Petition for Writ of Certiorari — Pan American World Airways, Inc. v. Pampin Lopez

No. ———— JOSEPH F. SPANIOL, JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

PAN AMERICAN WORLD AIRWAYS, INC.,

Petitioner,

ERNESTO SERIO PAMPIN LOPEZ, Individually and as

Administrator of the Estate of his Deceased

Mother, SARA E. LOPEZ DE PAMPIN, et al.,

Re sponde fi rs.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT E. KERRIGAN, JR RICHARD M. SHARI

MARC J. YELLIN Counsel of Re

DARRELL K. CHERRY CYNTHIA W. SIMON

DEUTSCH, KERRIGAN SHEA & GARDNER

AND STILES 1800 Massachusetts Ave., N.W

755 Magazine Street Washington, D.C. 20036

New Orleans, LA 70130 202) 828-2000

504) 581-5141

f munsel f Petit ner Par Ameri 17 W d Ain

November 6, 1987

789-0096 - WASHINGTON, D.C. 20001

WILSON EPes PRINTIN

QUESTIONS PRESENTED

1. Whether a defendant who is jointly and severally

liable for a foreign plaintiff's losses is precluded, as a

matter of law, from invoking the discretionary principles

of forum non conveniens whenever a co-defendant, such

as the United States, is unable or unwilling to appear in

any foreign court that could serve as the “alternative

forum” for trying damages claims.

2. Whether the limitations on liability established by

the Warsaw Convention and the Montreal Agreement are

extinguished pursuant to the terms of Article 3(2) of

the Convention or the Montreal Agreement if the advice

of limited liability that is printed on the passenger’s

ticket appears in 9-point rather than 10-point type.*

* In addition to the parties listed in the caption, the United States,

Luis Alberto Trivelloni-Lorenzi and Susana Electra Trivelloni-

Lorenzi were parties to proceedings in the Court of Appeals.

The companies and organizations Pan American World Airways,

Inc. (“Pan Am’’) is required to list in compliance with Rule 28.1 of

the Rules of this Court are the following: Aeronautical Radio, Inc.,

Air Cargo, Inc., Airline Tariff Publishing Company, Escola Ameri-

cana de Rie de Janeiro, Honolulu Fueling Facilities Corporation,

International Aeradio (Caribbean) Ltd., Liberian Development

Corporation, Manhattan Air Terminal, Inc., Nigerian Aviation

Handling Co., Pan Am Corporation, Promotora de Hoteles de

Turismo Medellin, S.A., Radio Aeronautica Paraguaya, S.A., Social

Immobiliaria Norteamericana, S.A., Societe de Tourisme et Repre-

sentation, and Societe International de Telecommunications Aero-

nautiques.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED -----.----. ---...____-

TABLE OF AUTHORITIES .....................-

NT eink ee encamssanananneane

ent caccgdilianncence

REASONS FOR GRANTING THE WRIT _________-

I.

II.

The Court Should Review The Fifth Circuit's

Decision Because It Establishes An Important

And Inflexible Prerequisite To The Invocation

Of The Doctrine Of Forum Non Conveniens, It

Significantly Reduces The Utility Of That Doc-

trine In Litigation Arising From Class And

Mass Disasters, And It Conflicts With A Deci-

sion Of The Sixth Circuit _..._..__.__._._____

The Court Should Review The Fifth Circuit's

Decision Because It Adopts A Construction Of

The Warsaw Convention That Has Been Re-

jected By The District Of Columbia Circuit

And The Supreme Court Of Canada _________

EE

APPENDICES (separately bound)

A. En Bane Opinion of the court of appeals ______

B. Panel opinion of the court of appeals _________

C. Judgment of the district court of August 30,

1984, in Civil No. 82-3475 _.._........._____

iv

TABLE OF CONTENTS—Continued

Page

D. Judgment of the district court of August 30,

1964, in Civil No. 82-3476 .................. 100a

E. Minute Entry of the district court of May 21,

1984, in Civil Nos. 82-3475 & 82-3476 regarding

EE 102a

F. Judgment of the court of appeals in Trivelloni-

DOPGRE, Gel. BOGE acacducéasdstedennenuees 108a

G. Judgment of the court of appeals in Pampin

ee eS eee eae 105a

H. Pertinent excepts of the Warsaw Convention... 107a

I. The Montreal Agreement -_-.........-.----- Illa

v

TABLE OF AUTHORITIES

CASES Page

Bouvy-Loggers Vv. Pan American World Airways,

Inc., 15 Av. Cas. (CCH) 17,153 (S.D.N.Y.

ae ee De nS mn Sa 12

Chhawchharia v. The Boeing Co., 657 F. Supp.

eee ae 12

DeMelo v. Lederle Laboratories, 801 F.2d 1058

See Ss: EE satnclns clean cedee banat tana oteciecimeas 9

Eck v. United Arab Airlines, Inc., 12 Av. Cas.

18,427 (CCH) (N.Y. Sup. Ct. 1974) ___----- 15

Fitzgerald v. Texaco, Inc., 521 F.2d 448 (2d Cir.

1975), cert. denied, 423 U.S. 1052 (1976) __-- 9

Friends For All Children v. Lockheed Aircraft

Corporation, 717 F.2d 602 (D.C. Cir. 1983) _._- 10

Gilchrist Vv. Trans Canada Air Lines, 27 A.D.2d

524, 275 N.Y.S.2d 394 (1966) ............._- 12

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ___6, 7, 8, 9

In re Air Crash Disaster at Pago Pago, Ameri-

can Samoa on January 30, 1974, 394 F. Supp.

Fee Saree, SOE deicnntibaniaainiaheaaank 13

In re Air Crash Disaster at Riyadh Airport,

Saudi Arabia, 540 F. Supp. 1141 (D.D.C.

