Delta Air Lines, Inc. v. Chimet, S.P.A.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-1202

_____________

DELTA AIR LINES, INC.,

Appellant

v.

CHIMET, S.P.A.;

JOHNSON MATTHEY, INC.

On Appeal from the United Stated District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 07-cv-02898)

District Judge: Honorable Harvey Bartle, III

Argued February 22, 2010

Before: SCIRICA and CHAGARES, Circuit Judges, and

RODRIGUEZ, District Judge.*

(Filed: August 30, 2010)

James C. Stroud, Esq. (argued)

Rawle & Henderson, LLP

One South Penn Square

Philadelphia, PA 19107

Counsel for Appellant

*

The Honorable Joseph H. Rodriguez, Senior District Judge

for the District of New Jersey, sitting by designation.

Adam D. Mitzner, Esq. (argued)

Jonathan A. Selva, Esq.

Pavia & Harcourt LLP

600 Madison Avenue

New York, NY 10022-1653

David M. Laigaie, Esq.

Mariana Rossman, Esq.

Dilworth Paxson LLP

3500 Market Street

Suite 3500 E

Philadelphia, PA 15219

Counsel for Appellee

__________________

OPINION

__________________

CHAGARES, Circuit Judge.

Plaintiff Delta Airlines, Inc. (“Delta”) appeals from the

District Court’s dismissal of this declaratory judgment action on

forum non conveniens grounds. Defendant Chimet, S.p.A.

(“Chimet”) shipped approximately 100 kilograms of pure platinum

with Delta from Milan, Italy to Philadelphia, Pennsylvania. The

shipment of platinum arrived in Philadelphia but was reported

stolen before reaching its ultimate destination. Delta filed a

complaint in the District Court, seeking a declaration that its

liability for this loss was limited pursuant to Article 22(3) of the

Convention for the Unification of Certain Rules for International

Carriage by Air, done at Montreal on May 28, 1999 (the “Montreal

Convention” or the “Convention”). The District Court granted

Chimet’s motion to dismiss the action on forum non conveniens

grounds, concluding that critical documents, witnesses, and third

parties relevant to the dispute would only be available in Italy and

that the location of the alleged culpable conduct was in Italy. For

the reasons that follow, we will affirm.

2

I.

Chimet is an Italian company without any “offices, property,

or representatives in the United States of America.” Appendix

(“App.”) 131. On April 21, 2007, Chimet hired Delta to carry

cargo consisting of over 100 kilograms of pure platinum from Italy

to Philadelphia, Pennsylvania for delivery to Johnson Matthey, Inc.

(“Johnson Matthey”). Chimet worked with several Italian

intermediaries to perform the shipment. Chimet appointed

Arexpress to arrange for the transportation of the platinum to

Johnson Matthey. App. 115. Arexpress retained Securpol

Vigilantes to pick up the platinum from Chimet’s factory. App.

116. Securpol Vigilantes delivered the platinum to Vicenza Sped,

which transported the platinum from Vicenza, Italy to Malpensa

Airport in Milan. Id. At the airport, Vicenza consigned the

platinum to Delta’s agent, Malpensa Logistica Europea S.p.A. Id.

Delta then transported the platinum to Philadelphia, via Atlanta,

Georgia. Before the platinum was delivered to Johnson Matthey,

however, it was reported stolen.

The Montreal Convention, which governs the international

carriage of passengers, baggage, and cargo, limits Delta’s liability

for the loss of cargo to a specified amount per kilogram – an

amount much lower than the actual value of the platinum in this

case – unless Chimet declared a higher value when it consigned the

goods. The parties dispute whether Chimet declared a higher

value.

