Appendix — Pan American World Airways, Inc. v. Pampin Lopez

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Ne, qnesssm * JOSEPH F. SPANIOL, JR.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

PAN AMERICAN WORLD AIRWAYS, INC.,

Petitioner,

V.

ERNESTO SERIO PAMPIN LOPEZ, Individually and as

Administrator of the Estate of his Deceased

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

Respondents.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

EDITOR'S NOTE

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APPENDIX TABLE OF CONTENTS

Page

En Banc opinion of the court of appeals ________- la

Panel opinion of the court of appeals ___________ Sla

Judgment of the district court of August 30, 1984,

Se EV FO CEMENUe panwncsscaskecunaukaoecccn Oe

Judgment of the district court of August 30, 1984,

eee Se SET von ancat ae cuancwnnabiaek 100a

Minute Entry of the district court of May 21, 1984,

in Civil Nos. 82-8475 & 82-3476 _______________~- 102a

Judgment of the court of appeals in Trivelloni-

bovenm, NO. 64-3602 22 nn cc enn wees 103a

Judgment of the court of appeals in Pampin Lopez,

Se, Eb co ca ana nuee enon ween fey So Se eM 105a

Pertinent excerpts of the Warsaw Convention____ 107a

2me montreal Agreement ....................- llla

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Nos. 84-3832, 84-2833

IN RE AIR CRASH DISASTER NEAR

NEW ORLEANS, LOUISIANA ON JULY 9, 1982

LuIs ALBERTO TRIVELLONI-LORENZI, and

SUSANNA ELECTRA TRIVELLONI-LORENZI,

Plaintijfs-A ppellees.

V.

PAN AMERICAN WORLD AIRWAYS, INC., et al.,

Defendants-A ppellants.

ERNESTO SERIO PAMPIN Lopez, Individually and

As Administrator ef the Estate of

His Deceased Mother Sara E. Lopez DE PAMPIN,

Plaintiff-A ppellee,

v.

PAN AMERICAN AIRWAYS, INC., and

UNIt#D STATES OF AMERICA, et al.,

Defendants-A ppellants.

July 21, 1987

Appeals from the United States District Court

for the Eastern District of Louisiana

2a

Deutsch, Kerrigan & Stiles, Francis G. Weller, Fred-

erick R. Bott, Darrell K. Cherry, Robert E. Kerrigan,

Jr., New Orleans, La., for defendants-appellants.

Stephen B. Murray, Romualdo Gonzalez, Patricia R.

Murray, New Orleans, La., for plaintiffs-appellees.

Before CLARK, Chief Judge, GEE, RUBIN, GARZA,

REAVLEY, POLITZ, RANDALL, JOHNSON, WIL-

LIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,

HILL, and JONES, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge: *

These consolidated cases arise from the crash shortly

after takeoff of Pan American World Airways Flight

759 near New Orleans, Louisiana. The plaintiffs are for-

eign citizens who sought recompense for their injuries

in a Louisiana federal court. Pan American World Air-

ways, Inc. (Pan American) invoked the doctrine of

forum non conveniens, insisting that the plaintiffs’ home

country of Uruguay is the proper forum for the resolu-

tion of plaintiffs’ claims. We took these cases en banc

to decide whether the district court properly applied the

doctrine of forum non conveniens. For the reasons stated

below, we hold the plaintiffs’ causes of action were prop-

erly tried in a Louisiana federal court.

i.

On July 9, 1982, Pan American Flight 759 crashed in

Kenner, Louisiana, shortly after takeoff from Moisant

International Airport. All 154 persons aboard the plane

perished. Eyewitness accounts established that seconds

after takeoff Flight 759 suddenly descended and pitched

to one side. The plane’s wing struck a tree causing the

wings to swing perpendicular to the ground. Within sec-

onds the plane crashed exploding on impact. A later crash

* Unless otherwise indicated this opinion is joined by all members

of the court.

3a

investigation concluded that a microburst wind shear was

a contributing cause to the accident.

Within weeks of this tragic accident, personal repre-

sentatives of many of the deceased passengers filed

wrongful death suits and survival actions in various

United States district courts.’ On August 12, 1982, plain-

tiffs filed their suits in the United States District Court

for the Eastern District of Louisiana against Pan Ameri-

can, the Boeing Company (manufacturer of the air-

plane),-and the New Orleans Aviation Board (operator

of Moisant International Airport). Plaintiffs in these

consolidated cases are citizens and residents of Uruguay,

and are heirs of passengers killed in the crash of Flight

759. Luis Alberto and Susanna Electra Trivelloni-

Lorenzi (Trivelloni children) brought suit for the wrong-

ful death and as survivors of their parents Luis Alberto

and Electra Iris Trivelloni who perished in the crash.

Ernesto Serio Pampin Lopez (Pampin) brought suit for

the wrongful death and as survivor of his mother Sara

Lopez de Pampin, his sister Amparo Pampin Lopez, and

his aunt Irma Lopez de Alvarez who perished in the

crash. All of the decedents were citizens and residents of

Uruguay who were on vacation in the United States.

1 Of the numerous actions arising from this crash, approximately

52 were filed on behalf of 42 passengers of Flight 759 who were

foreign nationals. Most of these actions were brought in California

and Florida. On October 13, 1982, the Judicial Panel on Multi-

district Litigation transferred all federal actions arising out of

this accident to the Eastern District of Louisiana for pretrial

proceedings.

Pretrial proceedings in these cases were completed in late 1984,

and on January 9, 1985, the Multi-district Litigation Panel re-

mitted the cases to the courts in which they were originally filed

for further proceedings.

* The deceased passengers had purchased their round trip tickets

in Montevideo, Uruguay. Their tickets provided for a flight from

Montevideo to the United States, flights within the United States,

4a

Plaintiffs also intended to join the United States as a

defendant, but they had to exhaust their administrative

remedies under the Federal Tort Claims Acts (FTCA),

28 U.S.C. § 2671 et seq., before doing so. On April 29,

1983, plaintiffs commenced their administrative claims

against the United States. At the time plaintiffs initiated

their administrative claims against the United States,

they were not aware that on January 26, 1983, Pan

American had indicated to the district court that Pan

American and the United States were prepared to stipu-

late to liability. Plaintiffs did not have access to the in-

formation because it had been placed in a sealed minute

entry. The information was not disclosed to plaintiffs

until mid-summer of 1983, over one year after the crash.

At a pretrial hearing on July 29, 1983, Pan American

advised the district court and plaintiffs that it intended

to move to dismiss plaintiffs’ cases on the ground of

forum non conveniens. Pan American’s counsel stated

that “we’re going to take the position that if liability is

not an issue... that the damage issues in the foreign

[plaintiffs’] cases belong in the countries from which

they came. ...” The district court instructed Pan Amer-

ican to file its motion to dismiss for forum non con-

veniens, but in an effort to expedite matters, the court

informed Pan American that its motion would be denied.

Recognizing that all the parties knew the United States

was to be joined as a defendant after the administrative

process was completed and anticipating such joinder, the

district court stated:

The government is a defendant: the government is

going to remain a defendant. I can tell you how I’m

going to rule on the motion, so we can go on to the

next issue. Really, I’m going to rule that you have

no right to that transfer, and I’m going to rule that

and then a return flight to Montevideo. When Flight 759 crashed

the decedents were en route to Las Vegas, Nevada, prior to return-

ing home.

5a

that issue hanging there is not going to stop me

from ruling on it, that I’m not going to do it, and

you can sign the stipulations. We're going to go to

trial here on damages, with the government as a de-

fendant and with the crash happening here. ... The

crash was here, and the United States is a party.

On August 22, 1983, Pan American did file its motion

to dismiss plaintiffs’ cases on the ground of forum non

conveniens.* In connection with the motion, Pan Ameri-

can stated that it would: (1) submit to jurisdiction of

the courts of Uruguay, (2) concede liability, (3) waive

any statute of limitations defense, (4) waive the War-

saw Convention’s limitation of damages provision, and

(5) guarantee satisfaction of any judgment entered

against it in Uruguay. In its motion Pan American

argued that the United States was an unnecessary party

since Pan American had guaranteed payment of any

judgment rendered against Pan American in Uruguay.

The motion went on to contend that dismissal on the basis

of forum non conveniens was proper because only the

damages issue remained and that this issue could best be

litigated in Uruguay. In a minute entry docketed Sep-

tember 6, 1983, the district court denied the motion. Pan

American moved for reconsideration or alternatively for

certification of the ruling for interlocutory appeal pursu-

ant to 28 U.S.C. §1292(b). The district court denied

both requests. Pan American petitioned this court for a

supervisory writ of mandamus, but on January 18, 1984,

we refused to issue the writ.*

3 Pan American also proferred its motion to dismiss on grounds

of forum non conveniens as to al! claims by or on behalf of foreign

citizens arising from the crash of Flight 759 then pending in the

Eastern District of Louisiana.

4 Pan American suggested that the court, sitting en banc, should

consider the petition for mandamus; however, no member of the

court requested a poll on the suggestion.

6a

On December 16, 1983, while Pan American was at-

tempting to gain interlocutory review of the district

court’s denial of its motion to dismiss for foruin non

cenveniens, plaintiffs, Pan American, and the United

States entered into a stipulation as to liability, damages,

defenses, and payment under any subsequent judgment.*

As anticipated by the parties, plaintiffs’ administrative

claims under the FTCA were unsuccessful, and on Feb-

ruary 17, 1984, plaintiffs amended their complaints to

make the United States a party defendant.’ The final

procedural posturing of these cases occurred when de-

fendants Boeing Company and New Orleans Aviation

Board were dismissed with prejudice pursuant to the

December 16 stipulation.

With the parties to these actions finally aligned, the

district court made several pretrial decisions on the law

which would apply. The court held that Pan American

had failed to show any significant difference between the

law of Uruguay and Louisiana; therefore, the law of

Louisiana would apply. The court, however, later granted

Pampin’s motion requesting that Uruguayan law apply

insofar as it recognized a nephew’s claim for the wrong-

ful death of an aunt; Louisiana law recognized no such

claim. The court also struck Pan American’s defense

that sought to invoke the damages limitations of the War-

* The December 16 stipulation in the Trivelloni-Lopez case is re-

produced in Appendix A to this opinion. A similar stipulation was

also entered in the Pampin case.

* Plaintiffs received written notification that their claims against

the United States had been denied on January 16, 1984. It was

not until this time that plaintiffs could properly sue the United

States. See 28 U.S.C. § 2675.

*In their amended complaints, plaintiffs alleged that the agents

and employees of the Federal Aviation Administration, an agency

of the United States, were negligent in operating the New Orleans

International Airport tower and in disseminating information on

weather conditions at the time of Flight 759’s take-off.

7a

saw Convention and the Montreal Agreement* because

the notices of liability limitation on the plaintiffs’ tickets

were not furnished in the required ten-point type size.

Both the Trivelloni and Pampin cases went to trial on

the same day. The trials were physically consolidated

while the juries heard from two witnesses to the crash

and from an anthropological expert who testified as to

South American mores and familial relationships. The

trials were then separated for presentation of evidence

particular to each family. The Trivelloni jury awarded

$25,000 each for the pre-impact pain and suffering of

Luis and Electra Trivelloni, $75,000 to each Trivelloni

child for the death of their parents, and $3,530 for loss

of their parents’ personal effects, for a total of $203,530.

The Pampin jury awarded $25,000 for the pre-impact

pain and suffering of each of Ernesto Pampin’s deceased

relatives, $12,000 for the post-impact pain and suffering

of Pampin’s aunt Irma Lopez de Alvarez, $250,000 for

the death of his mother, $150,000 for the death of his

sister, $13,000 for the death of his aunt, and $16,853.89

for loss of his relatives’ personal effects, for a total of

$516,853.89. The district court entered judgment in each

case against Pan American and the United States con-

sistent with the verdicts and denied all post-trial motions.

On appeal a panel of this court affirmed the district

court’s denial of Pan American’s motion to dismiss for

forum non conveniens, affirmed the district court’s decision

to apply Louisiana law to the damages issues with the ex-

ception that Uruguayan law would apply to permit Pam-

pin recovery for the death of his aunt, and affirmed the

district court’s refusal to apply the Warsaw Convention/

*The Warsaw Convention, 49 U.S.C. § 1502 note, as modified

by the Montreal Agreement, restricts damages to $75,000 for any

wrongful death of an international air passenger if certain noti-

fication prerequisites are carried out. See CAB Order E-23680,

31 Fed.Reg.,7302 (1966). See generally In re Air Crash at Warsaw,

Poland, 705 F.2d 85 (2d Cir.), cert. denied, 464 U.S. 845, 104 S.Ct.

147, 78 L.Ed.2d 138 (1983).

8a

Montreal Agreement damage limitation.’ In re Air Crash

Disaster Near New Orleans, Louisiana on July 9, 1982,

789 F.2d 1092 (5th Cir. 1986). As to the damages

awarded, the panel affirmed the award of pre-impact pain

and suffering for each family victim but based upon the

evidence ordered a remittitur to $7,500 for each decedent

or alternatively a new trial. Jd. at 1099. The award of

post-impact damages to Pampin for the pain suffered

by his aunt was affirmed as was the award to Pampin

for the loss of his mother.’® Jd. at 1100. The panel af-

firmed the damage award given to Pampin for the loss

of his sister but ordered a remittitur to $50,000 or, al-

ternatively, a new trial. Jd. at 1100. Finally, the panel

affirmed the district court’s award of prejudgment inter-

est against Pan American but reversed the prejudgment

interest award against the United States because such

award was prohibited by federal statute. Jd. at 1101

(citing 28 U.S.C. § 2674).

Neither party was particularly pleased with the out-

come of the panel decision. Plaintiffs applied for panel

rehearing on the issue of the remittiturs of the awards

for pre-impact damages. Pan American applied for en

bane rehearing on the forum non conveniens issue pur-

suant to Fed.R.App.P. 35 and Loc.R. 35. We granted re-

hearing en banc to consider particularly the forum non

conveniens issue. In re Air Crash Near New Orleans,

Louisiana on July 9, 1982, 795 F.2d 381 (5th Cir. 1986).