DEED nacicniecbaehiinnasdimentiadtaeteteaadate 11, 12

In re Air Crash Disaster at Tenerife, Canary

Islands on March 27, 1977, 461 F. Supp. 671

PR 8 Re eee ree pane oe 13

In re Air Crash Disaster at Warsaw, Poland, 705

F.2d 85 (2d Cir.), cert. denied, 464 U.S. 845

GED: gtccmetendiinemnintliicatieindeendaean 6, 15, 16

In re: Korean Airlines Disaster of September 1,

1983, 19 Av. Cas. (CCH) 17,584 (D.D.C. 1985) _ 17

In re: Korean Air Lines Disaster of September 1,

1983, No. 85-5982 (D.C. Cir. Sept. 25, 1987) ___ 15, 17,

18, 19

In re Richardson-Merrell, Inc., 606 F. Supp. 715

(Ai ee REED shcccnaseeneshenaandens 13

In re Union Carbide Corp. Gas Plant Disaster,

809 F.2d 195 (2d Cir.), cert. denied, 108 S.Ct.

GP Gee) | datidinieeddnidnadadmemmiehin 12

vi

TABLE OF AUTHORITIES—Continued

Jennings v. The Boeing Co., 660 F. Supp. 796

(E.D. Pa. 1987), amended June 23, 1987 (order

available on WESTLAW and in Avi. Lit. Rep.

(Andrews) 7320 (July 13, 1987) ~......-----

Lisi v. Alitalia-Linee Aeree Italiane, S.p.A., 370

F.2d 508 (2d Cir. 1966), aff'd by an equally di-

Page

vided court, 390 U.S. 455 (1968) ~.....-...- 15, 16, 18

Ludecke v. Canadian Pacific Airlines, Ltd, %

D.L.R. 3d 52, 15 Av. Cas. (CCH) 17,687 (Can.

1979) | cnncccccnccccccccecocecaccscecesseses

Mertens v. Flying Tiger Line, Inc., 341 F.2d 851

(2d Cir.), cert. denied, 382 U.S. 816 (1965) ..

Millikin Trust Co. v. Iberia Lineas Aereas de

Espagna, S.A., 11 Av. Cas. (CCH) 17,331 (N.Y.

Sup. Ct. 1969), aff'd without opinion, 36 A.D.2d

582, 317 N.Y.S.2d 734 (1971) .....-----------

Moorhead v. Mitsubishi Aircraft International,

Inc., 639 F. Supp. 385 (E.D. Tex. 1986), af-

firmed in part, rev'd in part, 828 F.2d 278 (5th

Cir. 1987) --......2--2-2 220 nenenneoo-----

Myers Vv. The Boeing Co., No. 86-2-14507-9 (Wash.

Super. Ct. Sept. 10, 1987) (reprinted in Avi.

Lit. Rep. (Andrews) 7621 (Sept. 28, 1987)) ~~.

Pain v. United Technologies Corp., 637 F.2d 775

(D.C. Cir. 1980), cert. denied, 454 U.S. 1128

(1981) ..-.nnccccccecccccocccccccceceeecees

15, 18

16

15

11

12

9, 12

Piper Aircraft Co. ¥. Reyno, 454 U.S, 235 (1981) . 6,7, 8,

United States v. Sharpe, 470 U.S. 675 (1985) ~~~.

Warren Vv. Flying Tiger Line, Inc., 352 F.2d 494

(Sth Cir. 19068) .cccccccccccccccccccccceccce

Washington Vv. Washington State Commercial Pas-

senger Fishing Vessel Association, 443 U.S. 658

(1978) .nncccoccccccccecccaeccacccccascceces

Watson V. Merrell Dow Pharmaceuticals, Inc., 769

9,12

20

16

F.2d 354 (6th Cir. 1985) ~.....-----.------ 11,13, 14

vii

TABLE OF AUTHORITIES—Continued

TREATY AND AGREEMENT Page

Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934),

note following 49 U.S.C. app. § 1502 (1982)... passim

Agreement Relating to Liability Limitations of

the Warsaw Convention and the Hague Proto-

col, Agreement CAB 18900 approved by CAB

Order E-29680, May 13, 1966, Docket 17235,

31 Fed. Reg. 7202 (1966), note following 49

U.S.C. app. § 1502 (1982) ...........--.----- passim

STATUTES AND RULE

Federal Torts Claims Act, as amended :

98 U.S.C. $ 9671 (1968) ...........-...---- 3

28 U.S.C. § 2672 (1982) .....-.-.--- eee 3

TUBC. 8 SGN (IGEED ..cccccccccsccescces 10

28 U.S.C. § 2675 (1982) .........-.--.------ 3

28 U.S.C. § 2679 (1982) .....---..-.-.--- a 10

93 U.S.C. 6 9688 (18GB) .....cccccccccccceces 10

Public Vessels Act, as amended :

46 U.S.C. app. § 781 (Supp. IT] 1985) _....... 10

46 U.S.C. app. § 782 (Supp. ITT 1985) ........ 10

Suits in Admiralty Act, as amended :

46 U.S.C. app. § 741 (Supp. ITT 1985) ....... 10

46 U.S.C. app. § 742 (Supp. ITT 1985) _....... 10

UBC. 6 1068 (00GR) ..nccccececcecece- ae

$8 U.S.C. 8 2667 (EIGER) .<ccccccceccccccecee--- 12

43 U.S.C. § S818 (1968) ..........-..-.-------- 10

42 U.S.C. $2212 vee TIT 1985) . 10

Fed. R. Civ. P. 19 . PA Ares see ee ae 9

Fed. R. Civ. P. 21 ...... A ee ee 9

MISCELLANEOUS

Dilk, Arietion Tort Litigation Against the

United States—Judicial Inroads on the Pilot-

in-Command Concept, 52 J. Air. L. & Com. 797

CREED cnccccccconseccesscecceseseecesoess 10

In THE

Supreme Court of the United States

OcToBER TERM, 1987

PAN AMERICAN WorRLD AIRWAYS, INC.,

Petitioner,

we

ERNesto Serio PAMPIN Lopez, Individually and as

Administrator of the Estate of his Deceased

Mother, Sara E. Lopez pe PAMPIN, ef a/.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner Pan American World Airways, Inc., respect-

fully requests that the Court issue a writ of certiorari to

review the judgment of the United States Court of Ap-

peals for the Fifth Circuit in these cases,

OPINIONS BELOW

The en bane opinion of the court of appeals (App.

la! is reported at 821 F.2d 1147 (1987). The opinion of

the panel of the court of appeals (App. Sla)’ is reported

at 789 F.2d 1092 (1986). The district court's ordér

granting partial summary judgment for plaintiffs (App.

