Laker Airways Ltd. v. Sabena, Belgian World Airlines

STARR, Circuit Judge,

dissenting:

It is with reluctance that I am constrained to dissent, for there is much in the majority’s thorough opinion with which I fully agree. The majority’s opinion demonstrates persuasively that the jurisdictional basis for Laker’s action in the United States District Court is firmly established under settled principles of United States and international law. Judge Wilkey’s scholarly analysis further demonstrates that it is not at all unusual for a court vested with jurisdiction to issue appropriate orders to vindicate that jurisdiction, even when such orders arrest the prosecution of actions in the courts of another sovereign.

But it is my judgment that principles of comity among the courts of the international community counsel strongly against the injunction in the form issued here. The concept of comity of nations, a “blend of courtesy and expedience,” 1 was defined by the Supreme Court in Hilton v. Guyot as

the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

159 U.S. 113, 164 , 16 S.Ct. 139, 143 , 40 L.Ed. 95 (1895).

The difficulty in applying this open-ended idea stems from the fact that “ ‘[cjomity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.” Id. at 163-64 , 16 S.Ct. at 143-144 . New hard-and-fast rules or talismanic tests are to be found. Nonetheless, it is clear that under appropriate circumstances, United States courts will invoke the principle of comity in recognition of the interests of another sovereign.

In light of these principles, it is important to note that this is, at bottom, a private antitrust action filed in a United States court by a foreign litigant against, among others, four United States corporate defendants. This is plainly not an action informed with a public interest beyond that implicated by any private litigant enforcing admittedly important congressionally granted rights. Not only is the instant action not brought by the United States to vindicate sovereign United States interests, but no evidence has been manifested of any sovereign United States interest in the present suit. For whatever reason, and I do not pretend to powers of divination as to why, the Executive has been silent as to what, if any, public interests are touched by Laker’s antitrust suit.

In stark contrast, it is clear beyond cavil that the British Executive is emphatically interested in this suit brought by a British subject in United States courts. This sovereign interest articulated by representatives of Her Majesty’s government, premised upon British disaffection for the operation and reach of United States antitrust laws, is one that I cannot in con *255 science reasonably discount. After all, Laker is a British subject which carried on its operations as a heavily regulated air carrier under United Kingdom law. Its routes to and from the United States were established under the umbrella of the Bermuda II Treaty between the United Kingdom and the United States. The United Kingdom thus possesses a clear governmental interest in the activities of a now defunct but once heavily regulated British concern.

To be sure, Laker’s status as a British subject, without more, does not mean that United States courts must unalterably bow to the rulings of British courts in actions filed after the instant suit was in progress. The majority has indeed persuasively demonstrated that no principle of “paramount nationality” is recognized in international law. But I am persuaded that it is not at all incompatible with our oath of office for United States judges to recognize the practical reality that the United Kingdom may in fact ultimately have power to prevent Laker’s maintaining any United States antitrust action. And the exercise of such a power should not automatically, without benefit of the views of either the British or United States Executive, be deemed violative of United States public policy. For it seems to me that, while the facts of the case are indeed distinguishable, the spirit of the Supreme Court’s ruling in Dames & Moore v. Regan, 453 U.S. 654 , 101 S.Ct. 2972 , 69 L.Ed.2d 918 (1981), suggests strongly that a sovereign government can prohibit one of its nationals from proceeding in a particular forum, and indeed can require actions to be brought in a specific forum which may not at all be to the citizen’s liking. It would appear, albeit from a vantage point from which I confess the players and movements can be perceived only dimly, that the British Executive is moving toward the exercise of precisely the power recognized unanimously as to the Presidency by the United States 'Supreme Court in Dames & Moore.

Admittedly, Dames & Moore was grounded upon the President’s foreign relations power, and evidenced the United States judiciary’s appropriate and understandable reluctance to take actions that would disrupt or unwind the foreign policy actions of the Executive, particularly in connection with a matter of such moment as the implementation of accords effecting the extrication of American hostages from Tehran. Here, in contrast, the British Executive appears to be proceeding not from the compelling circumstances of a hostage crisis but from its antipathy toward United States antitrust laws. But it is, in my judgment, not for me to say whether the British Executive’s attitude in this respect is reasonable or unreasonable. With all respect to the majority, I am not endowed with sufficient knowledge or information on the limited record before us to pass judgment on the British views that my brethren find so distasteful. It may be that the application of United States antitrust laws under the circumstances of Laker’s transatlantic traffic is eminently sound and reasonable under principles governing the regulation of trade that is both within and beyond national borders. But today’s decision will not settle the raging debate across the Atlantic, and indeed throughout much of the industrialized world, about the application of domestic United States law.