®In addressing the forum non conveniens issue, the pane! first

performed a choice-of-law analysis. The panel concluded that

Louisiana law was correctly applied to most elements of the dam-

ages. In re Aircrash, 789 F.2d at 1097 (citing Restatement (Second)

on Conflicts of Laws §$ 175, 178 (1982)). Since American law

applied, the panel stated that the district court’s ruling would be

upheld unless the cases were more properly tried in a foreign

forum. In light of the issues involved, the panel decided that

Louisiana was the proper forum in which these cases should be

heard. 7d. at 1098.

10 The damages given to the Trivellino [sic] children for the loss

of their parents were also affirmed without remittitur.

9a

Several issues relating to the doctrine of forum non

conveniens are raised in this appeal. We will address

the following questions: (1) In applying forum non con-

veniens in a diversity action, does a federal court apply

the forum non conveniens law of the state in which it

sits or federal forum non conveniens law; (2) Can a fed-

eral district court apply the doctrine of forum non con-

veniens in a case governed by the Warsaw Convention ;

(3) If federal law applies, what are the requirements of

the doctrine of forum non conveniens; (4) How should

the doctrine be applied by a district court; (5) What is

our standard of review; and, finally (6) Was the doc-

trine applied properly in these cases. We now turn to a

discussion of each issue.

II.

The doctrine of forum non conveniens rests upon a

court’s inherent power to control the parties and cases

before it and to prevent its process from becoming an

‘instrument of abuse or injustice. Through this power a

federal trial court may decline to exercise its jurisdiction,

even though the court has jurisdiction and venue, where

it appears that the convenience of the parties and the

court and the interests of justice indicate that the action

should be tried in another forum. Piper Aircraft Co. v.

Reyno, 454 U.S. 2385, 250, 102 S.Ct. 252, 70 L.Ed.2d 419

(1981): Koster v. Lumbermens Mutual. Casualty Co.,

93) U.S. 518, 530, 67 S.Ct. 828, 835, 91 L.Ed. 1067

(1947): Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507,

67 S.Ct. 839, 842, 91 L.Ed 1055 (1947). The doctrine

arose in the areas of admiralty and equity, but it is now

applied in a wide spectrum of cases in both federal and

state courts.!! Compare Syndicate 420 At Lloyd’s London

11 For the history and evolution of the doctrine from its Anglo-

Scottish origins, see Barrett, The Doctrine of Forum Non Con-

veniens, 35 Cal.L.Rev. 380 (1947) ; Bickel, The Doctrine of Forum

Non Conveniens as Applied to the Federal Courts in Matters of

10a

v. Early American Insurance Co., 796 F.2d 821, 825 (5th

Cir. 1986) (maritime insurance contracts case) with

Watson v. Merrell Dow Pharmaceuticals, 769 F.2d 354,

359-60 (6th Cir. 1985) (strict liability pharmaceutical

case). See generally Note, The Convenient Forum

Abroad Revisited: A Decade of Development of the Doc-

trine of Forum Non Conveniens in International Litiga-

tion in the Federal Courts, 17 Va.J.Int’] L. 755 (1977).

Before we examine the forum non conveniens analysis

that is to be applied in these cases, we must address two

preliminary matters.

A. “x

First, since these cases are based upon diversity ju-

risdiction, we are faced with the question of whether we

are bound by Louisiana forum non conveniens law or

federal forum non conveniens law under the teachings

of Erie RR. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,

82 L.Ed. 1188 (1988). Several courts, including the

Supreme Court, have declined to decide whether, under

Erie, state or federal law of forum non conveniens ap-

plies in diversity cases. See Piper Aircraft Co. v. Reyno,

454 U.S. at 248 n. 13, 102 S.Ct. at 262 n. 13; Gulf Oil

Corp. v. Gilbert, 330 U.S. at 509, 67 S.Ct. at 843; De

Melo v. Lederle Laboratories, 801 F.2d 1058, 1061 n. 2

(8th Cir. 1986). On each of these occasions the courts

reasoned that the issue need not be decided because the

state and federal forum non conveniens law were vir-

tually identical. Piper Aircraft Co. v. Reyno, 454 USS.

at 248 n. 13, 102 S.Ct. at 262 n. 13; Gulf Oil Corp, 330

U.S. at 509, 67 S.Ct. at 843; De Melo, 801 F.2d at 1061

n. 2. See also Schertenleib v. Traum, 589 F.2d 1156,

1162 n. 13 (2d Cir. 1978) (“intriguing question” need

Admiralty, 35 Cornell L.Q. 12 (1949); Blair, The Doctrine of

Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev.

1 (1929) ; Note, The Convenient Forum Abroad, 20 Stan.L.Rev. 57

(1967).

** Judge Higginbotham does not join in this section of the

opinion.

lla

not be addressed because federal and New York law the

same). In this case, however, Louisiana forum non

convenience law is substantially different than federal

forum non conveniens law.'* We must therefore decide

whether the district court in this case was obliged to

apply either the federal or Louisiana law of forum non

conveniens.

A Louisiana court has recently discussed the state’s

forum non conveniens law. In Kassapas v. Akron Ship-

ping Agency, Inc., 485 So.2d 565 (La.Ct.App. 5th Cir.),

writ denied, 488 So.2d 203 (La.), cert. denied, USS.

—., 107 S.Ct. 422, 98 L.Ed.2d 372 (1986), the issue

before the court was whether Louisiana courts may, ab-

sent statutory authorization, conditionally dismiss a suit

to a foreign country on the ground of forum non con-

veniens. The Louisiana Court of Appeals answered em-

phatically in the negative. The Kassapas court first noted

that the common law doctrine of forum non conveniens

was almost non-existent in Louisiana jurisprudence as

a result of the state’s French legal heritage. Jd. at 566;

see also Pausen & Burrick, Forum Non Conveniens in

Admiralty, 13 J.Mar.L. & Com. 341, 363 (1982) (“The

doctrine of forum non conveniens is alien to French

law.”). In a leading case on forum non conveniens dis-

missal in Louisiana, the court stated “that the doctrine

of forum non conveniens is foreign to our jurisprudence

and contrary to express legislative declaration.” Trahan

v. Phoenix Insurance Co., 200 So.2d 118, 122 (La.Ct.App.

Ist Cir.), cert. denied no error of law, 251 La. 47, 202

So.2d 657 (1967); see also Chaney v. Williher, 205 So.2d

770, 771 (La.Ct.App. 1st Cir. 1967), cert. denied, 251

La. 940, 207So0.2d 541 (1968).

The Kassapas court, however, noted that the Louisiana

Legislature had responded to Trahan by adopting article

12 For a description and discussion of federal forum non con-

veniens laws see infra parts III A, B.

12a

123 of the Louisiana Code of Civil Procedure. Article

123 provides:

For the convenience of the parties and the witnesses,

in the interest of justice, a district court upon con-

tradictory motion, or upon the court’s own motion

after contradictory hearing, may transfer a civil

case to another district court where it might have

been brought, provided, however, that no suit brought

in the parish of which the plaintiff is domiciled and

which court is otherwise a court of competent juris-

diction and proper venue, shall be transferred to any

other court pursuant to this article.

The Kassapas court reasoned that article 123 only au-

thorized transfer between Louisiana district courts. The

court stated:

[T]he Legislature added what is now La. Code Civ.

Pro. art. 123, to provide for forum non conveniens

transfer from one district court to another. That

article does not provide for transfer to a foreign

forum, nor does it permit forum non conveniens

dismissal. In this court’s opinion, the Trahan hold-

ing that the common law or federal doctrine of

forum non conveniens does not exist in our law is

still viable, except to the limited extent art. 123

authorizes transfer from one district court to an-

other within the State of Louisiana.

Kassapas, 485 So.2d at 566.

Finally, the Kassapas court refused to follow either

Smith v. Globe Indemnity Company, 243 So.2d 882 (La.

Ct.App. 1st Cir. 1971), or Symeonides v. Cosmar Com-

pania Naviera, 433 So.2d 281 (La.Ct.App. Ist Cir. 1983),

since their statements that forum non conveniens trans-

fer or dismissal to a foreign forum might be allowable

under article 123 were dicta and unsupported by statu-

tory language. Both Smith and Symeonides applied the

13a

federal “balancing of conveniences” approach to forum

non conveniens motions.

Since Kassapas is the last and most definite statement

on Louisiana forum non conveniens law, we believe it is

reasonable to consider it the current law in Louisiana for

Erie analysis. See Brumley Estate v. Iowa Beef Proces-

sors, Inc., 704 F.2d 1851, 1360 (5th Cir. 1983), cert.

denied, 465 U.S. 1028, 104 S.Ct. 1288, 79 L.Ed.2d 690

(1984). Thus, if we are bound to apply the Louisiana

rule as a diversity court, our inquiry would end and the

district court would be affirmed, albeit on different

grounds. We cannot, however, under Erie take this ex-

peditious avenue toward resolution of this appeal. We

turn then to the difficult Hrie question presented.

It is often said that the “general rule” is that federal!

diversity courts “apply state substantive law and federal

procedural law’; and indeed the statement is roughly

accurate. This general rule however only describes the

outcome of Erie analysis. What we classify as “substan-

tive” are precisely those matters governed by state law—

and as “procedural” those matters governed by federal

law—in federal diversity cases.1* Moreover, the normal

13 Justice Frankfurter warned us against reifying the “substance/

procedure” labels long ago:

Matters of “substance” and matters of “procedure” are much

talked about in the books as though they defined a great divide

cutting across the domain of law. But, of course, “substance”

and “procedure” are the same key-words to very different prob-

lems. Neither “substance” nor “procedure” represents the same

invariants. Each implies different variables depending upon

the particular problems for which it is used. And the different

problems are only distantly related at best, for the terms are in

common use in connection with situations turning on such dif-

ferent considerations as those that are relevant to ex post facto

legislation, the impairment of obligations of contract, the en-

forcement of federal rights in the state courts and the multi-

tudinous phases of the conflict of laws.

And so, putting to one side abstractions regarding “substance”

and “procedure,” we have held that in diversity cases the fed-

14a

meanings of the words “substance” and “procedure” will

not always stretch to provide the appropriate Erie label,

but that has not kept us from applying, for example,

state “procedural” rules in a diversity case. See, e.g.,

Conway v. Chemical Leaman Lines, Inc., 540 F.2d 887,

839 (5th Cir. 1976) (Erie policies require application of

state rule evidence in diversity case). Thus it has been

stated that Erie is “{a] policy so important to our fed-

eralism [that it] must be kept free from entanglements

with analytical or terminological niceties.” Guaranty

Trust Co. v. York, 326 U.S. 99, 110, 65 S.Ct. 1464,

1470, 89 L.Ed. 2079 (1945).

Again, as a general proposition, we often hear the

abstract definition of “substantive rules” as those ‘which

establish the rights of parties and generally determine

the outcome of litigation.” Under this definition we

would be hardpressed to hold that forwm non conveniens

is “procedural” because, as a practical matter, only an

outright dismissal with prejudice could be more “outcome

determinative” than a conditional dismissal to a distant

forum in a foreign land. But the question is obviously

not so simple. As we have noted, the Supreme Court has

assiduously avoided deciding whether state or federal law

controls a forum non conveniens determination in a fed-

eral diversity court, and respected authority exists for

both views. Compare, e.g. Sibaja v. Dow Chemical Co.,

757 F.2d 1215, 1219 (11th Cir.), cert. denied US.

" , 106 S.Ct. 347, 348, 88 L.Ed.2d 294 (1985)

(federal law of forum non conveniens applies in diversity

cases because doctrine is procedural) with Weiss v.

eral courts must follow the law of the State as to burden of

proof, as to conflict of laws, as to contributory negligence.

Erie R. Co. v. Tompkins has been applied with an eye alert to

essentials in avoiding disregard of State law in diversity cases

in the federal courts.

Guaranty Trust Co. v. York, 326 U.S. 99, 108-10, 65 S.Ct. 1464,

1469-70, 89 L.Ed. 2079 (1945) (citation omitted).

15a

Routh, 149 F.2d 1938, 194-95 (2d Cir. 1945) (state law

controls forum non conveniens question in diversity

case);' see also Speck, Forum Non Conveniens and

Choice of Law in Admiralty: Time for an Overhaul, 18

J.Mar.Law & Com. 185 (1987) (collecting numerous

cases going both ways). See generally 15 Wright, Miller

& Cooper, Federal Practice and Procedure: Jurisdiction

§ 3828, at 194 (2d ed. 1986) (“Although the Supreme

Court has repeatedly found that it did not need to decide

whether state notions of forum non conveniens were

binding on a federal court in a diversity action, it seems

quite clear that they ought not to be and that these are

matters of the administration of the federal courts, not

rules of decision, so that state rules cannot be control-

ling.”’).

The fact that Louisiana courts have labeled the forum

non conveniens doctrine “procedural” does not decide the

Erie question of whether a federal court sitting in diver-

sity applies state or federal notions of forum non con-

14 Learned Hand’s brief formulation of the argument is, as

usual, persuasive:

It might be argued that those considerations which will set a

court in motion are peculiar and personal to itself, and that it

does not follow that what is enough to move a state court to

act, should be enough to move a federal; or vice versa. Such

a doctrine would, however, imply that the decision to accept

jurisdiction is not controlled by any principle and may be at

the judge’s whim; and that would certainly be too strong a

statement. Here, as elsewhere, although judicial discretion

does indeed imply that the limits are not rigidly fixed, it does

not mean that there are none; and in dealing with the question

at bar, we are to remember the purpose of conformity in

“diversity cases.” It is that the accident of citizenship shall

not change the outcome: a purpose which extends as much to

determining whether the court shall act at all, as to how it shall

decide, if it does. For this reason it seems to us that we should

follow the New York decisions.

149 F.2d at 195.

l6a

veniens. As Justice Frankfurter said when considering

another question under Erie:

It is therefore immaterial whether statutes of

limitation are characterized either as “substantive”

or “procedural” in State court opinions in any use of

those terms unrelated to the specific issue before us.

Erie R. Co. v. Tompkins was not an endeavor to for-

mulate scientific legal terminology. It expressed a

policy that touches vitally the proper distribution of

judicial power between State and federal courts.