102a' is not reported. The district court's order deny-

2

ing Pan Am’s motion to dismiss on the grounds of forum

non conveniens is reflected as a “minute entry” on the

court’s docket sheet and is not reported.

JURISDICTION

The judgments of the court of appeals upon rehearing

en banc were entered on July 21, 1987. App. 103a and

105a. On October 12, 1987, Justice White extended the

time for filing this petition for a writ of certiorari to

and including November 6, 1987. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1) (1982).

TREATIES AND AGREEMENTS INVOLVED

The Warsaw Convention,! a treaty ratified by the

United States, is reproduced in part at App. 107a-110a.

The Montreal Agreement,” a private agreement signed by

various air carriers, is reproduced at App. 1lla-114a.

STATEMENT OF THE CASE

1. Proceedings in the District Court. On July 9, 1982,

Pan American World Airways, Ine. (‘Pan Am’) Flight

759 crashed at Kenner, Louisiana, killing all 145 people

on board. Approximately 56 of the victims were foreign

nationals.

Relying on diversity jurisdiction, 28 U.S.C. § 1332,

foreign nationals filed approximately 52 actions in vari-

ous United States District Courts to recover for the

1 Convention for the Unification of Certain Ruies Relating to In-

ternational Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S.

No. 876 (1934), note following 49 U.S.C. app. § 1502; App. 107a.

(Hereinafter referred to as the “Warsaw Convention.” )

2 Agreement Relating to Liability Limitations of the Warsaw

Convention and the Hague Protocol, Agreement CAB 18900 ap-

proved by CAB Order E-23680, May 18, 1966, Docket 17235, 31

Fed. Reg. 7302 (1966), note following 49 U.S.C. app. § 1502; App.

llla. (Hereinafter referred to as the “Montreal Agreement.”)

3

deaths of at least 42 of the approximately 56 foreign

decedents who were aboard the flight.* These initial com-

plaints generally named as defendants Pan Am, the

municipal board that operated the airport, and manu-

facturers of the aircraft.*

After the foreign and domestic cases were consolidated

for discovery and related pretrial proceedings in the

United States District Court for the Eastern District of

Louisiana, Pan Am moved to dismiss the suits relating

to all foreign decedents on the ground of forum non

conveniens. In this connection, it proposed that the dis-

missal of these suits should be conditioned on various

undertakings by Pan Am including: (1) Pan Am would

forgo contesting its liability for the accident; (2) Pan

Am would waive the limits or ceilings placed on damages

of air carriers covered by the Warsaw Convention and

the Montreal Agreement; (3) Pan Am would submit to

the jurisdiction of (and appear in) the courts of each

foreign plaintiff’s domicile; and (4) Pan Am would fully

satisfy any judgment by the foreign court that was ren-

dered against it.’ App. 5a.

At the time this metion was made, the United States

was not a party defendant because the plaintiffs had not

yet exhausted the administrative procedures of the Fed-

eral Tort Claims Act, 28 U.S.C. §§ 2671-72, 2675; but it

3 In addition, approximately 39 suits were filed by American na-

tionals against Pan Am and others in federal courts for the wrong-

ful death of approximately 44 victims who were nationals or resi-

dents of the United States.

*Among the defendants sued were United States Aviation

Underwriters, Inc., the New Orleans Aviation Board, and the

manufacturers, including the Boeing Company, United Technologies

Corp., and the Pratt-Whitney Aircraft group. Eventually all de-

fendants except Pan Am and the United States were dismissed from

the various cases. App. 6a.

5 Pan Am’s insurers guaranteed the payment of any judgment

rendered against Pan Am. App. 48a-50a.

4

was clear that many plaintiffs would sue the United

States because of the role that its air traffic controllers

had played in the crash. Because the United States can-

not appear in foreign courts,® the United States’ status

as a nascent party defendant in the district court posed

the issue whether, as a prerequisite to invocation of the

doctrine of forum non conveniens, all defendants must be

amenable to process in the foreign court that is proposed

as the alternative forum.

In its motion, Pan Am advised the District Court that

the conditions of dismissal that the carrier proposed were

calculated to make the United States a superfluous de-

fendant because Pan Am would not contest liability,

would waive the various treaty limits on the amount of

damages it would pay,’ and would fully satisfy any judg-

ment by a foreign court. App. 5a & 41a.

The District Court denied Pan Am’s motion without

comment. Before the motion was filed, however, the trial

judge had said that he would deny any forthcoming mo-

tion because the United States is a party and the crash

occurred in New Orleans. App. 4a-5a. Pan Am attempted

to present the forum non conveniens issue to the ap-

pellate court before trial of any foreign case by moving

for interiocutory review pursuant to 28 U.S.C. § 1292(b),

which was denied, by petitioning the Court of Appeals

for a writ of mandamus, which was denied, and by re-

6 In the Federal Tort Claims Act, Congress permitted tort suits

against the Government, but in doing so, it gave “exclusive juris-

diction” over such suits to the United States District Courts. 28

U.S.C. § 1846(b).

7 Unlike the liability of air carriers, the United States’ liability

is not limited by the Warsaw Convention or the Montreal Agree-

ment. See Part II, infra. Thus, Pan Am’s proposed waiver of these

limits would have expanded its own liability to match, or exceed, the

extent of the potential liability of the United States.

2)

questing consideration en banc, which was also denied.

App. 5a.

As the overall litigation proceeded, various plaintiffs

either tried their damages claims or settled those claims.*

The respondents to the instant petition—Ernesto Pampin

Lopez and Luis and Susana Trivelloni-Lorenzi—were the

first foreign plaintiffs to try damages claims arising from

this crash. In advance of their trials, the district court

ruled that Pan Am could not invoke the Warsaw Conven-

tion and Montreal Agreement, both of which applied to

these passengers, to limit its liability to $75,000 per

decedent. This ruling rested on the fact that the tickets

issued to the passengers provided notice of the limitation

in 9-point type, rather than 10-point type. App. 6a-7a.