Much of the dispute focuses on the meaning of two

documents that were generated in connection with the shipment:

an air waybill, printed on a standard International Air

Transporation Association (IATA) form, App. 96-97, and a

document known as a distinta consegna merce, which we will refer

to as a delivery receipt, App. 94. The waybill form includes fields

that appear to be designed to allow the consignor to designate

values for the cargo. In the field labeled as “Declared Value for

3

Carriage,” the waybill lists the letters “NVD.” App. 96.1 Delta

claims that this abbreviation signifies “No Value Declared.” App.

140. Chimet disagrees with this interpretation, asserting that Italian

witnesses will need to testify at trial regarding the meaning of this

entry. Chimet Br. at 21.

The waybill also includes several entries that appear to

detail the contents of the shipment. In a field labeled “Nature and

Quantity of Goods (incl. Dimensions or Volume),” the waybill

includes an indication that the goods are “PURE PLATINUM.”

App. 96. In the area under this description of the goods as pure

platinum, the following information is printed:

VAL VAL VAL VAL

THE FINAL TRANSPORTATION FROM THE

AIRPORT TO THE CONSIGNEE’S ADDRESS

MUST BE PERFORMED BY CUSTOMS

BROKERS OR SPECIALISED COURIERS TO

FORWARD VALUABLE CARGO

Id. Chimet suggests that this entry “indicates [its] intent to declare

the valuable nature of the cargo.” Chimet Br. at 21. Indeed, the

delivery receipt, discussed in greater detail below, indicates a value

for the shipment of €3,050,000.2 App. 94.

Delta claims that if Vicenza Sped had attempted to declare

a value for carriage of €3,050,000, it would not have accepted the

shipment because Delta’s tariff rules limit the value that can be

declared for a single shipment to $100,000. App. 141. Delta also

asserts that if Vicenza Sped had been able to declare this value, the

“valuation charge” would have been €22,885.52, or approximately

$30,000.00. App. 140-41. In addition, Delta contends that the

entry “VAL AP Fees 140.47 Euros” entered in the field labeled

1

The same letters are listed in the field labeled “Declared

Value for Customs.” App. 96. In addition, the entry “N.I.L.” is

listed in the field labeled “Amount of Insurance.” Id.

2

According to Chimet, the value of the shipment exceeded

$4 million. Chimet Br. at 1.

4

“Insurance Premium” could not represent a request for insurance

in the amount of €3,050,000. App. 142-43. Had there been such

a request, Delta maintains, “the premium would have been

$24,000.00, not $185.00,” the amount that appears on the waybill.

App. 143. Delta interprets the entry that appears in the “Insurance

Premium” field as a spillover from the “Other Charges” field

directly above. See id. (“The 140.47 Euro amount shown reflects

a portion of certain miscellaneous ‘other charges’ due carrier,

which total 218.52 Euros. These other charges were a 5.31 Euros

‘airport tax’; a fuel surcharge of 72.27 Euros and a valuable

handling charge made by the export warehouse in Milan of 140.47

Euros.”).

The reverse side of the waybill form includes a number of

legal notices. App. 97. At the top of the page, a capitalized notice

states that under the Warsaw Convention (which preceded the

Montreal Convention), the carrier’s liability is limited in the case

of loss unless a higher value is declared in advance and a

supplementary charge paid if required. Id. In addition, under the

heading “CONDITIONS OF CONTRACT,” the following

provisions are listed:

4. Except as otherwise provided in carrier’s

tariffs or conditions of carriage, in carriage to

which the Warsaw Convention does not

apply, carrier’s liability shall not exceed USD

20.00 or the equivalent per kilogram of goods

lost . . . .

5. If the sum entered on the face of the air

waybill as “Declared Value for Carriage”

represents an amount in excess of the

applicable limits of liability referred to in the

above Notice and in these Conditions and if

the shipper has paid any supplementary

charge that may be required by the carrier’s

tariffs, conditions of carriage or regulations,

this shall constitute a special declaration of

value and in this case carrier’s limitation of

liability shall be the sum so declared.

5

Id.

