest in adjudicating Plaintiffs' claims does not justify the enormous commitment of time -- both of the court and of jurors -- and other judicial resources that would be consumed by the presentation of live testimony and documentary evidence in a foreign language. Finally, the district court found that although litigating third-party claims . . . would be more convenient in a U.S. forum than in Martinique, the burden of translation in Martinique with respect to these claims is not as great as the burden of presenting French damages evidence in the United States. This is so because the Martinique court designated to hear Montreal Convention claims does so in writing only and will not hear testimony. Thus, Defendants will not bear the burden of translating live testimony in Martinique as both parties would in the United States.
Slip op. at 18.
Ultimately, the Eleventh Circuit concluded that the district court did not abuse its discretion in applying the public and private interest factors to dismiss the case in favor of a Martinique forum under the common law doctrine of forum non conveniens.