Guaranty Trust, 326 US. at 109, 65 S.Ct. at 1470.

State decisions can be helpful but they cannot be used

as a substitute for Erie analysis. The state courts may

have slapped the “procedure” label on an issue for pur-

poses that are completely divorced from the policies

underlying Erie.

Since the “general rules” are not of substantial aid in

resolving the Erie question before us, we go back to

the beginning—Erie Railroad v. Tompkins—to decide

whether state or federal law controls the forum non con-

veniens issue in a federal diversity court. The narrow

holding of Erie was that neither Congress nor the fed-

eral courts have power under the Constitution “to declare

substantive rules of common law applicable in a state

whether they be local in their nature or ‘general,’ be they

commercial law or a part of the law of torts.” 304 U.S.

64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). It soon

became clear, however, that the Evie doctrine was not

confined to the question of federal power. By the time

of Guaranty Trust the Supreme Court spoke only of the

Erie “policy,” and the opinion gave no suggestion that

the rationale of Erie should be confined to rules that te

federal courts lacked the constitutional power to create.

In Hanna v. Plumer, the Court stated Erie policy en-

compassed “the twin aims of .. . discouragement of

forum-shopping and avoidance of the inequitable admin-

17a

istration of the laws.” 380 U.S. 460, 468, 85 S.Ct. 1136,

1142, 14 L.Ed.2d 8 (1965).

Therefore, our task is to evaluate whether applying

federal forum non conveniens in this case advances or

hinders the “twin aims” of Erie. But first, two clarifica-

tions are in order. One, the “forum-shopping” concern

is not really the problem of forum-shopping in itself.

After all, the purpose of diversity jurisdiction is to allow

a certain kind of forum-shopping. Rather, the “forum-

shopping” concern for Erie purposes is the unfairness of

giving one set of plaintiffs (those who can sue in federal

court) some particular advantage unavailable to non-

diverse plaintiffs who must proceed in state court. Two,

the Hanna Court’s second purpose—“inequitable admin-

istration of the laws’—is ambiguous. This purpose may

refer either to extrinsic considerations of the fairness of

the competing state and federal rules to the parties—

“imequitable administration’—or to intrinsic considera-

tions of the federal forum’s own interests—“inequitable

administration.” We conclude that Hanna intends the

latter. The former interpretation would take federal

courts into an analysis of the “fairness” of the state

rule, in other words, its wisdom and propriety. This

could only lead to normative assertions by federal courts

that a given state law cannot be applied because to do

so would be “inequitable.” But it was precisely this nor-

mative role, this role of federal courts as prophets of a

“brooding omnipresence,” that Erie condemned. There-

fore, Hanna’s second aim must refer to the federal

courts’ own interests in equitable self-administration.

Because almost any difference between the rules applied

in state and federal courts can lead to different outcomes

and “forum-shopping’—the ability of diversity plaintiffs

to gain advantages denied to others—the first aim of

Erie is always best satisfied by applying state law. To

determine the importance of this aim for a particular

issue, the question is always “how different will the out-

18a

comes be?” If Louisiana courts refuse to dismiss on

forum non conveniens grounds, and if that doctrine does

not apply to a Louisiana cause of action in a federal

diversity court, there will be a tremendous disparity of

result between trials in the two court systems. One case

will proceed to judgment and the other will be dismissed

to a foreign land.

Here we face a twist on the usual problem. The usual

problem of forum-shopping in the Erie context is the

ability of plaintiffs to choose an advantageous federal

forum; there is an obvious inequity in allowing out-of-

state plaintiffs advantages over local plaintiffs in suits

under the same substantive law of the forum state. How-

ever, the occasional state court that refuses to apply forum

non conveniens—like Louisiana—becomes the advanta-

geous forum for some relevant group of both local and

non-resident plaintiffs. Thus, the differing state and fed-

eral rules contemplated by this case have no forum-

shopping implications for plaintiffs. But there will be

diversity between the parties in many such cases. De-

fendants in those cases will be able to remove the case

to federal court, negating any plaintiff's advantage.

Thus, our decision today will give some (arbitrary) set

of defendants the ability to “forum-shop,” i.e., to receive

an advantage in the federal court unavailable to the de

fendants who must remain in the state court. But this

defendant-forum-shopping twist does not alter the un-

avoidable conclusion: The enormous difference between

the outcomes of state and federal proceedings points

forcefully toward applying state law under the first

aim in Erie.

On the other hand, the interests of the federal courts

in maintaining the federal doctrine even in a diversity

case are powerful. We can describe those interests no

better than has a panel of our colleagues on the Eleventh

Circuit:

—————_

19a

The doctrine [of forum non conveniens] derives

from the court’s inherent power, under article Ill of '

the Constitution, to control the administration of the

litigation before it and to prevent its process from

becoming an instrument of abuse, injustice and op-

pression.

* 7 . >. 7 *

The doctrine addresses “whether the actions brought

are vexatious or oppressive or whether the interests

of justice require that the trial be had in a more

appropriate forum” Koster v. Lumbermens Mutual

Casualty Co., 330 U.S. 518, 530, 67 S.Ct. 828, 834-

35, 91 L.Ed. 1067 (1947)....

The Court’s interest in controlling its crowded

docket also provides a basis for the Court’s inherent

power to dismiss on grounds of forum non con-

veniens: “the ‘chosen forum is inappropriate because

of consideration affecting the court’s own adminis-

trative and legal problems.’” Piper Aircraft Co. v.

Reyno, 454 U.S. [235,] at 241, 102 S..Ct. [252,] at

258 [70 L.Ed.2d 419 (1981)] (quoting Koster v.

Lumbermans Mutual Casua'ty Co., 330 U.S. at 524,

67 S.Ct. at 831-32). “Administrative difficulties fol-

low for courts when litigation is piled up in con-

gested centers instead of being handled at its origin.

Jury duty is a burden that ought not to be imposed

upon the people of a community which has no rela-

tion to the litigation.” Gulf Ow Corp. v. Gilbert,

930 U.S. 501, 590-09, 67 S.Ct. 839, 843, 91 L.Ed.

1055 (1947). The forum non conveniens doctrine is

“designed in part to help courts avoid conducting

complex exercises in comparative law,” Piper Atr-

craft Co., 454 U.S. at 251, 102 S.Ct. at aa

Sibaja v. Dow Chemical Co., 757 F.2d 1215, 1218-19

(11th Cir.), cert. denied, US. , 106 S.Ct. 347,

88 L.Ed.2d 294 (1985) (brackets in original omitted).

Federal forum interests in self-management point force-

20a

fully toward applying federal law under the second aim

of Erie.

Our analysis of Erie’s twin aims in the context of

selecting state or federal forum non conveniens law pro-

duces conflicting indications on how to resolve the issue.

The aim of dissuading forum-shopping says apply Loui-

siana law in this diversity case. The other aim says apply

federal law as a matter of internal consistency and ad-

ministration. We have seen this kind of problem before.

We have held that the sufficiency of the evidence is a

federal question in a diversity court precisely because

the federal forum’s interest in self-management overrides

uniformity concerns:

Federal courts must be able to control the fact-

finding processes by which the rights of litigants

are determined in order to preserve the “essential

character” of the federal judicia] system. Of course,

we do not contend that this control wil] not affect

State-created substantive rights in some cases. Ulti-

mately, however, the integrity of our fact-finding

processes must outweigh considerations of uniform-

ity.

Boeing Co. v. Shipman, 411 F.2d 365, 369-70 (5th Cir.

1969) (en banc). The holding of Boeing has been ex-

tended to other aspects of the judge-jury relationship

without discussion of the Erie problems involved. For

example, under Mississippi law the trial judge must first

determine for himself that a defendant insurer had no

“reasonably arguable” basis for denying coverage before

submitting the question of punitive damages to the jury.

Blue Cross & Blue Shield of Mississippi v. Campbell, 466

S0.2d 833, 842 (Miss. 1985). We have refused to apply

that standard in diversity cases, Jones v. Benefit Trust

Life Insurance Co., 800 F.2d 1397, 1400 (5th Cir. 1986)

(Boeing is the appropriate standard; no discussion of

Erie}, even though the state standard clearly involves

2la

important substantive state policies of insurance regula-

tion, and even though the federal standard will consist-

ently skew the results of claims for punitive damages in

favor of plaintiffs. The result in Jones may be incon-

sistent with Byrd v. Blue Ridge Rural Electric Corp.,

356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). Byrd

held that federal law could override an inconsistent state

procedure only when the state “requirement appears to be

merely a form or mode of enforcing the immunity, and

not a rule intended to be bound up with the definition

of the rights and obligations of the parties.” 356 U.S. at

536, 78 S.Ct. at 900. We think, in the light of later

authority, that Byrd gave too little recognition to the

federal forum-qgua-forum interests. Compare Hanna v.

Plumer, which held that Congress has the power to over-

ride state law by the Federal Rules in “matters which,

though falling within the uncertain area between sub-

stance and procedure, are rationally capable of classi-

fication as either.” 380 U.S. at 472, 85 S.Ct. at 472.

Hanna gives us good reason to hold that federal courts

have inherent powers under Article III to displace state

laws on matters involving their basic competence as

courts. Boeing and Jones are correct because the rela-

tionship between judge and jury goes to the heart of the

independence and integrity of an Article III court.

Thus we face a difficult Erie-doctrine choice. We must

choose between maintaining important internal adminis-

trative and equitable powers of our courts at the cost

of disuniformity of result between state and federal

diversity courts, or uniformity at the cost of giving up

part of our self-regulatory powers. It is fashionable to

call a difficult choice between important objectives a

“balancing” test, but we decline to resort to this meta-

phor. It is simply a matter of choice, and choose we must.

We hold that the interests of the federal forum in

self-regulation, in administrative independence, and_ in

self-management are more important than the disrup-

—

—_—__

22a

tion of uniformity created by applying federal forwm

non conventens in diversity cases. We are far. down this

road already, having made a series of similar choices in

cases such as Boeing Co. v. Shipman and its progeny. We

think those choices were correct. We therefore hold that

a federal court sitting in a diversity action is required

to apply the federal law of forum non conveniens when

addressing motions to dismiss a plaintiff’s case to a for-

eign forum."

B.

Having decided which forum non conveniens law is to

be applied, we next address whether the district court in

While federal law of forum non conveniens is to be applied

in diversity cases, we note that the availability of the doctrine of

forum non conveniens has been greatly restricted. Only when the

more corvenient forum is a foreign country can a suit brought

in a proper federal venue be dismissed on grounds of forum non

conveluicus. Wright, Miller & Cooper, Federal Practice and Pro-

cedure; Jurisdiction § 3828, at 279-80 (2d ed. 1986) ; See also Pain

v. United Technologies Corp., 637 F.2d 775, 784-85 (D.C. Cir.

1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116

(1981); Schertenleib v. Traum, 589 F.2d 1156, 1159 (2d Cir. 1978).

If the motion seeks a change of forum within the federal system,

28 U.S.C. § 1404(a) applies instead of the common law doctrine of

forum non conveniens. Section 1404(a) provides:

For the convenience of parties and witnesses, in the interest

of justice, a district court may transfer any civil action to any

other district or division where it might have been brought.

In addressing the distinction between section 1404(a) and the

forum non conveniens doctrine, the Supreme Court stated:

Congress enacted § 1404(a) to permit change of venue between

federal courts. Although the Statute was drafted in accordance

with the doctrine of forum non conveniens, it was intended to

be a revision rather than a codification of the common law.

District courts were given more discretion to transfer under

s 1404(a) than they had to dismiss on grounds of forum non

conveniens.

Piper Aircraft Co. v. Reyno, 454 U.S. at 253, 102 S.Ct. at 264-65

(citations omitted). See generally Fitzpatrick, “Re yno”: Its Prog-

eny And Its Effects On Aviation Litigation, J. Air L. & Com. 539,

542-43 (1983).

23a

this case had the power to apply the doctrine. Plaintiffs

contend that the common law doctrine of forum non

conveniens as it exists in the federal system may not be

applied to an action governed by the Warsaw Convention

since article 28(1) of the Convention vests the absolute

choice of forum in a plaintiff. The plaintiffs’ position is

a unique argument which our research indicates has

never been addressed much less decided.’

At the outset we recognize that the parties agree that

the provisions of the Warsaw Convention are applicable

to these actions. The parties concurred at a pretrial

hearing that the plaintiffs’ deceased relatives were pas-

sengers in international air transportation. Further-

more, Pan American attempted to impose, albeit unsuc-

cessfully, the damage limitation of the Convention since

international air travel was involved in this crash. By

its express terms the Convention is applicable to all per-

sons travelling internationally by air.'’ We therefore

16 We have found but one case in which this argument has been

raised. An amicus curiae argued that the district court could not

invoke the doctrine of forum non conveniens to deprive a plaintiff

of the right to litigate in the United States, a proper Warsaw Con-

vention forum. See Irish National Insurance Co. Ltd. v. Aer Lingus

Teoranta, 739 F.2d 90, 91 (2d Cir. 1984). The Second Circuit de-

clined to decide the issue.

Furthermore, some courts have simply applied the forum non

conveniens doctrine without addressing the possible effect of section

28(1) of the Warsaw Convention. E.g., McLoughlin v. Commercial

Airways (PTY) Ltd., 602 F.Supp. 29, 33 (E.D.N.Y. 1985).

17 Article 1, section 1, of the Convention provides:

This convention sha!l apply to all international transporta-

tion of persons, baggage or goods performed by aircraft for

ae

Convention for the Unification of Certain Ruies Relating to Inter-

national Transportation by Air, October 12, 1929, 49 Stat. 3000,

T.S. No. 876 (1934), reprinted in 49 U.S.C. § 1502 note, at 430.

The Convention in article 1, section 2, defines international air

travel as transportation that (1) begins in one sovereign nation

24a

conclude that the Convention is applicable to the plain-

tiffs’ causes of action.'* See Mertens v. Flying Tiger

Line, Inc., 341 F.2d 851, 853-54 (2d Cir.), cert. denied,

382 U.S. 816, 86 S.Ct. 38, 15 L.Ed.2d 64 (1965); Hill

v. United Airlines, 550 F.Supp. 1048, 1054 (D.Kan.