The parties also dispute the significance of the delivery

receipt, a one-page document printed primarily in Italian on a

Vicenza Sped form. App. 94. The delivery receipt appears to list

the number of the air waybill, 006 4899 1622, the weight of the

cargo, the destination, and the carrier. Id. It also includes an entry

containing the following figure: “EU 3.050.000,00.” Id. Chimet

interprets this entry as a declaration of value. See App. 116 (“Delta

received a delivery receipt from Vicenza Sped for the Platinum that

listed the value of the Platinum as €3,050,000.00.”). Delta

contends that the delivery receipt “only confirms that the shipment

was delivered to Delta’s agent.” App. 142. According to Delta,

the delivery receipt “is not a transportation document and does not

indicate a request for a declared value for carriage.” Id.

Chimet “denies that it did not make a declaration of value

and did not pay the relative surcharge since the delivery receipt,

which was received by Delta, lists the value of the Platinum as

€3,050,000.00 and the air waybill shows that additional

transportation costs were paid.” App. 118. Chimet claims that

testimony from individuals at Arexpress, Securpol, and Vicenza

Sped would confirm its interpretation of the waybill and delivery

receipt and provide additional information regarding the

instructions for shipping the platinum and the creation of the

documents. Id. Chimet represents that all of these individuals are

citizens and residents of Italy, without any contacts with the United

States, and that their testimony can therefore only be obtained in

Italy. App. 119.

Delta initiated this declaratory judgment action by filing a

complaint in the United States District Court for the Eastern

District of Pennsylvania on July 13, 2007. By order dated

December 19, 2008, the District Court granted Chimet’s motion to

dismiss on forum non conveniens grounds. App. 4. The District

Court began its analysis by determining that Italy presented an

adequate alternative forum. App. 10. The court concluded that

since Delta had filed the action in its home forum, the United

States, this choice of forum would be accorded “considerable

deference.” App. 11. With this deference in mind, the District

6

Court applied the factors set forth by the Supreme Court in Gulf

Oil Corp. v. Gilbert, 330 U.S. 501 (1947). The District Court

determined that since a number of important witnesses might only

be available if the trial were held in Italy, some of the relevant

documents were located in Italy and written in Italian, and several

third parties could only be joined in Italy, the “private interest

factors” weighed in favor of granting the motion. See App. 31-33.

Applying the “public interest factors,” the District Court concluded

that although the “administrative difficulties flowing from court

congestion is a neutral factor,” the “locus of the alleged culpable

conduct is Italy,” and “the local interest in having localized

controversies decided at home favors dismissal of this action.”

App. 34. The District Court therefore concluded, inter alia, that “a

trial in the United States would be oppressive and vexatious to

Chimet out of all proportion to the convenience of Delta” and that

the action should be dismissed. App. 34. Delta timely appealed.

II.

The District Court had jurisdiction over this action arising

under the Montreal Convention pursuant to 28 U.S.C. § 1331, and

we have jurisdiction over the final judgment dismissing the action

pursuant to 28 U.S.C. § 1291. We review a dismissal on forum non

conveniens grounds for abuse of discretion. Windt v. Qwest

Commc’ns Int’l, Inc., 529 F.3d 183, 189 (3d Cir. 2008). “[T]he

district court is accorded substantial flexibility in evaluating a

forum non conveniens motion, and ‘[e]ach case turns on its facts.’”

Van Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988) (quoting

Williams v. Green Bay & W. R.R. Co., 326 U.S. 549, 557 (1946)

(citation omitted)). A district court’s decision to dismiss for forum

non conveniens “may be reversed only when there has been a clear

abuse of discretion; where the court has considered all relevant

public and private interest factors, and where its balancing of these

factors is reasonable, its decision deserves substantial deference.”

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). A district

court abuses its discretion only “when it fails to consider

adequately and to determine the amount of deference due the

foreign plaintiff’s choice of forum or when it clearly errs in

weighing the factors to be considered.” Lony v. E.I. Du Pont de

Nemours & Co., 886 F.2d 628, 632 (3d Cir. 1989).