When these two cases were tried, commencing on Au-

gust 27, 1984, Pan Am and the United States limited

their defense to cross-examination of plaintiffs and their

witnesses. Defendants claimed that they were unable to

call witnesses_and adduce documentary evidence relating

to plaintiffs’ damages because of their inability to take

discovery in Uruguay, the domicile of plaintiffs and their

decedents. At the conclusion of the trial, the jury

awarded the Lopez family $516,853.89 and the Trivelloni

family, $203,530.00. Pan Am and the United States ap-

pealed. App. 7a.

2. Relevant Rulings of the Panel and the En Bane

Court. On appeal, Pan Am contended, inter alia, that the

District Court should have granted its motion to dismiss

on the ground of forum non conveniens, and, alterna-

tively, that the District Court should not have lifted the

ceiling on liability if the international cases were to be

tried in the United States. A panel of the Fifth Circuit

affirmed both rulings of the District Court, and the Fifth

8 Pan Am did not contest its liability for the accident in any of

the cases and thus all cases arising from this crash to date have

been limited to issues of damages.

6

Circuit en bane separately reviewed the forum non con-

veniens ruling.

a. The Ceiling on Damages in International Carriage.

In deciding whether the usual ceiling on an air carrier’s

liability for international carriage should apply to the

New Orleans disaster, the court looked to the Second

Circuit’s decision in In re Air Crash Disaster at War-

saw, Poland, (“LOT”) 705 F.2d 85, cert. denied, 464

U.S. 845 (1983). App. 7a n.8 & 91a. In LOT, the Second

Circuit held that an air carrier must issue a passenger

ticket that provides adequate notice of the ceiling placed

on its liability by the Warsaw Convention and the Mont-

real Agreement. The court further held that any notice

given in type smaller than 10-point type is per se inade-

quate.

In the instant case, the panel “accept[ed] and

adopt{ed]” the reasoning of the Second Circuit and ruled

that Pan Am could not invoke the limit on liability be-

cause the tickets—which were issued by an Argentine

airline—-provided notice in 9-point type rather than 10-

point type. App. 91a. The en bane court cited LOT and

reinstated this portion of the panel’s decision. App. 7a

n.8 & 46a.

b. Forum Non Conveniens. The court of appeals,

sitting en banc, held that there was no occasion for the

district court to weigh the convenience of trying plain-

tiffs’ damage claims in decedents’ homeland (Uruguay)

or to weigh the public interest factors bearing on the

location of such a trial. No balancing of conveniences

was permitted, in the court’s view, because Pan Am had

failed to meet the threshold requirement for invoking the

doctrine of forum non conveniens: namely, Pan Am

failed to demonstrate that Uruguay was an “available

and adequate foreign forum’ for the trial of the Uru-

guayan plaintiffs’ claims. App. 34a, 42a. See Gulf Oil

Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947), and Piper

7

Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981). In

the Court’s view, Uruguay failed to qualify as an ade-

quate available forum because one of the defendants, the

United States, could not appear in that forum. App. 42a.

The en bane court’s ruling rests on the proposition that

the “alternative forum” requirement, established in Gil-

bert and Reyno, cannot be met unless all defendants will

appear in the proposed alternative forum. The en banc

court announced this rule at least five times.°®

REASONS FOR GRANTING THE WRIT

I. The Court Should Review The Fifth Circuit’s Decision

Because It Establishes An Important And Inflexible

Prerequisite To The Invocation Of The Doctrine Of

Forum Non Conveniens, It Significantly Reduces The

Utility Of That Doctrine In Litigation Arising From

Class And Mass Disasters, And It Conflicts With A

Decision Of The Sixth Circuit.

The court of appeals has added significantly to the

threshold requirements that must be met in order to in-

voke the doctrine of forum non conveniens and corre-

spondingly has reduced the occasions when district courts

may exercise their discretion in accordance with the prin-

eiples of forum non conveniens. The threshold require-

ment, as developed by the court of appeals, prevents in-

vocation of the doctrine of forum non conveniens in all

cases where the plaintiff names the United States as a

®The en banc court said: (1) “[{T]he doctrine of forum non

conveniens presupposes the existence of at least two forums in

which all defendants are amenable to process.” (App. 3la; emphasis

added); (2) “the moving defendant must establish that an adequate

and available forum exists as to all defendants if there are several.”

(App. 33a; emphasis added); (3) “[a] foreign forum is available

when the entire case and all parties can come within the jurisdic-

tion of that forum.” (App. 34a; emphasis added); (4) this case was

properly tried in the United States “because no other forum could

entertain the plaintiffs’ actions against all of the defendants.”

(App. 40a; emphasis added); and (5) Pan Am’s proposed condi-

tions for dismissal “simply fail to make all defendants available to

plaintiffs in a Uruguayan forum.” (App. 42a.)

8

co-defendant or adds a private co-defendant who cannot

or will not appear abroad. The restrictive effects of this

ruling, moreover, are likely to be greatest in those types

of litigation that heavily burden our courts—mass disas-

ter litigation arising from a single incident such as an

air crash, and class disaster litigation arising from vari-

ous exposures to products or substances that may have

harmful effects. This Court should review the decision

below in order to determine whether the Fifth Circuit’s

threshold requirement is an appropriate extension of Gil-

bert and Reyno and in order to resolve the conflict that

preseitly exists between the Fifth and the Sixth Circuits.

Neither Gilbert nor Reyno confronted the problem pre-

sented here—whether the doctrine of forum non con-

veniens may be invoked when one of the co-defendants

who are jointly and severally liable cannot appear in a

foreign forum that is otherwise wholly suitable and con-

venient for trying the plaintiff's damages claims. In

Reyno, the Court said the “central focus” of the doctrine

of forum non conveniens inquiry is “convenience,” and

the guiding principle of the doctrine is “flexibility.” 454

U.S. at 249-50. If the Fifth Circuit had concluded that

the doctrine of forum non conveniens might be invoked

by a private defendant in cases where the United States

is also a defendant, a trial court would weigh, inter alia,

the effect of the absence of one defendant on the issues

that might be tried in a foreign forum. The Fifth Cir-

cuit, however, believed that the weighing process was

foreclosed by statements in Gilbert and Reyno: “In all

cases in which the doctrine of forum non conveniens

comes into play, it presupposes at least two forums in

which the defendant is amenable to process,” Gilbert, 330

U.S. at 506-07; and “[ol]rdinarily, this requirement will

be satisfied when the defendant is ‘amenable to process’

in the other jurisdiction.” Reyno, 454 U.S. at 254 n.22.