1982).

The issue before us is whether the Warsaw Conven-

tion suspends a federal court’s power to apply the doc-

trine of forum non conveniens in a case governed by the

Convention. The Warsaw Convention of 1929 is a multi-

lateral treaty that regulates claims for damages and

other disputes which arise between passengers and inter-

national air carriers. See Lowenfeld & Mendelsohn, The

United States and the Warsaw Convention, 80 Harv.L.

Rev. 497 (1967). The Convention provides for ticket-

ing and baggage standards, freight shipment regulations,

carrier liability, liability limitations, and, of particular

interest in this case, jurisdictional requirements. The

United States adopted the treaty in 1934.!° Commenta-

and ends in another, or (2) begins and ends in the same nation

but with stops in other nations. Jd. The plaintiffs’ deceased rela-

tives’ travels fall into this latter category.

'*It might be argued that a party must plead a cause of action

under the Convention before its provisions would be applicable.

Cf. Boehringer-Mannheim Diagnostics v. Pan Am World Airways,

737 F.2d 456, 458 (5th Cir. 1984) (Warsaw Convention creates

cause of action), cert. denied, 469 U.S. 1186, 105 S.Ct. 951, 83

L.Ed.2d 959 (1985). The plaintiffs have not affirmatively pled

causes of action arising under article 17 of the Convention. See

49 U.S.C. § 1502 note, at 433 (“The carrier shall be liable for dam-

age sustained in the event of the death or wounding of a pas-

senger....’"). We do not believe the Convention should be read

so narrowly especially in light of its overall intent to establish a

uniform system for treatment of international air travel disputes.

See Mertens, 341 F.2d at 854-56 (applying Convention to diversity

case without pleading of Convention cause of action); Hill, 550

F.Supp. at 1053-54 (same).

'’ As a ratified treaty of the United States the Warsaw Conven-

tion is equal in stature and force as any other domestic federal

25a

tors are in general agreement that the delegates to the

Convention were most concerned with limiting the loca-

tions in which an air carrier would have to defend an

action, with ensuring that an injured party have an

available forum in which to redress his injuries, and with

allowing the suit to be heard in a forum that had some

interest in the dispute.”

As a manifestation of these concerns, article 28(1) of

the Convention establishes four national forums in which

an injured party may bring suit for damages inflicted

by an international air carrier. Article 28(1) reads:

An action for damages must be brought, at the op-

tion of the plaintiff, in the territory of one of the

High Contracting Parties, either before the court of

the domicile of the carrier or his principal place of

business, or where he has a place of business through

which the contract has been made, or before the

court at the place of destination.

The delegates, however, recognized that the Convention’s

provisions would have to be applied and adopted to a

variety of legal systems, so they provided in article 28

(2) that “[q]Juestions of procedure shall be governed

by the law of the court to which the case is submitted.” 1

law. See Dalton v. Delta Airlines, Inc., 570 F.2d 1244, 1246 (5th

Cir. 1978) ; Smith v. Cancdian Pacific Airways, Ltd., 452 F.2d 798,

801 (2d Cir. 1971).

20 See generally McHenry, Judicial Jurisdiction Under the War-

saw Convention, 29 J. Air L. & Com. 205 (1963); Lowenfeld &

Mendelsohn, The United States and The Warsaw Convention, 80

Harv.L.Rev. 497 (1967); Robbins, Jurisdiction Under Article 28

Of The Warsaw Convention, § McGill L.J. 352 (1963); Note,

Article 28 of the Warsaw Convention: A Suggested Analysis, 50

Minn.L.Rev. 697 (1965-66).

21 These two sections have been construed as creating three stages

of analysis for determining where a damage suit arising from an

international air transportation accident should be heard. The first

stage is whether jurisdiction in the international or treaty sense is

26a

Plaintiffs insist that article 28(1)’s language “at the

option of the plaintiff” grants them the absolute and in-

alterable right to choose the national forum in which

their claims will be litigated. We cannot agree. We are

of the opinion that article 28(1) offers an injured pas-

senger or his representative four forums in which a suit

for damages may be brought. The party initiating the

action enjoys the perogative of choosing between these

possible national forums but that selection is not invio-

late. That choice is then subject to the procedural re-

quirements and devices that are part of that forum’s

internal laws. See Smith v. Canadian Pacific Airways,

Ltd., 452 F.2d 798, 800 (2d Cir. 1971); Mertens, 341

F.2d at 855-56; Hill, 550 F.Supp. at 1054.22 As one com-

established. Treaty jurisdiction is dependent upon whether the

lawsuit is in the proper country or “place” as provided in section

28(1). Smith v. Canadian Pacific Airways, 452 F.2d 798, 800 (2d

Cir. 1971). The “places” for suit under 28(1) speak to nation-

states and not to areas within nation-states. Mertens v. Flying

Tigers Line, Inc., 341 F.2d 851, 855 (2d Cir. 1965). The second

tage queries, assuming treaty jurisdiction is established, whether

a court within the chosen national forum has jurisdiction. The court

chosen within the national forum must have jurisdiction under

the domestic law of that forum. Hill v. United States, 550

F.Supp. 1048, 1053 (D.Kan. 1982). Finally, the appropriateness of

the domestic court to hear the claim is determined by the local law

of the forum, i.e. venue. Smith, 452 F.2d at 800 (“It is only after

jurisdiction in both senses is had that the question of venue is

reached and a determination made regarding the appropriateness

and convenience for the parties of a particular domestic court.”) ;

Hill, 550 F.Supp. at 1053 (“[Wle hold that the Warsaw Convention

does not effect the court’s jurisdiction or venue beyond affirming

that this suit may properly be heard by a court located within the

territorial limits of the United States.’).

*2 We recognize that the above-cited cases do not involve forum

non conveniens motions to transfer or dismiss after a Warsaw

Convention forum has been selected. See also Commercial Union

Insurance Co. v. Pan American World Airways, Inc., 17 Avia.Cas.

(CCH) 17,652, 17,653 (N.Y.Sup. 1982). Our research indicates

no such cases exist. We believe however that they demonstrate

the reluctance of American courts to hold that domestic procedural

27a

mentator on the Convention has stated: “No evidence can

be found anywhere that the drafters of the Convention

intended to alter the judicial system of any country.”

Robbins, Jurisdiction Under Article 28 Of The Warsaw

Convention, 9 McGill L.J. 352, 355 (1963). We simply

do not believe that the United States through adherence

to the Convention has meant to forfeit such a valuable

procedural tool as the doctrine of forum non conveniens.

If we were to adopt the plaintiffs’ construction of

article 28(1) and ignore the language of article 28(2),

American courts could become the forums for litigation

that has little or no relationship with this country.” The

plaintiffs’ interpretation of article 28(1) cuts against

the Convention’s underlying purpose of ensuring that a

dispute arising out of an air travel accident is litigated

in a forum that has an actual interest in the matter.

See McHenry, Judicial Jurisdiction Under The Warsaw

Convention, 29 J.Air L. & Com. 205 (1963).

For the above reasons, we hold that article 28(1) of

the Warsaw Convention does not prevent a district court

from considering and applying the doctrine of forum non

conveniens.

law is unavailable in a case to which the Convention applies. Our

holding today on the Convention issue embodies this same reluctance.

23 A simple example will be illustrative. Suppose a Canadian

citizen while visiting New York buys a ticket for a Montreal-

Frankfurt-Montreal trip on L»*thansa, a German airline corpora-

tion doing business in New York. After eight hours of trans-

Atlantic flight, the Lufthansa flight carrying our Canadian citizen

crashes on the flat coastal plains of northern France near Calais.

The surviving widow of the unfortunate Canadian citizen sues

Lufthansa in the Southern District of New York for wrongful

death of her husband. Her selection of the United States as the

Warsaw Convention forum is appropriate since the ticket was

purchased in New York. Subject matter jurisdiction and personal

jurisdiction exist in the New York forum under federal law. Under

plaintiffs’ interpretation of article 28(1) the suit would have to be

litigated in New York despite the case’s limited relationship with

the United States.

28a

III.

Having decided the district court in this case should

and could apply the federal law of forum non conveniens,

we now determine, first, what is the federal law of forum

non conveniens, second, how should it be applied by a

district court, and, third, what is our standard of review

on appeal from a denial of a motion to dismiss for forum

non conveniens.

A. :

In outlining the appropriate forum non conveniens

analysis to be applied in these cases, we begin with the

Supreme Court’s seminal cases of Gulf Oil Corp. v. Gil-

bert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947),

and Koster v. American Lumbermens Mutual Casualty

Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947).

Gulf Oil and Koster established the general principle

“that a court may resist imposition upon its jurisdiction

even when jurisdiction is authorized.” Gulf Oil Corp.,

330 U.S. at 507, 67 S.Ct. at 842. The Court stated that

in deciding to exercise or decline jurisdiction “the ulti-

mate inquiry is where trial will best serve the conven-

lence of the parties and the ends of justice.” Koster, 330

U.S. at 527, 67 S.Ct. at 833. The determination of what

is most convenient rests upon several private and public

factors which the Court stated should be considered and

balanced by a court when presented with a motion to dis-

miss for forum non conveniens.

The private interests to be considered are the rela-

tive ease of access to sources of proof; availability

of compulsory process for attendance of unwilling,

and the costs of obtaining attendance of willing, wit-

nesses; probability 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. There may also be ques-

tions as to the enforcibility [sic] of a judgment if

one is obtained.

29a

Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. The public

interest factors include the administrative difficulties

flowing from court congestion; the local interest in hav-

ing localized controversies resolved at home; the interest

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

familiar with the law that must govern the action; the

avoidance of unnecessary problems in conflicts of law,

or in application of foreign law; and the unfairness of

burdening citizens in an unrelated forum with jury duty.

Id. at 508-09, 67 S.Ct. at 843. The Court in both Gulf

Oil and Koster emphasized that no one private or public

interest factor should be given conclusive weight and that

the plaintiff’s initial choice is usually to be respected.”

The Supreme Court has recently reaffirmed the prin-

ciples enunciated in Gulf Oil and Koster as appropriate

for use in diversity cases. Piper Aircraft Co. v. Reyno,

454 U.S. 235, 255, 102 S.Ct. 252, 265, 70 L.Ed.2d 419

(1981). While discussing the forum non conveniens doc-

trine within the context of a diversity case, the Supreme

Court recognized no exceptions to its general pronounce-

ments on the doctrine. See Sherrill v. Brinkerhoff Mari-

time Drilling, 615 F.Supp. 1021, 1033-35 (N.D.Cal.

1985). We therefore are of the opinion that the prin-

ciples enunciated in Reyno apply in all cases regardless

of their jurisdictional bases or subject matter.”

24 It has been suggested in the parties’ briefs that Gulf Oil and

Koster established different standards for dismissal on grounds

of forum non conveniens because the Court utilized different lan-

guage in addressing the issue. We believe this argument is merit-

less and agree with the District of Columbia and Second Circuits

that the two cases establish a single “balancing of conveniences”

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

783 (D.C.Cir. 1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71

L.Ed.2d 116 (1981); Alcoa Steamship Co., Inc. v. M/V NORDIC

REGENT, 654 F.2d 147, 154-58 (2d Cir.), cert. denied, 449 U.S.

890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980).

25 We recognize that in Jones Act and general maritime cases

we have in the past utilized a modified analysis on forum non con-

30a

In Reyno the Court emphasized that prior to balancing

the public and private interests enunciated in Gulf Oil, a

court must decide whether another adequate forum is

veniens issues. See McClelland Engineers, Inc. v. Munusamy, 784

F.2d 1313, 1317 (5th Cir. 1986): James v. Gulf Int'l Marine, 777

F.2d 193, 194 (5th Cir. 1985) ; Cuevas v. Reading & Bates Drilling

Co., 770 F.2d 1371, 1377-78 (5th Cir. 1985); Ali v. Offshore Co.,

753 F.2d 1327, 1330 (5th Cir. 1985): Nicol v. Gulf Fleet Supply

Vessels, Inc., 743 F.2d 289, 292-93 (5th Cir. 1984) ; In re McClelland

Engineers, Inc., 742 F.2d 837, 838 (5th Cir. 1984), cert. denied,

469 U.S. 1228, 105 S.Ct. 1228, 84 L.Ed.2d 366 (1985); Koke v.

Phillips Petroleum Co., 730 F.2d 211, 218 (5th Cir. 1984): Gahr

Developments, Inc. v. Nedlloyd Lijnen, B.V., 723 F.2d 1190, 1192

(5th Cir. 1984); Diaz v. Humboldt, 722 F.2d 1216, 1217 (5th Cir.

1984) ; Fajardo v. Tidewater, Inc., 707 F.2d 858, 861-62 (5th Cir.

1983); De Oliveira v. Delta Marine Drilling Co., 707 F.2d 8432,

845-46 (5th Cir. 1983); Bailey v. Dolphin Int'l Inc., 697 F.2d 1268,

1274 (5th Cir.), reh’g denied, 710 F.2d 837 (5th Cir. 1983); Vaz

Borralho v. Keydril Co., 696 F.2d 379, 384 (5th Cir.), reh’g denied,

710 F.2d 207 (5th Cir. 1983); Zekic v. Reading & Bates Drilling

Co., 680 F.2d 1107, 1108 (5th Cir. 1982); Volyrakis v. M/V

ISABELLE, 668 F.2d 863, 866 (5th Cir. 1982) ; Chiazor v. Trans-

world Drilling Co., 648 F.2d 1015, 1017-18 (5th Cir. 1981), cert.

denied, 455 U.S. 1019, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982);

Fisher v. Agios Nicolaos V, 628 F.2d 308, 315 (5th Cir. 1980),

cert. denied, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). See

also Liaw Su Teng v. Skaarup Shipping Co., 743 F.2d 1140, 1145

(5th Cir. 1984) (applying similar analysis in non-Jones Act mari-

time case).

In these cases we have begun the forum non conveniens analysis

by first determining whether United States law governs the actions.