7

III.

The Supreme Court has directed that “a plaintiff’s choice of

forum should rarely be disturbed.” Piper Aircraft, 454 U.S. at 241.

However, a district court may dismiss an action based on forum

non conveniens if “an alternative forum has jurisdiction to hear the

case,” and trial in the plaintiff’s chosen forum “would ‘establish .

. . oppressiveness and vexation to a defendant . . . out of all

proportion to plaintiff’s convenience,’” or the “‘chosen forum [is]

inappropriate because of considerations affecting the court’s own

administrative and legal problems’ . . . .” Id. (quoting Koster v.

Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)).

Although “the decision to grant or deny a forum non

conveniens motion lies within the district court’s sound discretion,”

the court’s decision “‘should be an exercise in structured discretion

founded on a procedural framework guiding the district court’s

decision making process.’” Lacey v. Cessna Aircraft Co., 862 F.2d

38, 43 (3d Cir. 1988) (quoting In re Air Crash Disaster Near New

Orleans, La. on July 9, 1982, 821 F.2d 1147, 1165 (5th Cir. 1987)).

The court must first decide whether an adequate alternative forum

exists to hear the case. Lony, 886 F.2d at 633 (citing Lacey, 862

F.2d at 43). The court must then evaluate the amount of deference

due to the plaintiff’s choice of forum. Id. Finally, the court must

“consider and balance” the private and public interest factors set

forth in Gilbert. Id. The list of Gilbert factors to be balanced “is

by no means exhaustive, and some factors may not be relevant in

the context of a particular case.” Van Cauwenberghe, 486 U.S. at

528-29. The defendant bears the burden of persuasion at each

stage in the analysis, and a district court abuses its discretion if it

fails to hold the defendant to its burden. Lacey, 862 F.2d at 43.

Delta does not contest the adequacy of the alternative forum.

However, Delta argues that the District Court abused its discretion

by according insufficient deference to Delta’s choice of forum and

in its application of the Gilbert factors.

A.

Delta first argues that the District Court abused its discretion

8

through the level of deference it applied to Delta’s choice of forum.

“Ordinarily, a strong presumption of convenience exists in favor of

a domestic plaintiff’s chosen forum, and this presumption may be

overcome only when the balance of the public and private factors

clearly favors an alternate forum.” Windt, 529 F.3d at 190 (citing

Piper Aircraft, 454 U.S. at 255). Consistent with this established

precedent, the District Court concluded that Delta’s choice of

forum should be afforded “considerable deference.” App. 27.

Delta suggests that despite the District Court’s unambiguous

statement regarding the level of deference, “no deference was

apparent from the reasoning stated” in the District Court’s opinion.

Delta Br. at 12. Delta argues that the District Court erred by

“merely restat[ing] the rules pertaining to deference, a tactic which

does not satisfy the District Court’s obligation to address

deference.” Id. Indeed, in Lony, we held that the District Court

abused its discretion by failing to explain how much deference

should be given the plaintiff’s choice of forum, instead merely

“restating the rule and filling in the names of the parties.” 886 F.2d

at 634.

Unlike in Lony, the District Court in this case did evaluate

Chimet’s arguments that Delta’s choice of forum deserved no

deference, disagreed with this position, and then noted explicitly

that it granted “considerable deference” to Delta’s choice of forum.

App. 27. Given this statement, Delta’s only possible argument is

that the District Court did not actually apply the level of deference

that it stated it was applying. Delta obviously disagrees with the

District Court’s ultimate determination that the case should be

dismissed, but this does not establish that the District Court failed

to apply the proper level of deference. Delta’s forum choice

“should not be given dispositive weight.” Piper Aircraft, 454 U.S.

at 255 n.23. Although citizens “deserve somewhat more deference

than foreign plaintiffs, . . . dismissal should not be automatically

barred when a plaintiff has filed suit in his home forum.” Id. “As

always, if the balance of conveniences suggests that trial in the

chosen forum would be unnecessarily burdensome for the

defendant or the court, dismissal is proper.” Id.