Thus, the court below concluded that plaintiffs’ homeland

9

was not an adequate alternative forum solely because the

United States was not prepared to appear in the Uru-

guayan courts.’°

The en banc ruling, we suggest, is not compelled by

Gilbert, which involved a single defendant, or by Reyno,

where both defendants agreed to appear in Scotland; and

the ruling is not consonant with the usual understanding

of adequate forums.'' But most important, in expanding

the scope of the threshold requirements established in

Gilbert, the Fifth Circuit has correspondingly reduced

the occasions when the principles or criteria of forum non

conveniens may be considered by federal courts.

The Fifth Circuit’s ruling will deprive private defend-

ants of the protections of forum non conveniens whenever

the plaintiff adds the United States as a co-defendant.

This is an important liznitation because the United States

has broad exposure to tort liability—especially in the

field of aviation--so long as it is sued in a United States

1” In contrast, courts have not treated the amenability of poten-

tial third-party defendants to suit abroad as a per se or threshold

matter, but rather as a circumstance to be weighed in determining

the relative conveniences and inconveniences of trial abroad. Reyno,

454 U.S. at 259; Pain v. United Technologies Corp., 637 F.2d 775,

790-91 (D.C. Cir. 1980); Fitzgerald v. Texaco, Inc., 521 F.2d 448,

453 (2d Cir. 1975), cert. denied, 423 U.S. 1052 (1976); De Melo

Vv. Lederle Laboratories, 801 F.2d 1058, 1063 (8th Cir. 1986). One

might reasonably conclude that it is no more important for the

plaintiff to have all defendants present in a single forum than it is

for a defendant to have all third-party defendants present in a

single forum.

11 Federal and state courts routinely adjudicate a plaintiff’s claims

even though some of the tortfeasors who are jointly and severally

liable are not before the court. Ordinarily, since a plaintiff can

obtain full relief from either of two tortfeasors, neither one is

indispensable to the litigation, and the litigation can proceed against

one or more of them. E.g., Restatement (Second) of Torts § 882 at

328 (1977); Fed. R. Civ. P. Rules 19 and 21.

10

District Court."* The federal rules of civil procedure pro-

vide for liberal joinder of defendants, including the

United States; prevailing tort law generally recognizes

that two or more parties may be held responsible for a

wrorgful death or personal injury; and the Congress has

waived sovereign immunity for tortious conduct by the

United States, but that waiver only extends to suits

brought in the United States District Courts.’* See 28

U.S.C. § 1346; the Federal Tort Claims Act, 28 U.S.C.

$$ 1346, 2674, 2679-80 (general tort liability) ; and Suits

in Admiralty Act, 46 U.S.C. app. §§ 741, 742 (Supp. II

1985) (liability for damages involving vessels and

cargo) .**

Similarly, the Fifth Circuit’s ruling will deprive de-

fendants of the protection of forum non conveniens when-

12 For example, for fiscal years 1981-1985. nearly 1,000 complaints

were filed in federal district courts against the United States aris-

ing from 179 different aircraft accidents, with claims exceeding

$25 billion. In addition, during the same period, 1,690 administra-

tive claims were filed with the Federal Aviation Administration

seeking more than $43 billion. In 1985, the United States paid over

$33 million to settle pending litigation or to satisfy adverse judg-

ments, and the FAA paid a total of $6,691,000 to settle $105 million

in claims. Dilk, Aviation Tort Litigation Against the United

States—Judicial Inroads on the Pilot-in-Command Concept, 52

J. Air. L. & Com. 797, 862 (1987).

13 The Fifth Circuit erroneously concluded (App. 42a n.37) that

the United States consented to appear abroad in Friends For All

Children v. Lockheed Aircraft Corporation, 717 F.2d 602, 604

(D.C. Cir. 1983). The decision does not support that reading and

the record in the case shows that (a) only Lockheed had agreed to

appear in foreign courts; (b) plaintiffs had not sued the United

States; it was simply a third-party defendant that had been sued

by Lockheed; and (c) the United States had already agreed to a

formula for indemnifying Lockheed.

14 For other statutes creating liability for the United States, see

Public Vessels Act, 46 U.S.C. app. §§ 781-782 (liability for damage

caused by a public vessel); and 42 U.S.C. §§ 2211, 2212 (liability

for radiation from nuclear powered vessels and nuclear testing).

ll

ever a plaintiff adds a private defendant who cannot or

will not appear abroad. In many cases there may be

sound reasons why one or more private defendants cannot

or will not appear abroad. For example, an American

manufacturing corporation probably will not agree to ap-

pear in the courts of Iran to defend a products liability

claim arising from an air crash in the Middle East."

Likewise, present and past employees of a corporate de-

fendant—e.g., the pilot of an airline, the director of test-

ing for a pharmaceutical company, or an engineer for-

merly employed by Union Carbide—may ostensibly share

joint and several liability with their corporate employer

for countless injuries and loss of life, but the individuals

may reasonably decline to defend in a foreign court since

their resources are so limited that they are effectively

judgment proof in any forum."*

Restrictions on the invocation of the doctrine of forum

non conveniens also serve to deprive district courts of an

important tool for managing air disaster litigation and

other mass and class disasters involving international

1 See In re Air Crash Disaster at Riyadh Airport, Saudi Arabia,

540 F. Supp. 1141 (D.D.C. 1982). Plaintiffs brought suit in the

District of Columbia. They were residents mainly of Iran, Saudi

Arabia and Pakistan (id. at 1149 n.19), who were flying to Mecca in

an airplane that was operated by defendant Saudi Arabian Airlines,

maintained by defendant Trans World Airways, and manufactured

by defendant Lockheed Aircraft Corporation. The order of dis-

missal provided that only one of the three defendants would be

required to appear in any given foreign forum provided that the

single defendant would pay all of plaintiffs’ damages awarded by

that forum.