This decision is made by considering the factors enunciated by the

Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921,

97 L.Ed. 1254 (1953) ; Romero v. International Terminal Operations

Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) ; and Hellenic

Lines v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252

(1970). If the court determines that United States law does apply,

it ordinarily keeps the case. If the court determines that United

States law does not apply, the court balances the private and public

convenience factors enunciated in Gulf Oil and Reyno. See Ali,

753 F.2d at 1333 n. 13.

We have never directly addressed the issue of whether this

modified analysis for forum non conveniens issues in the Jones

3la

available to hear the case because the doctrine of forum

non conveniens presupposes the existence of at least two

forums in which all defendants are amenable to process.

Id. at 254 n. 22, 102 S.Ct. at 265 n. 22; see also Syn-

Act and maritime areas is consistent with Reyno. We have noted

that it may not be. See De Oliveira, 707 F.2d at 845 (applying

modified analysis and citing Reyno with But see signal); see also

Koke, 730 F.2d at 218 (same). The circuits are also split as to

whether a modified analysis for Jones Act and maritime cases is

appropriate. Compare Cruz v. Maritime Co. of Philippines, 702

F.2d 47, 48 (2d Cir. 1983) (Jones Act cases treated like all other

cases on forum non conveniens issues) with Villar v. Crowley Mari-

time Co., 782 F.2d 1478, 1479 (9th Cir. 1986) (adopting modified

analysis announced by Fifth Circuit) and Sigalis v. Lido Maritime

Co..M/V ROYAL ODYSSEY, 776 F.2d 1512 (10th Cir. 1983)

(same). None of these cases however have specifically addressed

the effects of Reyno.

We have found one case that squarely confronts the issue of

whether a modified analysis in the context of a Jones Act action

is appropriate in the post-Reyno era. In Sherrill v. Brinkerhoff

Maritime Drilling, 615 F.Supp. 1021 (N.D.Cal. 1985), the court

recognized our approach but decided that it was inconsistent with

Reyno’s command that federal courts should avoid exercises in

choice-of-law or comparative law when addressing forum non

conveniens issues. 615 F.Supp. at 1034-35. The court in Sherrill

also noted that the Reyno decision carved out no exception for Jones

Act or maritime cases from its broad pronouncement that “[t|he

possibility of a change in substantive law should ordinarily not be

given conclusive or even substantial weight in the forum non

conveniens inquiry.” Jd. at 1035 (citing Reyno, 454 U.S. at 247,

102 S.Ct. at 261).

We also can discern no overriding justification for refusing to

apply Reyno’s principles and this opinion’s procedural rules to

forum non conveniens issues in Jones Act and general maritime

cases. We believe that a single and uniform approach to the

analysis and application of the forum non conveniens doctrine best

serves litigants and the courts. We, therefore, expressly disapprove

of and overrule our Jones Act and general maritime caselaw that

utilizes a modified forum non conveniens analysis. Henceforth, all

cases, including Jones Act and maritime actions, are governed by

the dictates of Reyno and this opinion.***

*** Judges Garza, Johnson, Garwood, and Higginbotham do not

join in this footnote.

32a

dicate 420 At Lloyd's London v. Early American Insur-

ance Co., 796 F.2d 821. 828 (5th Cir. 1986) - Watson v.

Merrell Dow Pharmaes uticals. 769 F.2d 304, 357 (6th

Cir. 1985): Calavo Growers of California v. Generali

Belgium, 632 F.2d 963, 968 (2d Cir. 1980). See aen-

erally 15 Wright, Miller & Cooper, Federal Practice &

Procedure § 3828 (24 ed. 1986) (dismissa] predicated on

forum non conveniens requires that al] parties be amen-

able in alternative forum). The Reyno court also stated

that a foreign plaintiff’s selection of an American forum

deserves less deference than an American citizen’s selec-

tion of his home forum.” Reyno, 454 U.S. at 255-56.

102 S.Ct. at 265-66. Finally, the Court held that the

possibility of an unfavorable change jn the law to be

applied should not be conclusive or even a substantial

factor in a court’s decision to dismiss for forum non

conveniens.*? Jd, at 254-55, 102 S.Ct. at 265.

°6 The Court’s language that a foreign plaintiff's forum selection

deserves legs deference is not an invitation to accord a foreign

plaintiff’s selection of an American forum no deference since dis-

missal for forum non conveniens is the exception rather than the

rule. Wright, Miller & Cooper, Federal Prectice and Procedurs ;

Jurisdiction » 3828, at 291-99 (2d ed. 1986). The fact that plain-

tiffs are foreign js not, in and of itself, sufficient to require dis-

missal under forum non conveniens. Seg Tokyo Marins & Fire

Ins. Co. v. Bell Helicopter Textron, 17 Avi. Cas, (CCH) 17,321.

17,322 (S.D.Tex. 1982); see also Fitzpatrick. “Reyno”’: Its Progeny

And Its Effect On Aviation Litigation, 48 J. Air L. & Com. 539,

557 (1983).

The Court al] cautioned that an American “citizen's forum

choice should noi be given dispositive weight” and that “dis-

missal should not be automatically barred when a plaintiff has filed

Suit in his home forum. 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.”

Reyno, 454 U.S. at 257 n. <3, 102 S.Ct. at 266 n. 23. See alec

Schernider .§ McDermott Internati: nal, Inc., 817 F.2d 1159, 1162-

63 n.1 (5th Cir. 1987

“An unfavorable change in the law which result: in the remedy

provided by the alternative forum being so clearly inadequate or

unsatisfactory such that it is no remedy at all can be given syb-

a

33a

A defendant of course bears the burden of invoking

the doctrine and moving to dismiss in favor of a foreign

forum. Syndicate 420, 796 F.2d at ee —— v.

Boeing Co., 708 F.2d 1406, 1411 (9th Cir.). ce denied,

464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d nl (1983)

This burden of persuasion runs to all the elements of the

forum non conveniens analysis. Therefore, the moving

defendant must establish that an adequate and available

forum exists as to all defendants if there are several.

If the moving defendant carries this initial burden. it

must also establish that the private and public interests

weigh heavily on the side of trial in the foreign forum.

The Supreme Court has held that a moving defendant

need not submit overly detailed affidavits to carry its

burden, but it “must provide enough information to en-

able the district court to roped the parties interests.”

Reyno, 454 U.S. at 258, 102 S.Ct. at 267.

Finally, the moving defendant must submit its motion

in a timely manner. There is little case law on this re-

quirement, but some courts have suggested that there are

no time limits or standards for motions to dismiss for fo-

rum non conveniens. F.q., Fifth & Walnut, Inc. v. Loew's.

Inc., 76 F.Supp. 64, 67 (D.C .N.Y.1948). We believe. how-

ever, that the better rule would be that a defendant must

stantial weight by a court. Id. at 254-55, 102 S.Ct. at 265. Such

a change may allow a court to conclude that a dismissal would not be

in the interest of justice. Jd. at 254 n. 22, 102 S.Ct. at 265 n. 22

“8 The Supreme Court has not explained how much detail by a

moving defendant is required. We believe the necessary detail will

depend upon the particular facts of each case. Each case will present

factual situations which might suggest that the parties have

greater or lesser knowledge about the facts of the dispute. The

issues that are contested will also affect the amount of detail re-

quired of a moving defendant. As one court has stated. however.

“a motion to dismiss for forum non conveniens does not call for

a detailed development of the entire case.” Fitzgerald Te

Inc., 521 F.2d 448, 451 n. 3 (2d Cir. 1975), cert. denied. 422 US

1052, 96 S.Ct. 781, 46 L.Ed.2d 781 (1976

34a

assert a motion to dismiss for forum non conveniens

within a reasonable time after the facts or circumstances

which serve as the basis for the motion have developed

and become known or reasonably knowable to the de-

fendant. See Wright, Miller & Cooper, Federal Practice

& Procedure: Jurisdiction § 3828, at 291 (2d ed. 1986) ;

cf. Creamer v. Creamer, 482 A.2d 346, 352 +D.C.App.

1984) (delay in making motion cuts in favor of denial).

While untimeliness will not effect a waiver, it should

weigh heavily against the granting of the motion be-

cause a defendant’s dilatoriness promotes and allows the

very incurrence of costs and inconvenience the doctrine

is meant to relieve.

B.

We now set out the controlling procedure by which a

district court should apply the above principles of forum

non conveniens. While we recognize that the decision to

grant or deny a motion to dismiss for forum non con-

veniens is within the discretion of the district court, see

Reyno, 454 U.S. at 257, 102 S.Ct. at 266, it should be an

exercise in structured discretion founded on a procedural

framework guiding the district court’s decisionmaking

process. Friends For All Children v. Lockheed Aircraft

Corp., 717 F.2d 602, 607 (D.C.Cir.1983).

The district court must first decide whether an ayvyail-

able and adequate foreign forum exists. This is a two-

part inquiry: availability and adequacy. A foreign forum

is available when the entire case and al) parties can come

Within the jurisdiction of that forum. See Syndicate 420,

796 F.2d at 830; Pain, 637 F.2d at 784; Calavo Growers

of California v. Belgium, 632 F.2d 963. 968 (2d Cir.

1980). A foreign forum is adequate when the parties

will not be deprived of all remedies or treated unfairly,

Reyno, 454 U.S. at 255, 102 S.Ct. at 265, even though

they may not enjoy the same benefits as they might

receive in an American court. Syndicate 420, 796 F.2d

at 829.

35a

If the court concludes that the foreign forum is both

available and adequate, it should then consider all of the

relevant factors of private interest, weighing in the bal-

ance the relevant deference given the particular plain-

tiff’s initial choice of forum.*® While reviewing the pri-

vate interest factors, the court should also consider

whether the defendant’s motion to dismiss was filed in

a timely manner.*°

If the district court finds that the private interests do

not weigh in favor of the dismissal, it must then con-

sider the public interest factors. We agree with the Dis-

trict of Columbia Circuit when it stated that “even when

the private conveniences of the litigants are nearly in

balance, a trial court has discretion to grant forum non

conveniens dismissal upon finding that retention of juris-

diction would be unduly burdensome to the community,

that there is little or no public interest in the dispute or

that foreign law will predominate if jurisdiction is re-

tained.” Pain, 637 F.2d at 792.

If the district court decides that the above considera-

tions favor trial in a foreign forum, it must finally

ensure that a plaintiff can reinstate his suit in the alter-

native forum without undue inconvenience or prejudice

and that if the defendant obstructs such reinstatement

in the alternative forum that the plaintiff may return to

the American forum.

The status of the case when a forum non conveniens

motion is decided is most significant in the resolution of

the motion. We hold that a district court performing the

above analysis, should review the motion in light of the

“Y See note 26 supra and accompanying text.

%° We believe the timeliness of the motion is one of the private

“practical problems” to be considered under the Gulf Oil and Reyno

principles.

EO

36a

status of the case at the time the motion is filed.** We

believe the time the motion is filed is the appropriate

time frame for considering its validity rather than the

time of the action’s commencement. There are many

factors that might bear on the granting or denial of the

motion, e.g., discovery, stipulations, admissions, the

joinder or dismissal of parties, which frequently develop

or occur after the action commences. Thus, the relevant

circumstances at the time the motion is filed should serve

as the factual backdrop of the court’s decision.

Finally, a district court should set out its findings and

conclusions supporting the granting or denying of a

motion to dismiss for forum non conveniens. The district

court’s findings and conclusions should be set out in

writing or clearly stated on the record. The analytical

framework outlined above can serve as an appropriate

structure for such findings and conclusions. Such a

practice will enhance our ability to effectively review

the decision by focusing the parties and the court on the

particular factor(s) upon which relief was granted or

denied.**

31 Cf. Schertenleib v. Traum,-589 F.2d 1156, 1161-64 (2d Cir.

1978) (proper time to test availability of the alternate forum is

the time the motion is filed).

82 The district court should explain its decision-making process

clearly and in sufficient detail to permit us adequately to review it,

either by giving written reasons or by dictating the reasons for its

decision into the record with the safe degree of explicitness. We

emphasize that both the parties and the district court should en-

deavor to ensure that specific findings and conclusions are made

either in writing or orally on the record.

If we are not supplied with either a written or oral explanation

of the court’s decision we will not be reluctant to vacate the lower

court’s judgment and remand because we do not perform a de novo

resolution of forum non conveniens issues. E.g. La Seguridad v.

Transytur Line, 707 F.2d 1304, 1308 (11th Cir. 1983) (court va-

cated and remanded for specification of reasons and development

of facts to support decision to dismiss for forum non conveniens).

37a

C.

The standard of appellate review for a denial of a

motion to dismiss for forum non conveniens is narrow.

As the Supreme Court stated:

(The denial of a motion 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.

Reyno, 454 U.S. at 257, 102 S.Ct. at 266; see also Syndi-

cate 420, 796 F.2d at 828. As with all decisions that are

reviewed for abuses of discretion, it is difficult to formu-

late a list of examples which will be always abuses of

discretion. See generally Friendly, Indiscretion About

Discretion, 31 Emory L.J. 747 (1982). We can say with

certainty that a district court abuses its discretion when

it summarily denies or grants a motion to dismiss without

either written or ora! explanation. We can also state

that a district court abuses its discretion when it fails to

address and balance the relevant principles and factors

of the doctrine of forum non conveniens. See Gates

Learjet Corp. v. Jensen, 743 F.2d 1325, 1334 (9th Cir.

1984) (court’s failure to consider private. factors and

two public factors in deciding forum non conveniens mo-

tion was abuse of discretion), cert. denied, 471 U.S. 1066,

105 S.Ct. 2143, 85 L.Ed.2d 500 (1985); La Seguridad v.

Transytur Line, 707 F.2d 1304, 1308 (11th Cir. 1983)

(district court’s dismissal of plaintiff’s action without

balancing private and public factors or specifying facts

supporting dismissal was abuse of discretion) ; Founding

Church of Scientology v. Verlag, 536 F.2d 429, 436 (D.C.

Cir.1976) (district court’s weighing of only disadvan-

tages of one forum was abuse of discretion). Beyond

these two examples, we cannot list which decisions will

38a

be adjudged abuses of discretion and which will not.

Simply stated, our duty as an appellate court in review-

ing forum non conveniens decisions is to review the

lower court’s decisionmaking process and conclusion and

determine if it is reasonable; our duty is not to perform

a de novo analysis and make the initial determination

for the district court. See Reyno, 454 U.S. at 257-58, 102

S.Ct. at 266-67.