The District Court explained that it had granted Delta’s

9

choice of forum considerable deference but that the balance of

conveniences nonetheless warranted dismissal. Other than its own

ipse dixit, Delta has nothing to substantiate its suspicions that the

District Court was merely paying lip service to the governing

standard. We conclude that the District Court did not abuse its

discretion in determining the level of deference to be accorded to

Delta’s choice of forum.

B.

Delta’s second argument is that the District Court erred in

its application of the Gilbert factors. In Gilbert, the Supreme Court

“provided a list of ‘private interest factors’ affecting the

convenience of the litigants, and a list of ‘public interest factors’

affecting the convenience of the forum.” Piper Aircraft, 454 U.S.

at 241 (quoting Gilbert, 330 U.S. at 508-09). The private interest

factors affecting the convenience of the litigants include:

the relative ease of access to sources of proof;

availability of compulsory process for attendance of

unwilling, and the cost of obtaining attendance of

willing, witnesses; possibility of view of premises, if

view would be appropriate to the action; and all

other practical problems that make trial of a case

easy, expeditious and inexpensive.

Gilbert, 330 U.S. at 508; see Piper Aircraft, 454 U.S. at 241 n.6.

The public interest factors affecting the convenience of the forum

include:

the administrative difficulties flowing from court

congestion; the “local interest in having localized

controversies decided at home”; the interest in

having the trial of a diversity case in a forum that is

at home with the law that must govern the action; the

avoidance of unnecessary problems in conflict of

laws, or in the application of foreign law; and the

unfairness of burdening citizens in an unrelated

forum with jury duty.

10

Piper Aircraft, 454 U.S. at 241 n.6 (quoting Gilbert, 330 U.S. at

509). Delta argues that the District Court erred in its application of

both sets of factors.

1.

We begin by analyzing the private interest factors that

supported the District Court’s conclusion that Italy would be a

significantly more convenient forum for the litigants. The District

Court concluded that “[a]ll of the evidence regarding the

communications between Chimet and Delta, the meaning of the

term ‘VAL VAL VAL VAL,’ and whatever documentary evidence

exists outside of the air waybill and delivery receipt is in Italy.”

App. 31-32. The court also noted that Chimet would need to

depose third-party witnesses who reside in Italy, speak only Italian,

and are beyond the scope of the Court’s subpoena power. App. 32.

The court further reasoned that “all of the documentary evidence,

other than the waybill and receipt, memorializing the involvement

of Chimet, Arexpress, Securpol Vigilantes, Vicenza Sped, and

Malpensa Logistica Europea S.p.A. is located in Italy and will be

in Italian.” App. 32-33. The District Court therefore concluded

that these private interest factors supported dismissal.

Delta counters that none of the evidence cited by the District

Court is actually necessary to adjudicate the dispute. It contends

that the dispute can be resolved by applying the Montreal

Convention’s liability provisions to a single contractual document:

the air waybill. Delta therefore argues that the District Court’s

analysis was based on the faulty premise that additional evidence

would need to be gathered in Italy. We have explained that for the

ease of access to evidence to enter the Gilbert analysis, the

evidence in question must actually be relevant to resolving the

dispute:

In examining the relative ease of access to sources of

proof, and the availability of witnesses, the district

court must scrutinize the “substance of the dispute

between the parties to evaluate what proof is

required, and determine whether the pieces of

evidence cited by the parties are critical, or even

11

relevant to, the plaintiff’s cause of action and to any

potential defenses to the action.”

Lacey, 862 F.2d at 46 (quoting Van Cauwenberghe, 486 U.S. at

528); accord Lony, 886 F.2d at 635-36. If resolution of Delta’s

claim under the Montreal Convention did not require looking

beyond the air waybill, as Delta argues, then the District Court

should not have considered Chimet’s asserted need to gather

additional evidence in Italy. We must examine how the

transactional documents in the record fit within the contractual

scheme created by the Montreal Convention to evaluate Delta’s

argument.