1®Compare Watson v. Merrell Dow Pharmaceuticals, Inc., 769

F.2d 354 (6th Cir. 1985) (suit in Ohio against two individual em-

ployees of corporate defendant as well as against corporate de-

fendant) ; Moorhead v. Mitsubishi Aircraft International, Inc., 639

F. Supp. 385 (E.D. Tex. 1986), aff'd in part, rev'd in part, 828

F.2d 278 (5th Cir. 1987) (suit against pilot’s estate, United States,

and Mitsubishi).

12

commerce. In such cases, the plaintiffs’ liability claims

generally present common issues of law and fact, but

their damages claims generally present highly discrete

issues of fact that are specific to each plaintiff. Thus,

discovery and trial of liability issues may be done con-

veniently in a single forum, whereas discovery and trial

of damages issues may be done more conveniently in other

forums. Relying on the doctrine of forum non conveniens,

district court judges frequently remit foreign plaintiffs

to their homelands or to another forum for trial of their

damages claims when the issue of liability has been re-

moved from the litigation by stipulation or by a determi-

nation of iiability in the district court.'"’ In such in-

stances, the doctrine of forum non conveniens is the inter-

national analogue of 28 U.S.C. § 1407, which permits the

17 Bouvy-Loggers Vv. Pan American World Airways, Inc., 15 Av.

Cas. (CCH) 17,153, 17,154 (S.D.N.Y. 1978) (dismissal after lia-

bility issues stipulated); Gilchrist v. Trans Canada Air Lines, 27

A.D.2d 524, 275 N.Y.S.2d 394, 395 (1966) (liability would be stipu-

lated if case were sent to Canada; dismissal granted although two

defendants would not go); Chhawchharia Vv. The Boeing Co., 657

F. Supp. 1157 (S.D.N.Y. 1987) (liability issues stipulated); Jn re

Disaster at Riyadh Airport, Saudi Arabia, 540 F. Supp. 1141, 1147,

1155 (D.D.C. 1982) (same); Jennings Vv. The Boeing Co., 660

F. Supp. 796 (E.D. Pa. 1987), amended June 23, 1987 (order avail-

able on WESTLAW and in Avi. Lit. Rep. (Andrews) 7320 (July 153,

1987) ) (same); Myers v. The Boeing Co., No. 86-2-14507-9 (Wash.

Super. Ct. Sept. 10, 1987) (reprinted in Avi. Lit. Rep. (Andrews)

7621 (Sept. 28, 1987)) (initially court retained liability phase, but

after liability was stipulated, the court dismissed the damages

phase). Occasionally, the federal courts may remit plaintiffs to the

courts of another country for the trial of both the liability and dam-

ages issues. E.g., Reyno, supra (dismissal for trial in United

Kingdom).

Dismissals may be conditioned on defendants’ agreement, inter

alia, to appear, waive the statute of limitations, and produce wit-

nesses or documents. See the above cases and Pain v. United Tech-

nologies Corp., 637 F.2d at 795; In re Union Carbide Corp. Gas

Plant Disaster, 809 F.2d 195 (2nd Cir. 1987), cert. denied, 108

S. Ct. 199 (1987) (dismissal for trial in India).

13

federal judiciary to manage complex multi-district litiga-

tion within the United States.”

Finally, the Fifth Circuit's ruling is flatly inconsistent

with the Sixth Circuit’s decision in Watson v. Merrell

Dow Pharmaceuticals, Inc., 769 F.2d 354 (6th Cir. 1985).

In that litigation, the foreign plaintiffs sued the pharma-

ceutical company, Merrell, for products liability and

added two of its employees as defendants—a supervisor

of testing and a medical director. When the pharmaceu-

tical company moved to dismiss the foreign plaintiffs’

claims, it was not clear that the proposed foreign court

would have jurisdiction over the individual defendants,

and the individuals had not consented to appear in a for-

eign court. /d. at 356-57. The district court granted the

company’s motion to dismiss as to all defendants because

Merrell was the “ ‘primary defendant,’” and the plain-

tiffs would not be deprived “ ‘of a meaningful opportunity

to pursue their claims’” even without the indivicual de-

fendants appearing abroad. 769 F.2d at 357. The Sixth

Circuit affirmed the dismissal of Merrell. Thus, in con-

trast to the instant decision, the Sixth Circuit holds that

the doctrine of forum non conveniens may be invoked

even if some of the defendants are not amenable to the

jurisdiction of the foreign court.

The Sixth Circuit's decision, however, has its own prob-

lem. The court of appeals determined that the claims

against the individuals should not be dismissed. Instead,

See In re Air Crash Disaster at Tenerife, Canary Islands on

March 27, 1977, 461 F. Supp. 671 (J.P.M.L. 1978) (remanding

cases to transferee courts after defendants stipulated liability) ;

In re Air Crash Disaster at Pago Pago, American Samoa, on Jan.

30, 1974, 394 F. Supp. 799, 800 (J.P.M.L. 1975) (denying transfer

with respect to an action in which the defendant airline stipulated

to liability); In re Richardson-Merrell, Inc., 606 F. Supp. 715

(J.P.M.L. 1985) (remanding plaintiffs not participating in con-

solidated liability trial to their courts of origin after verdict for

defendant in the consolidated trial).

14

the court remanded the actions against the individual

defendants to the district court for trial. The Sixth Cir-

cuit also criticized the district court for considering

whether the individuals were “primary” defendants and

whether plaintiffs would be deprived of a meaningful op-

portunity to pursue their claims if the individuals did

not appear abroad. Thus, the court of appeals said that

the district court had engaged in “impermissible inter-

mingling of the threshold criteria with the subsequent

balancing test.” ”

In sum, review by this Court is warranted. The Fifth

Circuit's decision conflicts with thé Sixth Circuit's ruling

in Merrell, and establishes an inflexible prerequisite that

curtails the power of district courts to remit parties to

the most convenient forum when, for example, the plain-

tiffs name the United States or an impecunious individual

as a co-defendant. The lower court's ruling, moreover,

will have its greatest and most unfortunate effects in

class and mass disaster litigation where district courts

need broad and flexible authority to manage the cases

before them.