In deciding whether a district court’s denial of a mo-

tion to dismiss for forum non conveniens was an abuse

of discretion, we may also need to consider an additional

factor—the effect, if any, of a subsequent trial of the

case. The denial of a motion to dismiss for forum non

conveniens is not a final order under 28 U.S.C. § 1291

and, therefore, is not immediately appealable. Partre-

deriet Treasure Saga, et al. v. Joy Manufacturing Co.,

804 F.2d 308, 309-10 (5th Cir. 1986).°* An unsuccessful

defendant may seek certification for an interlocutory

appeal pursuant to 28 U.S.C. § 1292(b), or if this is

denied, the defendant can petition this court for a writ

of mandamus. See Jn re McClelland Engineers, Inc., 742

F.2d 837, 839 (5th Cir.1984), cert. denied, 469 U.S. 1228,

105 8.Ct. 1228, 84 L.Ed.2d 366 (1985). The decision to

certify an interlocutory appeal pursuant to section

1292(b) is within the discretion of the trial court and

unappealable. Jn re McClelland, 742 F.2d at 839. Our

intervention in this decision by way of a writ of man-

damus is very rare. See Castanho v. Jackson Marine,

Inc., 650 F.2d 546, 550 (5th Cir. 1981). Hence, initial

appellate review of a denial of a motion to dismiss for

forum non conveniens may sometimes follow a trial on

——_

88 See also Rosenstein v. Merrell Dow Pharmaceuticals, Inc., 769

F.2d 352, 354 (6th Cir. 1985); Coastal Steel Corp. v. Tilghman

Wheelabrator Ltd., 709 F.2d 190, 195 (3d Cir.), cert. denied, 464

U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983); Nalls v. Rolls-

Royce Ltd., 702 F.2d 255, 255 (D.C.Cir.), cert. denied, 461 U.S.

970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).

39a

the merits.* In the present cases the district court

refused to certify an interlocutory appeal of the forum

non conveniens issue and we refused to issue a writ of

mandamus. Pan American, therefore, had to go to trial

in the forum selected by the plaintiffs without review

of the district court’s ruling, as may many defendants

whose motions to dismiss for forum non conveniens fail.

The fact that a trial on the merits has occurred in

the plaintiff’s selected forum does have some effect on

our decision of whether the district court abused its

discretion in maintaining the action before it.** Unless

34 Through our observations that initial appellate review of a

forum non conveniens decision may often follow a trial on the

merits, we do not suggest that district courts and parties shouid

not use the certification procedure of section 1292(b), nor do we

suggest that we will be reluctant to accept such certifications. Cer-

tification is a proper method to obtain pre-trial appellate review

of a forum non conveniens decision. We, of course, will remain

receptive to receiving certifications when they are forwarded from

the district courts. However, since the decision to certify is within

the discretion of a district court, we cannot direct that all forum

non conveniens issues be certified. That is a matter dependent upon

the particular circumstances of each case and the district court’s

judgment.

35 The fact that a trial has occurred should be considered only

on appellate review. A district could should not consider the fact

of a subsequent trial because it should not be addressing a motion

to dismiss for forum non conveniens post-trial. The district court

has a duty to rule on a motion to dismiss for forum non conveniens

before trial for two reasons. First, the district court’s decision

should be based upon the factual setting at the time the motion

is filed which will logically be pretrial. Second, the practice of

carrying a motion to dismiss for forum non conveniens through

trial frustrates the doctrine’s overall purpose of avoiding unneces-

sary costs and inconvenience.

Nothing in the requirement that a district court rule on a motion

to dismiss for forum non conveniens at the time it is filed precludes

the court from re-examining its decision in light of facts that

develop after the forum non conveniens motion has been resolved.

If the defendant properly requests the district court to reconsider

40a

the defendant can show that he was greatly prejudiced

by the fact that the trial occurred in the particular

forum selected by the plaintiff, we believe the trial’s

occurrence and completion bolsters the district court’s

original decision to deny the motion to dismiss. A de-

fendant might establish prejudice by showing key evi-

dence or witnesses were unavailable during trial or that

it did not receive a fair trial because of the forum’s

animosity or prejudice toward it. By pointing out such

prejudice, the defendant raises an inference that the

trial court’s decision to deny the motion was erroneous.

In any event the fact that trial on the merits has oc-

curred, following a denial of a motion to dismiss for

forum non conveniens, may be a factor to be considered

on appeal in deciding whether the trial court abused its

discretion. It may often times, however, not come into

play if the private and public factors otherwise support

the lower court’s decision.

IV.

Applying the above principles and standards to the

instant cases, we do not find that the district court abused

its discretion in denying Pan American’s motion to dis-

miss for forum non conveniens.

These cases do not turn upon a complicated examina-

tion of the private and public interest factors that in-

fluence a forum non conveniens decision. Rather this

case was properly tried in the United States because no

other forum could entertain the plaintiffs’ actions against

all of the defendants. An examination of the record

reveals that the district court denied Pan American’s

its forum non conveniens ruling, the court may review its prior

action. However, in any reconsideration the defendant bears the

heavy burden of establishing great prejudice to his case or a denial]

of a fair trial in light of changed circumstances. If the defendant

carries this burden, the district court may then alter its original

ruling.

- 4la

motion because the United States was to be a defendant

in the plaintiffs’ actions. Based upon this finding the

district court concluded that Pan American had failed

to carry its burden of demonstrating that an alternative

foreign forum was available to plaintiffs. We agree with

the district court’s conclusion that no alternative forum

was available.

At the time Pan American made known its intention

to seek dismissal based upon forum non conveniens and

at the time it filed its motion, the extant parties knew

the United States was to be made a party defendant upon

completion of the FTCA administrative proceedings. Fur-

thermore, at that time every party including Pan Ameri-

can, proceeded under the assumption that the United

States was a party to these lawsuits. The December 16

stipulation contained in Appendix A to this opinion was

executed by the plaintiffs, Pan American, and the United

States.*® In papers filed in the district court Pan Ameri-

ean stated that “The United States, and it alone, was

contemplated by all as an additional party.” At the

times the district court ruled on the motion to dismiss,

both orally and in writing, we believe it was proper for

the court to consider the ultimate presence of the United

States as a party in evaluating whether an alternative

forum was available to plaintiffs.

On appeal Pan American insists that its assurance,

contained in the motion to dismiss, to pay any judgment

rendered in an alternative forum and its consent to sub-

mit to the alternative forum’s jurisdiction and its under-

writer’s commitment to guarantee the payment of any

judgment made an alternative forum available. We

disagree.

36 While the December 16 stipulation was entered after the

district court’s ruling on Pan American’s motion to dismiss, we

believe it important to note that Pan American and the United

States had prior to the motion informed the court of their inten-

tion to enter into the stipulation.

—

42a

Pan American and its underwriters guaranteed to pay

“any judgment rendered against it.” (emphasis added).

The “it” referred to is Pan American and not another

defendant such as the United States. Plaintiffs sought

recovery from Pan American and the United States, not

one or the other. Plaintiffs in fact recovered a judgment

against both Pan American and the United States. Fur-

thermore, Pan American’s stipulation to submit to the

jurisdiction of a foreign forum cannot act as a stipula-

tion by the United States to consent to the jurisdiction

of a foreign forum.** Pan American’s assurances of pay-

ment and jurisdiction were not joined in by the United

States nor does the record indicate that they should be

attributed to the United States. Pan American’s condi-

tional promises simply fail to make all defendants avail-

able to plaintiffs in a Uruguayan forum. That is the

initial burden Pan American bore in seeking a dismissal

for forum non conveniens, and it failed to carry it.

Since the district court correctly concluded that an

alternative forum was unavailable, there was no need for

it to proceed to a balancing of the private and public

interest factors. Pan American’s argument that the

trial court’s failure to perform this bal ancing was an

abuse of discretion is without merit.

Accordingly, we affirm the district court’s denial of

Pan American’s motion to dismiss for forum non

conveniens.

V.

Our granting of the petition for rehearing en bane

vacates the panel’s opinion and judgment. Fifth Cir. Loc.

37 For a case in which the United States did join in a motion

to dismiss and agreed to consent to the jurisdiction of a foreign

forum, see Friends For All Children v. Lockheed Aircraft Co., 717

F.2d 602 (D.C.Cir. 1983). The government’s stipulation, hanbiene.

did not persuade the District of Columbia Circuit to reverse a

denial of the motion to dismiss. Jd. at 610.

43a

R. 35. Having resolved the forum non conveniens issue

raised by Pan Am in its request for rehearing en banc

and finding no other issue in the case worthy of en banc

discussion,** we reinstate the following holdings of the

panel:

38 Judge Gee vigorously objects to our decision to reinstate the

panel’s choice of law analysis. He also objects to the amount of

damages each foreign plaintiff has recovered. In brief response to

his able writing, it is first noted that the conflicts issue is a matter

of state not federal law and that matters of state law are rarely

worthy of en banc review. En banc review is reserved for only the

most important federal law issues and is prompted by the need for

a definitive statement on the law by the full court. Nothing in the

conflicts issue involves a question of exceptional importance or

would result in a decision that would secure uniformity in future

decisions. This case merely involved application of established

rules to the particular facts of these cases. Thus, as stated above,

we are not persuaded that this state law issue is worthy of en banc

dissertation.

Second, even setting aside this prudential reason for not reach-

ing the issue, we are not convinced that the panel’s treatment of

the conflicts issue is incorrect. The issue raised by Pan American

was whether the district court erred in applying Uruguayan law to

allow Pampin the right to recover for the death of his aunt; this is

a recovery not allowed under Louisiana law. The answer to this

decision is made pursuant to Louisiana choice-of-law principles.

See Klaxon Co. v. Stentor Electrical Mfg. Co., 313 U.S. 487, 61

S.Ct. 1020, 85 L.Ed. 1477 (1941) (state choice-of-law rules applied

in diversity cases).

Louisiana has adopted an “interest analysis/most significant rela-

tionship” approach to choice-of-law decisions. See Jagers v. Royal

Indemnity Co., 276 So.2d 309 (La. 1973). Interest analysis is a

two-step process. First, the court must determine whether a true or

false conflict of interests exists. This determination is made by

examining the various competing interests of the states involved

with a particular issue. If a false conflict exists, the law of the

state with the exclusive interest is applied and the second step is

unnecessery. If a true conflict exists, the law of the state with the

most significant relationship to a particular issue is applied in

accordance with the principles of the Second Restatement of Con-

flicts of Laws. See Brown v. DSI Transports, Inc., 496 So.2d 478,

481 (La.App. 1986); Burns v. Holiday Travels, Inc., 459 So.2d 666,

EE

44a

668 (La.App. 1984); Lee v. Ford Motor Co., 457 So.2d 193, 194

(La.App. 2d Cir. 1984). This two-step process must be performed

for each significant issue in the case. See Silver v. Nelson, 610

F.Supp. 505, 513 (E.D.La. 1985) (applying Louisiana law). The

process of analyzing separate issues within a single case for choice-

of-law decisions and applying different laws to different parts of

the same case is known as depacage, and Louisiana law has adopted

this choice-of-law theory. See generally Reese, Depacage: A Com-

mon Phenomenon in Choice of Law, 73 Colum.L.Rev. 58 (1973).

If a true conflict exists reference would be made to provisions

of the Restatement. On the issue of the right to a cause of action

for death, section 175 of the Restatement provides:

In an action for wrongful death, the local law of the state

where the injury occurred determines the rights ard liabilities

of the parties unless, with respect to the particular issue, some

other state has a more significant relationship under the prin-

ciples stated in § 5 to the occurrence and the parties, in which

event the local law of the other state will be applied.

Section 6 of the Restatement provides:

(1) A court, subject to constitutional restrictions, will follow

a statutory directive of its own state on choice of law.

(2) When there is no directive, the factors relevant to the

choice of the applicable rule of law include:

(a) the needs of the interstate and international systems;

(b) the relevant policies of the forum;

(c) the relevant policies of other interested states and the rela-

tive interests of those states in the determination of the par-

ticular issue;

(d) the protection of justified expectations;

(e) the basic policies underlying the particular field of law:

(f) certainty, predictability and uniformity of result, and

(zg) ease in the determination and application of the law to be

applied.

The first question is whether there is a true conflict of laws on

the issue of whether Pampin can recover for the death of his aunt.

The laws of the two involved forums are certainly in conflict—

Uruguay ailows recovery, Louisiana does not—but this observation

does not by itself answer whether a true conflict exists. We must

also look to the interests of the two states involved. Uruguay’s

interest in seeing that its law applies is apparent—to ensure that

an Uruguayan heir or relative of a Uruguayan citizen wrongfully

killed may gain compensation for that wrongful death. Louisiana’s

eee

45a ~

interest in seeing its law aplied so as to prevent Pampin’s recovery

is somewhat elusive but it could be argued that Louisiana has an

interest in protecting, through limiting the possibility of recovery

for wrongful death to a smaller list of relatives, non-resident entre-

preneurs, such as Pan American who do business in Louisiana.

Assuming that this Louisiana interest does exist, then a true con-

flict of interests exists on this legal issue and we would turn to

the Restatement for guidance.

Considering section 175 and the provisions of section 6, Uru-

guayan law was properly applied by the district court and affirmed

by the panel. While section 175 would give Louisiana the initial

nod because it is the situs of the injury, Uruguay’s interest in see-

ing that relatives of a deceased Uruguayan citizen recover damages

for those wrongful deaths overrides the speculative interest of

Louisiana in protecting non-resident tortfeasors. This decision is

also consistent with the concerns expressed in section 6(2), (b),

(c), and (d) of the Restatement.

Any decision here also has to be influenced by the district court’s

determination that Uruguayan law properly governed the issue of

whether Pampin could recover damages for the death of his aunt.