“When interpreting a treaty, we begin with the text of the

treaty and the context in which the written words are used.”

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699

(1988) (quotation marks omitted). The Montreal Convention limits

the carrier’s liability for loss of cargo, unless the consignor declares

a higher value:

In the carriage of cargo, the liability of the carrier in

the case of destruction, loss, damage or delay is

limited to a sum of 17 Special Drawing Rights per

kilogramme, unless the consignor has made, at the

time when the package was handed over to the

carrier, a special declaration of interest in delivery at

destination and has paid a supplementary sum if the

case so requires. In that case the carrier will be

liable to pay a sum not exceeding the declared sum

....

Art. 22(3). The Convention does not specify how this “special

declaration of interest” is to be documented, but it does require the

delivery of a document, typically an air waybill, to preserve the

record of carriage. See Art. 4(1) (“In respect of the carriage of

cargo, an air waybill shall be delivered.”); Art. 4(2) (“Any other

means which preserves a record of the carriage to be performed

may be substituted for the delivery of an air waybill.”). If a

document other than a waybill is used to preserve the record of

carriage, “the carrier shall, if so requested by the consignor, deliver

12

to the consignor a cargo receipt permitting identification of the

consignment and access to the information contained in the record

preserved by such other means.” Art. 4(2). The Convention

specifies certain information that must be included in the air

waybill or cargo receipt, including “an indication of the places of

departure and destination,” and “an indication of the weight of the

consignment.” Art. 5. The consignor is responsible for the

accuracy of the information in the air waybill or cargo receipt, Art.

10(1), even if the carrier “makes out the air waybill . . . on behalf

of the consignor,” Art. 7(4). Accordingly, “[t]he consignor shall

indemnify the carrier against all damage suffered by it, or by any

other person to whom the carrier is liable, by reason of the

irregularity, incorrectness or incompleteness” of the information

“furnished by the consignor or on its behalf.” Art. 10(2). The

Convention also provides that “[t]he air waybill or the cargo receipt

is prima facie evidence of the conclusion of the contract, of the

acceptance of the cargo, and of the conditions of carriage

mentioned therein.” Art. 11(1).

Delta argues that under these Montreal Convention

provisions, this case can be decided solely by reference to the air

waybill. As set forth above, the Convention designates the air

waybill or cargo receipt as the primary mechanisms for recording

the conditions of carriage. The Convention also provides that the

consignor is responsible for creating the air waybill, see Art. 7(1)

(“The air waybill shall be made out by the consignor . . . .”), for the

accuracy of the air waybill, and for any damages caused by

inaccuracies in the air waybill. Art. 10. Based on these provisions,

Delta argues that Chimet failed to fulfill its responsibility to declare

“a special declaration of interest” under Article 22(3).

We agree that Chimet failed to document in the waybill that

it made a special declaration of interest or paid a supplemental

sum. The waybill does not include any explicit reference to a

declared value, and Chimet was responsible for completing the

waybill and verifying its accuracy. We also agree with Delta’s

general contention that an air waybill typically functions as the

primary mechanism for documenting the terms of carriage. We

disagree, however, that this dispute can be conclusively resolved

solely by examining the air waybill.

13

As the District Court recognized, the air waybill includes

conflicting and inconsistent information. The air waybill describes

the goods as “PURE PLATINUM” and includes the following

entry:

VAL VAL VAL VAL

THE FINAL TRANSPORTATION FROM THE

AIRPORT TO THE CONSIGNEE’S ADDRESS

MUST BE PERFORMED BY CUSTOMS

BROKERS OR SPECIALISED COURIERS TO

FORWARD VALUABLE CARGO

App. 96. Although the meaning of the “VAL VAL VAL VAL” is

not clear, the reference to valuable cargo supports Chimet’s

contention that it declared a higher value for the shipment. Chimet

has also produced an affidavit stating that the “air waybill shows

that additional transportation costs were paid.” App. 118.