Il. The Court Should Review The Fifth Circuit's Decision

Because It Adopts A Construction Of The Warsaw

Convention That Has Been Rejected By The District

Of Columbia Circuit And The Supreme Court Of

Canada.

The decision below also should be reviewed in order to

place a uniform reading on Article 3(2) of the Warsaw

Convention and related provisions of the Montreal Agree-

There is no reported decision as to the steps taken on remand.

It was open to the individual defendants to agree to appear and

defend in Scotland, to submit to trial in the district court, or to

move for a stay of their trials pending disposition of the more

convenient trial in the United Kingdom. See, ¢.g., Restatement

(Second) of Conflict of Laws § 86 comment b at 259 (1969) (where

an action is pending in a foreign jurisdiction and it is clear that

plaintiff can secure all the relief he is entitled to there, a United

States court can grant a stay of the second action pending the

outcome of the action abroad).

15

ment.” Under Article 3, the air carrier must deliver to

the passenger a ticket advising the passenger of the limi-

tation. App. 108a. Pursuant to the Montreal Agreement,

a private agreement reached among air carriers in 1966,

the advice on the ticket is to be printed in 10-point type.

App. 112a.

Foreign carriers regularly issue tickets containing the

requisite advice about the limit on liability, but those

tickets often fail to provide such advice in 10-point type.*"

United States as well as foreign courts are thus repeat-

edly confronted with the question whether the limitation

on a carrier’s liability is extinguished because the mes-

sage on the passenger’s ticket is printed in less than 10-

point type.

In resolving this question, the courts of appeals have

reached conflicting results based on conflicting construc-

tions of Article 3(2) of the Warsaw Convention:

“The absence, irregularity, or loss of the passenger

ticket shall not affect the existence or the validity of

the contract of transportation, which shall none the

less be subject to the rules of this convention. Never-

theless, if the carrier accepts a passenger without a

passenger ticket having been delivered he shall not

** The Warsaw Convention limits a carrier's liability for death

or injury of a passenger to $8,300. The Montre:! Agreement raises

the limit to $75,000.

*! See Lisi v. Alitalia-Linee Acree Italiane, S.p.A., 370 F.2d 508

(2d Cir. 1966), aff'd by an equally divided court, 390 U.S. 455

(1968) ; In re Air Crash Disaster at Warsaw, Poland, 705 F.2d 85

(2d Cir.), cert. denied, 464 U.S. 845 (1983) (LOT); In re: Korean

Air Lines Disaster of September 1, 1983, No. 85-5982, Slip op. at 11

(D.C. Cir. Sept. 25, 1987) (“KAL"); In re Air Crash Disaster

Near New Orleans, App. 91a and 102a (tickets issued by Aerolineas

Argentines); Ludecke v. Canadian Pacific Airlines Ltd., 98 D.L.R.

Sd 52, 15 Av. Cas. (CCH) 17,687 (Can. 1979); Milliken Trust Co.

V. Iberia Lineas Aereas de Espagna, S.A., 11 Av. Cas. (CCH)

7,331 (N.Y. Sup. Ct. 1969), aff'd without opinion, 36 A.D.2d 582,

317 N.Y.S.2d 734 (1971); Eck v. United Arad Airlines, Ine., 12 Avy.

Cas. (CCH) 18,427 (N.Y. Sup. Ct. 1974).

16

be entitled to avail himself of those provisions of this

convention which exclude or limit his liability.” App.

109a.

A divided panel of the Second Circuit held in List that

placing a “Lilliputian” and illegible statement of limited

liability on the passenger’s ticket is tantamount to fail-

ing to “deliver” a ticket as required by Article 3 of the

Convention.*? Lisi v. Alitalia-Linee Aeree Italiane, S.p.A..,

370 F.2d 508, 514 (2d Cir. 1966) (Kaufman and Lum-

bard, J.J., with Moore, J., dissenting). Since no ticket

had been ‘delivered,’ within the Second Circuit’s mean-

ing of that term, the limitation on the carrier’s liability

was extinguished. This Court granted certiorari to re-

view Lisi, but ultimately affirmed without opinion because

the Court was equally divided. 390 U.S. 455 (1968).

In LOT, the Second Cireuit revisited the issue in light

of the Montreal Agreement, which took effect in 1966.

The Second Circuit held that “although [the Montreal

Agreement] is actually a private agreement among car-

riers, it effectively modifies the Convention.” 705 F.2d at

88. The statement required under Article 3(1) (e) of the

Convention, as “effectively modifie[d]”’ must be in 10-point

type. Id. at 89. Thus, in LOT the limit on the carrier’s

liability was extinguished because 8.5-point type was

used. 705 F.2d at 86 & 91.

In the instant case, the Fifth Circuit, without sub-

stantive discussion, adopted the Second Circuit’s ruling

in LOT. The Fifth Circuit held that petitioner Pan Am

could not invoke the limitation on its lability because

the tickets, which were issued by Aerolineas Argentinas,

were printed in 9-point type. App. 7a n.8, 46a & 91a.

22 The court relied on prior cases holding that poorly timed de-

livery (e.g., after the passenger was on board or while boarding)

was not proper delivery under Article 3(2). Mertens v. Flying

Tiger Line, Inc., 341 F.2d 851, 856 (2d Cir.), cert. denied, 382 U.S.

816 (1965); Warren v. Flying Tiger Line, Inc., 352 F.2d 494, 498

(9th Cir. 1965).

17

The decisions of the Second and Fifth Circuits fail to

address the meaning of the first sentence of Article 3(2),

which provides that “The absence, irregularity, or loss of

the passenger ticket shall not affect the existence or the

validity of the contract of transportation, which shall

none the less be subject to the rules of this convention.”

(Emphasis added.) Relying on that sentence, the United

States Court of Appeals for the District of Columbia

Circuit * has held that the limitation on the carrier’s

liability is not extinguished when the statement on the

ticket is printed in type smaller than 10-point. Jn re:

Korean Air Lines Disaster of September 1, 1983, No. 85-

5982, Slip op. at 2, 4 (D.C. Cir. Sept. 25, 1987)

(“KAT”) .24

23 The District of Columbia Circuit “adoptfed] as our opinion

the comprehensive July 25, 1985 Memorandum of the District

Court” (slip op. at 4). The adopted decision of the district court

is appended to the KAL slip opinion and is printed at 19 Av. Cas.