“The well-settled rule in this Circuit is that on review we accord

significant weight to a federal district court’s determination of the

law of the state in which it sits.” Browning Seed, Inc. v. Bayles,

812 F.2d 999, 1004 (5th Cir. 1987); Armstrong v. Farm Equipment,

742 F.2d 883, 886 (5th Cir. 1984).

The dissent’s primary complaint is that the result in this case

involves application of a law that no sovereign would apply and that

the Uruguayan citizens seeking recompense for the wrongful deaths

of their relatives are able to recover more here in the United States

than they could in Uruguay. On the first point, the very application

of the depacage theory often results in an amalgamation of laws

depending upon the relative interests of the particular forum to a

particular issue. Since Louisiana has adopted this theory we are not

free to ignore in favor of a result we might otherwise think

appropriate.

As to the second point, it would seem the dissent wishes to take

away with the left hand what it gives with the right. The dissent

agrees that the plaintiffs in this case are entitled to litigate their

claims in the United States. But the dissent asserts that any recov-

ery they might recover must “approximate” the recovery they

could have obtained in a Uruguayan court from a Uruguayan

jury. Thus while we say “Yes plaintiff you have shown you are

entitled to have your claim heard in the United States,” we would

add parenthetically “But you can not recover the same amount

as a native litigant can.” Admittedly the United States forum is a

EEE

46a

(1) The district court correctly applied Uruguayan

law in recognizing and allowing Pampin’s claim

for death of his aunt; ****

(2) The district court correctly denied Pan Ameri-

can’s invocation of the Warsaw Convention

liability-damages limitation;

(3) The plaintiffs-appellees’ awards for pre-impact

damages is affirmed but remitted to $7,500 for

each decedent and if plaintiffs-appellees do not

accept such remittitur then a new trial on these

damages is ordered;

(4) The award to Pampin for the post-impact pain

and suffering of his aunt is affirmed without al-

teration;

(5) The award to Pampin of $250,000 for the loss

of his mother is affirmed without alteration;

(6) The award to Pampin for the loss of his sister

is affirmed but remitted to $50,000, and if Pam-

generous arena, that of course is one reason why it is a popular

forum for litigants. But entitlement to be heard in a United States

forum is not automatic, as we have discussed earlier. Hence, since

these plaintiffs have demonstrated that their cases are properly

within a federal forum we can discern no reason to deprive them of

the full benefits of that forum. The dissent argues that this is some-

how unfair to Pan American. Nothing, however, appears unfair in

requiring Pan American to compensate these Uruguayan citizens

for the death of their relatives by American jury standards when

Pan American was admittedly responsible for their deaths in the

United States and when Pan American charged the same price for

airfare in the United States to the deceased Uruguayan passengers

as it did to domestic passengers. Both facts indicate that Pan

American could reasonably anticipate being held accountable to

American standards for the deaths of these foreign citizens.

**** Chief Judge Clark and Judges Garza, Gee, Garwood, Jolly,

Davis, and Jones do not join in the opinion’s reinstatement of the

panel’s choice-of-law decision.

47a

pin does not accept this remittitur then a new

trial on these damages is ordered;

(7) The awards to the Trivelloni-Lopez children for

the loss of their parents is affirmed without al-

teration;

(8) The district court correctly refused to discount

the damages for loss of love and affection to

present value;

(9) The district court correctly awarded pre-judg-

ment interest against Pan American; and

(10) Interest can be awarded against the United

States only from the date of judgment, there-

fore, the portion of the judgment awarding pre-

judgment interest against the United States is

reversed and it is directed that a correct judg-

ment be entered on remand.

For the reason stated above, we AFFIRM the district

court’s denial of Pan American’s motion to dismiss for

forum non conveniens. As to the other issues raised in

this appeal, we AFFIRM in part, REVERSE in part,

REMIT in part or alternatively order a new trial on par-

ticular damages, and REMAND to the district court for

entry of a judgment consistent herewith.

48a

APPENDIX A

It is hereby stipulated and agreed by and between the

plaintiff_is) herein and Pan American World Airways.

Inc. and the United States of America, defendants herein.

and through their respective attorneys as follows:

1) The plaintiff(s) in this action purport to be the

roper plaintiff(s), personal representative and/or next

of kin who have commenced an action against Pan Amer-

n World Airways, Inc., the Boeing Company, the

United States of America, United States Aviation Under-

writers, Inc. and/or the New Orleans Aviation Board

1 ' °

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49a

any plaintiff(s) where applicable. All other defenses, ex-

cept the defense of no liability for compensatory dam-

ages, are reserved by Pan American and the United

States.

6) In the event plaintiff and defendants Pan American

and the United States are unable to agree on the law

applicable to the issue of compensatory damages, the issue

shall be decided by the transferee court so that if this

case is remanded to the transferor court for trial the only

issue to be tried will be the quantum of compensatory

damages pursuant to the applicable law, as determined

by the transferee court.

7) The right to appeal from a compensatory damage

judgment (except as to liability therefor) is reserved to

plaintiff and defendants Pan American and the United

States.

8) Defendants Pan American and the United States

shall not contest their liability for provable property loss

of damage claims made by plaintiff(s) herein but reserve

the right to assert any applicable tariff and contractual

exclusions and limitations to liability with respect thereto.

9) In the event the parties hereto are unable to nego-

tiate a settlement of the compensatory damage claims,

they shall except by agreement of the parties or a Court

order to the contrary agree to a non-binding settlement

conference before that individual, or individuals, desig-

nated by this Court before the issue of compensatory dam-

ages is the subject of trial.

+

10) As a condition precedent to the payment of the

compensatory damages referred to above, plaintiff(s)

and their attorneys hereby agree to deliver a general re-

lease, in a form satisfactory to the defendants, fully dis-

charging the defendants named herein, their insurers and

any other entities who are or may be claimed to be re-

sponsible in whole or in part for this accident from all

liability of any nature to plaintiff (s).

11) The approval of this stipulation by the attorneys

for each of the defendants herein is in no way to be con-

50a

strued as an admission of responsibility or liability by

any individual, corporation or governmental entity for

the damages alleged in the Complaint filed in this action,

said responsibility and liability being expressly denied

by each of said defendants; but this stipulation is solely

and unconditionally intended to accomplish the fair and

expeditious compensation of plaintiff(s) insofar as they

are proper parties to this action, without reference to

fault or responsibility, and nothing contained herein

should be construed to the contrary.

12) This stipulation is limited to the parties in this

action only and shall not affect the rights of defendants

in other litigation arising out of this accident, now pend-

ing or hereafter brought.

13) United States Aviation Underwriters, Inc. for and

on behalf of the United States Aircraft Insurance Group

and all of the other liability insurers of Pan American

World Airways, Ine. as of July 9, 1982 hereby guarantee

the payment of any judgment rendered against Pan

American World Airways, Inc. pursuant to this stipula-

tion in accordance with the applicable aircraft liability

insurance policy in effect on July 9, 1982.

/s/ Stephen B. Murray

Stephen B. Murray, Esq.

Attorney for Plaintiff (s)

/s/ Francis G. Weller

Francis G. Weller, Esq.

Attorney for Defendant

Pan American Airways, Inc.

/s/ James P. Piper

James P. Piper

Attorney for Defendant

The United States of America

5la

GEE, Circuit Judge, with whom CLARK, Chief Judge,

GARWOOD, JOLLY, DAVIS and JONES, Circuit

Judges, join, concurring in part and dissenting in part:

I begin this concurrence and dissent by voicing my

whole-hearted concurrence in the majority’s analysis and

application of the forum non conveniens doctrine. The

majority provides an excellent exposition of the doctrine

and a helpful step-by-step guide to its application. I must

dissent, however, on the choice of law issue.

I.

The majority reinstates the panel’s holding, concluding:

“The district court correctly applied Uruguayan law in

recognizing and allowing Pampin’s claim for the death

of his aunt.” For prudential reasons,’ the majority de-

clines to address the choice of law issue directly, but it

does address the merits of the issue in its footnote 38, be-

cause it is “not convinced that the panel’s treatment of

the issue was incorrect.’”’ I am convinced on the other

hand, that the panel’s and the majority’s analyses pro-

vide a deceptively simple solution to a difficult issue.

1 The majority relies on prudential reasons for declining to reach

this issue: the case merely involves “application of established rules

to the particular facts” and matters of state law are “rarely worthy

of en banc review.” For me, this case is an exception to those rules.

Our task is to apply the Louisiana law faithfully and correctly. I

find no Louisiana cases that directly address this fact pattern, a

damages-only controversy brought by fcreign plaintiffs. I also find

nothing in the state law that indicates a Louisiana court would

apply the “established rules” as the majority has. Rather, my read-

ing of the sources upon which Louisiana law relies, the general

principles governing interest analysis and the Restatement (Sec-

ond) on Conflict of Laws, indicates that the majority’s analysis fails

to recognize the full gamut of principles that guide interest analy-

sis. Understandably so. Interest analysis is relatively young. The

decisional base, from which emerge patterns applying interest

analysis, has only begun to address the wealth of varying fact

situations that present conflict issues. It is not surprising that

since the adoption of interest analysis with the Jagers decision in

52a

Initially, I paused at a choice of law analysis that not

only allows Mr. Pampin, a citizen of Uruguay, to recover

Louisiana-scale compensation under Louisiana law for

the wrongful death of his relatives, but also allows him

to recover damages under Uruguayan law for the wrong-

ful death of his aunt, a right not recognized under Loui-

siana law. It seemed that something had gone awry with

an analysis that applied an amalgam of laws which no

sovereign would apply to its own citizens. Having em-

barked on what I had envisioned as a brief dissent on

this point, and having read somewhat in the disputed

area, I now find myself fundamentally at odds with the

analysis employed by the panel (and approved by the ma-

1972 the Louisiana courts have not been called upon to apply the

doctrine to the situation presented here. As a federal court, we

can reasonably expect to see this issue again. In aircrash disasters,

as a rule, the defendant airline concedes liability. (Pan American

notes that the last reported mass aircrash disaster case in which

liability was contested was nine years ago. In re Air Crash at John

F.. Kennedy International Airport, 479 F.Supp 1118, 1120-21 (E.D.

N.Y. 1978). Thus, our court is prone to addressing a damages-only

conflict issue in diversity cases brought by plaintiffs foreign to the

forum, expecially in controversies arising from mass disasters.

Although the court did not take this case en banc to address the

choice of law decision, we are squarely presented with an oppor-

tunity to correct what I perceive as a faulty analysis by our court.

The majority would prefer to finesse the issue. In effect this will

saddle an unfortunate panel in the future with the difficult task of

sorting through the issue, guided in all probability by no definitive

statement from the Louisiana courts and a patchwork of ambiguous

and contradictory thoughts in this en banc decision. The rule in this

Circuit is that only through the en banc process will a panel opinion

be overruled. Thus, even if a majority of the Court should ulti-

mately disagree with the view adopted in a panel opinion, the

“prudential reason” for declining to decide this issue—that this is

a state law question—will still remain. Unless and until] the Louisi-

ana courts reach this precise issue, which they have not in the

past fourteen years, we are in danger of confirming the aphorism

that “Some courts live by correcting the errors of others and

adhering to their own.” Ellison v. Georgia R.R., 87 Ga. 691, 695-

96, 13 S.E. 809, 810 (1891).

53a

jority) that results in the application of Louisiana’s rules

governing compensation in the first place.

A.

We are bound in this diversity case to apply Louisi-

ana’s choice-of-law rules. Klaxon Co. v. Stentor Elec.

Mfg. Co., 318 U.S. 487, 61 S.Ct. 1020, 85 L.Ed 1477

(1941); Richards v. United States, 369 U.S. 1, 82 S.Ct.

585, 7 L.Ed.2d 492 (1962). Louisiana has adopted an

approach for resolving choice of law issues that incor-

perates both interest analysis and the principles embodied

in the Restatement (Second) of Conflict of Laws (1969).

Jagers v. Royal Indemnity Co., 276 Sc.2d 309 (La.1973).

Section 6 of the Restatement states the general princi-

ples that guide choice-of-law determinations: °

a. the needs of the interstate and international sys-

tems;

b. the relevant policies of the forum;

ce. the relevant policies of the other interested states

and the rélative interests of those states in the

determination of the particular issue;

d. the protection of justified expectations;

e. the basic policies underlying the particular field

of law;

f. certainty, predictability and uniformity of result;

and

g. ease in determination and application of the law

to be applied.

The Restatement further explains that the ‘forum

should seek to reach a result that will achieve the best

2 These principles apply when the choice of law is not specifically

governed by state statute. See e.g., Shaw v. Ferguson, 437 So.2d

319 (La.App.2d Cir. 1983).

54a

possible accommodation” of the relevant policies of all

other interested states, adding that “it is fitting that the

state whose interests are most deeply affected should have

its local law applied.” Restatement (Second) of Conflict

of Laws § 6 comment f (1969).

The first step in interest analysis is to determine

whether a “true” or “false” conflict exists. “A false con-

flict occurs when, after examining the content and ob-

jectives of the laws of states A and B relating to the

specific issues, it is found that only state A has an in-

terest in the application of its law and that state B has

no interest.” Jagers, 276 So.2d at 312 n.2 (citation

omitted). If a false conflict is found, the analysis ends

—simply apply the law of State A, the only one having

an interest. The Louisiana courts resolve a true conflict,

with reference to the Restatement, by applying the law

of the state with the “most significant relationship” to

the occurrence and the parties.* At this stage, one state

3 For example, the Restatement’s general rule for torts is:

(1) The rights and liabilities of the parties with respect to

an issue in tort are determined by the local law of the state

which, with respect to that issue, has the most significant rela-

tionship to the occurrence and the parties under the principles

stated in § 6.

(2) Contacts to be taken into account in applying the princi-

ples of § 6 to determine the law applicable to an issue include:

(3) the place where the injury occurred,

(4) the place where the conduct causing the injury occurred,

(5) the domicil, residence, nationality, place of incorporation

and place of business of the parties, and

(6) the place where the relationship, if any, between the

parties is centered.

These contacts are to be evaluated according to their relative

importance with respect to the particular issue.

Restatement (Second) of Conflicts of Laws § 145 (1969).