The injunction sustained today is, I am thus constrained to conclude, unduly sweeping in light of considerations of comity. To be sure, as the majority quite properly notes, KLM and Sabena failed to avail themselves of- the District Court’s invitation for suggestions to narrow the injunction’s sweep. But failure to seek a narrowing of the order, while reducing the foreign airlines’ equities in this court, does not end the issue for me. We take the injunction as we find it, and it cannot reasonably be maintained that the foreign airlines have waived any objection to the order. Indeed, Laker does not so argue, and the majority quite rightly does not ground its result on any such principle.

And so we face the injunction itself. By its terms, the District Court’s order quite literally forbids the foreign airlines from entering any court in the world, including *256 courts of their own respective nations, to contest Laker’s right to maintain the instant action. This approach, fashioned under the strain of critical moments when it reasonably appeared to the learned trial judge that jurisdiction over important defendants might irrevocably be lost, is simply too broad to sustain, in light of the countervailing considerations of comity among nations. 2

Thus, I would favor vacating the present injunction and remanding the case to the District Court for consideration of narrowing its order. The District Court might well decide to enjoin KLM and Sabena only from seeking countersuit injunctive relief ;pendente lite in the English courts, thus allowing them to follow the example of Lufthansa and Swissair in bringing declaratory judgment actions. This would allow two or more related actions — Laker’s antitrust suit and the foreign defendants’ declaratory judgment action in foreign court — to proceed simultaneously, without any direct interference from the other sovereign’s courts. This type of injunction seems clearly preferable on comity grounds. 3

A foreign court would thus be allowed to adjudicate the status of the parties before it under that nation’s laws and regulatory provisions, including any applicable aviation treaties. If both the United States and foreign actions proceeded to judgment, choice of law questions would likely be presented in the execution of the judgments and would be considered at that stage of the litigation. However, several developments in this matter could moot this potential conflict, including a negotiated settlement of the inter-governmental dispute over the scope and applicability of United States antitrust laws; a decision against Laker on the merits in the United States District Court; or a judicial decision against the foreign defendants in the foreign court. A narrow injunction would thus preserve the possibility that the ultimate conflict-of-laws questions would be mooted, either through diplomatic channels or a defeat either for Laker or the foreign airlines in their respective actions. The narrower injunction would result in substantially less interference with foreign courts, with no “surrender” of the jurisdiction of the United States over Laker’s antitrust claims.

I would further suggest that in the exercise of its sound discretion the District Court invite the Executive to present the views of the United States. Those views might well have an important bearing upon the extent of the sovereign interests of the United States, if any, in this action. 4

A tempest has been brewing for some time among the nations as to the reach of this country's antitrust laws, and today’s decision strikes a strong blow in favor of what will be viewed by many of our friends and allies as a rather parochial American outlook. But whether that blow is well conceived, it is, with all respect, at tension with the orderly operation of our two nations’ respective judicial systems. As both the majority and the District Court recog *257 nize, it is serious business to issue an injunction against proceedings in a sister nation. This is most keenly true with respect to a nation from which we inherited so much of our legal system. Inasmuch as only extraordinary reasons justify the issuance of such an injunction, I would remand the case to the District Court for further proceedings aimed at narrowing the injunction, consistent with the principles of comity that inform the seemly accommodation of sharply divergent and competing national interests.

. Canadian Filters (Harwich) Ltd. v. Lear-Siegler, Inc., 412 F.2d 577, 578 (1st Cir.1969).

. It is far from clear to me that a refusal by the District Court to grant the injunctive relief requested by Laker as to the foreign defendants would have sounded the death knell of Laker’s antitrust action, inasmuch as the American defendants would remain before the court in any event.

. Evidencing comparable concern for principles of comity, the court in Medtronic, Inc. v. Catalyst Research Corp., 518 F.Supp. 946 (D.Minn.1981), aff’d 664 F.2d 660 (8th Cir.1981), granted a narrow injunction preventing defendant from seeking an injunction against plaintiff’s continued manufacture of a product which was the subject of a patent suit. The court specifically noted that the relief would "in no way interfere with" defendant’s foreign patent infringement and validity actions in foreign courts.

.The possible usefulness of Executive guidance in this matter has appropriately been recognized by the district court. On November 17, 1983, Judge Greene appointed amicus curiae in this case to "assist the Court in determining what action by the Court is required or appropriate in light of the decisions of the English authorities ____” Judge Greene suggested, among other things, that amicus "consider what relationship, if any, should be established with the Department of Justice or the Department of State to enlist their cooperation or assistance."