(CCH) 17,584 (1985).

*4The District of Columbia Circuit also traversed the Second

Circuit’s conclusion that the Montreal Agreement “effectively modi-

fies” the Warsaw Convention, making it require 10-point type. In

this regard, the District of Columbia Circuit said that the Montreal

Agreement simply “supplemented the Article 3 requirements that

a statement be included in the passenger ticket by providing spe-

cifics to be provided by carriers stopping in the United States... .”

KAL slip op. app. at 27. (Emphasis added.) Under the Warsaw

Convention, “it has been generally understood that in exchange for

virtual strict liability against air carriers, international passengers

are limited in their recovery.” Jd. at 26. Although the Montreal

Agreement raised the liability limitation under Article 22 (App.

109a) and waived the air carrier’s defenses under Article 20 (Id.),

“it did not alter the quid pro quo by linking Articles 22 and 20 with

Article 3.” Jd. at 27. Moreover, because the signatories to the

Agreement were the air carriers and not the contracting parties to

the Warsaw Convention, the District of Columbia Circuit held that

they were incapable of altering or amending the Convention, which

they apparently had not wanted to do in any event. KAL slip op.

app. at 27-28.

18

The District of Columbia Circuit was persuaded by a

decision of the Canadian Supreme Court which rejects

the so-called “American” rule. In Ludecke v. Canadian

Pacific Airlines Ltd., 98 D.L.R. 3d 52, 15 Av. Cas.

(CCH) 17,687 (Can. 1979), the Supreme Court of Can-

ada held, inter alia, that under the Warsaw Convention:

“the words of Article 3(2) are plain and can admit

of no misunderstanding. The absence, irregularity,

or loss of a passenger ticket will not affect the ex-

~ istence or the validity of the contract of carriage.

The benefit of the limitation will be lost only where

no ticket is delivered. The American cases referred

to above which hold that delivery of a ticket with an

irregularity, that is, a statement as required by Arti-

ele [8]1(e) which is illegible, amounts to no delivery

of a ticket, ignore this plain language and fail to

give effect to a precise statement of the law.” 15

Av. Cas. (CCH) at 17,690.”

Thus, as matters stand there is an intra-national and

international split in authority interpreting Article 3(2)

of the Warsaw Convention and the Montreal Agreement.

The decision below and the decisions of the Second Cir-

cuit have been rejected by the Supreme Court of Canada

and the District of Columbia Circuit because they ignore

the first sentence in Article 3(2) and, in Judge Moore’s

words, amount to “judicial treaty-making.” Lisi, 370

F.2d at 515; see also KAL slip op. app. at 28.

As a matter of United States law, the split among the

circuits is worthy of review because there is a special

need to ensure uniformity of law in air disaster cases.

Air disasters usually produce damages suits in various

federal circuits, and it is most unfortunate if not un-

25 See G. Miller, Liability in International Air Transport 87-88

(1977) (discussing French case predating Ludecke and taking the

position, also taken in Ludecke, that under the Warsaw Convention,

providing notice is not a prerequisite to obtaining the liability

limitation).

19

acceptable when plaintiffs and defendants who are in-

volved in the same accident or similar accidents are

treated vastly different because two courts of appeals

place different readings on a single treaty provision.

Such considerations led the District of Columbia Circuit

to state: “the proper interpretation of the Convention

and Agreement... [is a] matter[] in need of definitive

resolution for our national court system.” KAL slip op.

at 11.

The international split in authority adds to the need

for review. When lower courts of the United States con-

strue an international treaty in a manner that is squarely

rejected by respected tribunals in other nations, the in-

terest in fostering and preserving a uniform body of

international law depends on this Court. One explicit

purpose of this multilateral treaty is to regulate in “a

uniform manner the conditions of international trans-

portation by air in respect of the documents used for

such transportation and of the liability of the carrier. .. .”

App. 107a. That purpose remains unsatisfied so long as

the courts of appeals disagree among themselves and dis-

agree with the Supreme Court of Canada as to the out-

come of the issue presented here.*®

26In petitioner’s view, each of the issues presented here is

worthy of review. If certiorari were denied on the forum non

conveniens issue, the Warsaw issue would remain as a freestand-

ing issue. If certiorari is granted on the forum non conveniens

issue and the decision below is affirmed, or if the decision is re-

versed but the lower courts determine that the case was properly

tried here, the Warsaw issue remains unaffected. If the Court

grants certiorari on the forum non conveniens issue and reverses,

and if the cases are ultimately dismissed to a foreign forum, Pan

Am has agreed to waive the Warsaw liability limitation and the

issue would then drop from the case. At that time and in those

circumstances, the Warsaw Convention issue would be moot in

the instant cases (although not in numerous others arising from

this accident). The possibility of future mootness does not deprive

the Court of the opportunity to resolve what is now a live con-

20

CONCLUSION

A writ of certiorari should be issued to review the

judgment of the United States Court of Appeals for the

Fifth Circuit.

Respectfully submitted,

ROBERT E. KERRIGAN, JR. RICHARD M. SHARP

MARC J. YELLIN (Counsel of Record)

DARRELL K. CHERRY CYNTHIA W. SIMON

DEUTSCH, KERRIGAN SHEA & GARDNER

AND STILES 1800 Massachusetts Ave., N.W.

755 Magazine Street Washington, D.C. 20036

New Orleans, LA 70130 (202) 828-2000

(504) 581-5141

Counsel for Petitioner Pan American World Airways, Inc.

November 6, 1987

troversy, however. United States v. Sharpe, 470 U.S. 675, 681-82

n.2, 105 S.Ct. 1568, 1573 n.2 (1985) (“had we thought that we

should decline to reach every constitutional issue that might be-

come moot, we would have denied certiorari.”); Washington V.

Washington State Commercial Passenger Fishing Vessel Associa-

tion, 443 U.S. 658, 692-93 n.382 (1979).