The delivery receipt constitutes documentary evidence that

Chimet may have declared a value of €3,050,000.00 for the

shipment. Chimet asserts that when Delta received the shipment,

it also “received a delivery receipt from Vicenza Sped for the

Platinum that listed the value of the Platinum as €3,050,000.00.”

App. 116. The delivery receipt, although somewhat difficult to

interpret, includes an entry that corroborates this value. See App.

94 (listing “EU 3.050.000,00”). Although we disagree with

Chimet’s suggestion that the delivery receipt functions as a “cargo

receipt” providing “prima facie evidence” of the declared value

under Article 11 of the Convention, see Chimet Br. at 19,3 we

conclude that the documentary evidence in the record does not

conclusively resolve the dispute.

Nothing in the Montreal Convention precludes the

3

The “cargo receipt” is a document prepared by the carrier

at the request of the consignor. Art. 4(2). The delivery receipt was

prepared by Vicenza Sped, not Delta. App. 94. Moreover, the

delivery receipt does not appear to include the information required

under Article 5 of the Convention.

14

consideration of extrinsic evidence to determine the terms of the

contract of carriage. On the contrary, the Convention includes

language suggesting that other evidence beyond the air waybill may

be considered. While the Convention designates the air waybill as

the default method for preserving a “record of the carriage,” it also

contemplates the possibility that “[a]ny other means” may be used

to preserve such a record. Art. 4(2); see also Art. 10(1) (referring

to the “record preserved by the other means referred to in

paragraph 2 of Article 4”); Art. 10(3) (same).4 In addition, Article

11 provides merely that the “the air waybill or the cargo receipt is

prima facie evidence of the conclusion of the contract, of the

acceptance of the cargo, and of the conditions of carriage

mentioned therein.” Art. 11(1). This word choice – as contrasted

with more explicit options such as “conclusive” or “complete” –

clearly contemplates the possibility that the air waybill or cargo

receipt may be rebutted by other evidence. See Black’s Law

Dictionary (8th ed. 2004) (defining prima facie evidence as

“[e]vidence that will establish a fact or sustain a judgment unless

contradictory evidence is produced” (emphasis added)). The

delivery receipt provides at least some evidence to rebut Delta’s

position that no supplemental value was declared. Given the

apparent tension between the waybill and the delivery receipt, as

well as potential inconsistencies within the waybill itself, the

District Court did not err by considering the parties’ ability to

gather additional evidence on this disputed issue.

Furthermore, Chimet met its burden of demonstrating that

this evidence may only be obtained in Italy. Chimet produced an

affidavit attesting to the need to obtain testimony from a number of

Italian witnesses over whom United States courts lack subpoena

power:

4

The provision in Article 4(2) stating that “[i]f such other

means are used, the carrier shall, if so requested by the consignor,

deliver to the consignor a cargo a receipt permitting identification

of the consignment and access to the information contained in the

record preserved by such other means” does not rule out the

possibility that another method for preserving the record of

carriage, other than a waybill or cargo receipt, may have been used.

15

To resolve the issue of whether Chimet made a

declaration of value for shipment and paid a

surcharge for it, Chimet will require the testimony of

at least Arexpress and Vicenza Sped and the

following individuals: Mr. Manuele Nocenti of

Arexpress who arranged the operations pertaining to

the transportation and custom clearance of the

Platinium and gave instructions to Securpol and

Vicenza Sped; Mrs. Stefania Criscuolo and Lavinia

Damian of Vicenza Sped who [were] aware of the

conditions in which [the] air waybill and delivery

receipt were completed and provided to Delta; and

also Messrs. Mattteo Vencato and Corrado Vezzaro

who, on behalf of Vicenza Sped, physically

delivered the goods to the agent of Delta received

from this agent, as acknowledgment, the stamp

signature on the “merchandise delivery receipt”

mentioned above.

App. 118-19. This affidavit was sufficient to meet Chimet’s

burden of persuasion on this point. A party seeking to dismiss an

action on forum non conveniens grounds is not required “to

describe with specificity the evidence they would not be able to

obtain if trial were held in the United States.” Piper Aircraft, 454

U.S. at 258. The Supreme Court has rejected the suggestion that

“defendants seeking forum non conveniens dismissal must submit

affidavits identifying the witnesses they would call and the

testimony these would provide if the trial were held in the

alternative forum,” explaining that “[s]uch detail is not necessary.”

Id. Rather, the defendant “must provide enough information to

enable the District Court to balance the parties’ interests.” Id. In

this case, Chimet identified the witnesses it intended to depose and

proffered in oral argument the information that it expected to

obtain. Given these representations, the District Court did not

abuse its discretion in determining that access to evidence and the

availability of witnesses weighed in favor of dismissal.

Delta also challenges the District Court’s analysis regarding

Chimet’s stated intent to join third parties that it could not join if

the litigation were to go forward in the United States. The District

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Court considered “Chimet’s ability to join Arexpress, Securpol

Vigilantes, Vicenza Sped, and Malpensa Logistica Europea S.p.A.

in its litigation with Delta” as an additional private interest factor

supporting dismissal. App. 33. A defendant’s “stated desire to

pursue contribution claims against potentially responsible third

parties” is a relevant private interest factor. Windt, 529 F.3d at

195. Delta asserts that Chimet has not, in fact, pursued claims

against these third parties, and that the statute of limitations for

bringing a claim under the Montreal Convention has now lapsed.

See Delta Reply Br. at 5-6. Given our direction that a defendant’s

“stated desire” to pursue claims against foreign third parties must

be considered among the private factors, Windt, 529 F.3d at 195

(emphasis added), Delta’s argument that Chimet has not followed

through on that stated desire does not warrant vacating the

judgment. The District Court reasonably concluded that the private

interest factors weighed in favor of dismissing the action.

2.

We turn next to the District Court’s consideration of the

public interest factors. The District Court concluded that “the local

interest in having localized controversies decided at home favors

dismissal of this action” because the “locus of the alleged culpable

conduct is Italy.” App. 34 (citing Lacey, 862 F.2d at 48). The court

also concluded that “the administrative difficulties flowing from

court congestion is a neutral factor” and that the courts in the two

countries are “equally qualified to interpret and enforce” the

Montreal Convention. App. 34.

Delta argues that the District Court failed to give sufficient

weight to Pennsylvania’s interest in the dispute. The factual issues

at the center of this dispute, however, all involve whether Chimet

declared the value of the shipment when it delivered the platinum

to Delta in Italy. The circumstances under which the shipment of

cargo was lost in Pennsylvania are not relevant to determining

whether Delta’s liability is limited under the Montreal Convention.

“In evaluating the public interest factors the district court must

‘consider the locus of the alleged culpable conduct, often a

disputed issue, and the connection of that conduct to plaintiff’s

chosen forum.’” Lacey, 862 F.2d at 42 (quoting Van

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Cauwenberghe, 486 U.S. at 528). We agree with the District

Court that the locus of the alleged culpable conduct was Italy, not

Pennsylvania. The District Court therefore reasonably concluded

that the public interest factors also supported dismissal of the

action.

* * * *

Insofar as both sets of Gilbert factors – the private interest

factors affecting the convenience of the litigants and the public

interest factors affecting the convenience of the forum – weighed

in favor of litigating this dispute in Italy, the District Court did not

abuse its discretion by granting Chimet’s motion to dismiss on

forum non conveniens grounds.

IV.

For the foregoing reasons, we will affirm the judgment of

the District Court.

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