55a

is determined to have the “lesser interest” in applying its

law.*

The panel apparently found a false conflict. It deter-

mined that Uruguay had “no interest” in applying its

law, because the recovery under Louisiana law “equals

or exceeds” that available under Uruguayan law. “(I]t

is beyond the pale of reason to conclude that Uruguay

would have an interest in prohibiting the award, provided

no Uruguayan defendant is involved. We are persuaded

that the needs of the international system will be served

best in this instance by application of the law of Louisi-

ana.” 789 F.2d 1092, 1097.

On the issue whether Pampin should be allowed to re-

cover for the wrongful death of his aunt, however, the

panel employed the technique of depecage—splitting the

“issues” and subjecting each “issue” to a separate inter-

est analysis to resolve which state’s law should apply.

The panel separately analyzed Uruguay’s interest in ap-

plying that aspect of its wrongful death jurisprudence

which purportedly recognizes a nephew’s right to recover

for the death of an aunt. The panel concluded that be-

cause Louisiana law provides no such recovery, the law

of Uruguay should apply. Presumably, Uruguay’s inter-

est in affording this type of recovery for its citizen pre-

vails. Presumably also, Louisiana has a lesser interest or

no interest in extending the protections under its laws to

these non-Louisiana defendants.

B.

I begin my analysis by identifying the interests of

Louisiana and Uruguay, by reference to the policies of

those states that are at stake here. It is clear that the

4 We discover, however, the two steps are interrelated: whether

a state has “no interest,” because no relevant state policy is impli-

cated, depends not only on the content and objectives of its laws,

but also on the relationship of these policies to the controversy and

the parties—a question resolved in the second step.

56a

state where the plaintiff is domiciled has an interest

in seeing that its citizens are adequately compensated

for the effects visited upon them by the tortious conduct

of others. Brown v. DSI Transports, Inc., 496 So.2d 478

(La.App. 1st Cir.), writ denied, 498 So.2d 18 (1986).°

This implies that the domiciliary state has an interest in

applying its compensation scheme, as a minimum, for

the benefit of its residents.

The sovereign at the place of the wrong has an

interest in regulating conduct within its borders. That

interest, however, is not directly implicated in today’s

case, because both defendants have conceded liability;

the conflicts issue is narrowed to determining which

state’s rules should apply to compensation in wrongful

death cases. The interest of the place of the wrong in

applying its compensation scheme for the benefit of the

out-of-state plaintiff is elusive. It could be said that the

place of the wrong has an interest that some compensa-

tion be afforded, on the theory that this promotes deter-

rence of tortious conduct within its borders. Difficulties

with that theory aside,® the issue reduces to this: whether

the differential between a lower recovery under foreign

law and a higher recovery under local law would have

any effect on the prospective measures the defendants

5 The domiciliary state’s interest in insuring that its residents

are adequately compensated in wrongful death actions is well-

recognized. Mahfoud v. Eastern Airlines, Imc., 17 Av. Cas. (CCH)

"17, 714, 17, 715 (W.D. La. 1982), aff'd mem., 729 F.2d 777 (5th

Cir. 1984), 474 U.S. 213, 106 S.Ct. 586, 88 L.Ed.2d 522 (1985);

Guillory v. United States, 699 F.2d 781, 786-89 (5th Cir. 1983);

Gordon v. Eastern Airlines, Inc., 391 F. Supp. 31, 33-34 (S.D.N.Y.

1975); In re Air Crash Disaster Near Chicago, Ill., 480 F. Supp.

1280, 1283 (N.D.IIll. 1979), aff'd, 644 F.2d 633 (7th Cir. 1981) (the

domicile state has an interest in the administration of the dece-

dent’s estate and with the provision of adequate compensation to

the decedent’s surviving relatives. )

® This is premised on the assumption that one can logically speak

of the deterrence of unintentional tortious behavior.

57a

take to prevent this type of accident. I am unwilling

to conclude that this effect would be appreciable.

If recovery under Louisiana law exceeds that under

Uruguyan law, the situation does not present a false

conflict, but an “unprovided-for” case.’ The law of the

plaintiff’s state favors the defendant and the law of the

defendant’s state favors the plaintiff. A vacuum is

created because neither state is said to have an ‘interest”

in applying its law relative to the other.* It is patent

both that Uruguay has no interest in protecting this out-

of-state defendant and that Louisiana has no interest in

providing higher compensation than the foreign plaintiff

would receive in his home state forum.

The flaw in the panel’s analysis is in its unexamined

assumption that, having found that Uruguay had “no

interest” in prohibiting the potentially higher recovery

under Louisiana law, that Louisiana law should be ap-

plied. There is no reason for that assumption. Instead,

we must begin anew to ascertain which state’s law should

7B. Currie, Selected Essays on the Conflict of Laws 152-56

(1963). The majority begins its analysis with the depecage issue

and does not address this fundamental difference in our analyses:

in the first stage of the analysis, this case presents neither a “true”

or “false” conflict, but an “unprovided for” case, a distinction long

ago recognized by our brother Rubin, then on the district bench,

in Louisiana's approach to interest analysis. Ardoyno v. Kyzar, 426

F. Supp. 78, 83 n.14 (E.D. La. 1976) (citing Currie’s definition of

an “unprovided-for” case, but not reaching the issues presented in

such a case).

5 In the true-false conflict dichotomy, at least one state is “inter-

ested” in applying its laws; because such would significantly advance

its policies. When the application of that interested state’s law

would not hinder the policies of another contact state, the law of the

interested state should apply. See e.g. Jagers, 276 So.2d at 312 n.2

(a false conflict occurs when “it is found that only state A has an

interest in the application of its law and that state B has no

interest”) (attributing this language to Brainerd Currie) (em-

phasis added).

58a

fill the vacuum. The panel never took this second step.

Because it should have done so, I shall.

C.

To resolve unprovided-for cases, the Jagers decision

indicates Louisiana would look to the general choice-of-

law principles in Section 6 of the Restatement. Concern-

ing “relevant state policies,” Uruguay's jurisprudence

represents its views on what constitutes adequate and

just compensation for its citizens in a scheme it con-

siders fair to impose upon its own citizen tortfeasors.

Only tenuous theoretical bases support Louisiana’s in-

terest, as the place of the wrong, in advancing its

recovery scheme for the benefit of this plaintiff.

In the unprovided-for case, the “relative interests of

the states in the determination of the issues” do not

come into play: neither state has an interest in applying

its law relative to the other. Concerning the needs of

the international system, comity Goes not require more

respect for Uruguay's interest in this plaintiff than

that Uruguayan law be applied as a Uruguayan forum

would apply it, that he receive what his own sovereign

would grant him under its own law.

The place of the wrong may be said to have an altru-

istic interest in extending the benefits of its recovery

scheme to nonresidents. See, e.g., Labree v. Major, 111

R.I. 657, 306 A.2d 808 (1972). I detect, however, that

this “interest” is grounded in a one-sided view that it

is not unfair to apply to the defendant the law of the

place of the wrong when it affords the plaintiff a higher

recovery than does the domiciliary state’s law.* The

*In Labree, a Massachusetts plaintiff sued her Rhode Island

driver for injuries sustained in an automobile accident occurring in

Massachusetts. It was an “unprovided-for” case, because, Rhode

Island, the defendant-driver’s state. imposed ordinary negligence

standards with respect to guests—law unfavorable to the defendant

iJ

59a

other side of the coin must be acknowledged—it is not

unfair to apply the domicile state’s scheme, even though

it may afford a lower recovery. To fill the vacuum re-

flexively in unprovided-for cases with the law that maxi-

mizes recovery is unfair to defendants. Unlike most

economic situations, the damage suit is a classic zero-

sum game and hence is subject to a simple static anal-

ysis: what the plaintiff gains, the defendant loses. Yet,

today this Court in effect approves a “maximization of

recovery” rule: Whatever rule produces the largest ver-

dict is intrinsically preferable and should be chosen. I

am unable to square such a general presumption that a

plaintiff should always recover as much as possible with

any notion of even-handed justice. Such a rule that

mindlessly magnifies what one person can take from

another in a legal encounter has no more essential and

intrinsic merit than one which mindlessly minimizes it—

assuming that our concern is justice.

I find no indication that Louisiana espouses a recovery-

maximizing rule’ or that interest analysis justifies one.

Indeed, the point is not to minimize or maximize recovery,

but to accommodate relevant policies of the states who

are interested in the results of the litigation. The matter

leaps into focus the moment the shoe is placed on the

other foot: would we apply Uruguayan standards of

—and Massachusetts applied gross negligence standards—law un-

favorable to the plaintiff. The Rhode Island Supreme Court found

nothing wrong with holding its own citizens to a higher standard

of care than that imposed by the states to which they travel, “no

matter who may be injured by their misconduct.” 306 A.2d at 818.

1° See, e.g., Lee v. Ford Motor Co., 457 So.2d 193 (La. App. 2d

Cir.), writ denied, 461 So.2d 319 (La. 1984) (applying unfavorable

Louisiana law to Louisiana plaintiff); Burns v. Holiday Travels,

Inc., 459 So.2d 666 (La. App. 4th Cir. 1984) (applying unfavorable

Florida law to Louisiana plaintiff); Decatur v. United States

Fidelity & Guar. Co., 464 So.2d 854 (La. App. 5th Cir. 1985)

(denying benefits of Louisiana law to temporary Louisiana resi-

dent).

60a

compensation to the relatives of Louisiana residents

killed in Uruguay?" Interest analysis requires us to

examine both Uruguay's and Louisiana's interest in the

controversy and the parties. The domiciliary state's

interest in applying its rules affording higher recovery

is strong, but that interest does not necessarily predomi-

nate in a true conflict case, ¢.g., when the plaintiff, whose

home state law is favorable to him, acts out-of-state. and

the defendant acts only in a jurisdiction whose law favors

him. See e.g., Burns v. Holiday Travels, Inc., 459 So2d

666 (La.App. 4th Cir.1984).

Because in unprovided-for cases it is fair to the plain-

tiff to apply his home state's compensation scheme, forum

qua forum interests convince me that the domiciliary

state’s rules should fill the vacuum. Airerash and other

mass disasters typically present both domestic and inter-

national conflicts in compensation issues, Typically also,

unprovided-for cases are presented when any forum af-

fording jurisdiction over the defendants) offers the po-

tential for higher recovery than does the plaintiff's home

state forum."* Forum qua forum interests indicate a need

for the predictable application of the domiciliary state’s

recovery in cases like this one. Concededly, the courts will

encounter difficulties in finding and applying foreign law

when the forum state is not the state of domicile. In the

long term, however,—and most clearly of all in cases

(such as this) where damages alone are at issue—cer-

tainty and uniformity are enhanced when compensation

! The question, when appended, sheds light on the depecage issue.

Let us assume all Uruguayan compensation rules at least “equal”

those of Louisiana: would we apply Uruguayan standards of com-

pensation to the relatives of Louisiana residents killed in Uruguay,

even if Uruguay, but not Louisiana, allows recovery by a nephew

or niece for the death of an aunt?

% From this accident alone, foreign plaintiffs filed 52 actions in

the United States on behalf of 42 foreign residents who died in

the crash.

6la

is predictably based on the domicile’s scheme, with the

fortuitous place of the accident and the availability of

jurisdiction in forums with plaintiff-favoring laws are

removed from the calculus. In the end, the interest in

judicial efficiency is served: the predictable choice of the

domicile state’s law should encourage settlement and dis-

courage forum shopping.”

D.

I return to the use of depecage in this case."* This

technique is a recognized” and valuable tool in interest

analysis, but one highly subject to producing distorted

results. In splitting the issue as it did, the panel created

a classic depecage problem, that of producing a result

different from that obtainable under the legal system in

either contact state, i.e. Louisiana or Uruguay. This re-

sult alone signals the need for reexamination of our

choice of law or laws. The touchstone to the reevaluation

is whether this result “produces a better accommodation

of relevant state policies than would mirroring the intra-

state result in any of the contact states and consequently

! When the laws in putative conflict are perceived as affording

equivalent recoveries, the forum interest in efficiency points to

application of the familiar local law. The values of certainty and

predictability, however, point to the application of domiciliary law

if the comparison of laws shows discrepancies.

10 1f the suggested choice of the domiciliary state's compensation

scheme is adopted, it is ultimately unnecessary to reach the

depecage issue in cases such as this. I reach it here because it is

an integral part of the majority's analysis.

* For example, Section 145 of the Restatement provides: The

rights and liabilities of the parties with respect tc en isewe in tort

are determined by the local law of the state which, with respect

te that ixewe, has the most significant relationship to the occurrence

and the parties under the principles stated in £ 6. Restatement

(Second) § 145 (1969) (emphasis added). See aleo Reese. Depecage:

A Common Phenomenon in Choice of Law, 73 Colum. L. Rev. 58

(1973).

is neither irrational nor unfair to the losing party.” R.

Weintraub, Commentary on the Conflict of Laws, 73 (3d

Ed.1986}.

In splitting the issue as it did, the panel created a true

conflict. The panel correctly concluded that Uruguay had

an interest in applying its rule that affords a greater

recovery. It failed to acknowledge, however, that Louisi-

_ ana has an interest in protecting not just its own resi-

dent-defendants but also entrepreneurs doing business in

its state. Karavokiros v. Indiana Motor Bus Co., 524

F.Supp. 385, 387 n.1 (E.D.La. 1981) (eiting B. Currie,

Selected Essays on the Conflict of Laws, 704-05 (1963) ).

Sound reasons support that interest, not the least being

that one who is plundered in the courts of a state will,

insofar as he has a choice, minimize his contacts there.

While that interest may not always prevail in a true

conflict, to fail to recognize it, once again, gives effect to

a maximum recovery rule: the overall effect of the

panel’s choice of law decisions was to impose on the de-

fendants all the burdens of Louisiana law and yet deny

them its benefits.

Several other factors cast suspicion on the need to

“accommodate” Uruguay's interest by creating this amal-

gam of laws. It was a matter of dispute whether Uru-

guay would recognize Pampin’s alleged right to recover

either wrongful death damages or his right to maintain

4 survival action grounded in his decedent aunt’s per-

sonal injury claims.” There were other nieces and

nephews whose claims the court had earlier dismissed

without prejudice. If Uruguay recognizes a right to re-

cover in any of these claimants, there is a high probabil-

ity these relatives will raise these claims in a Uruguayan

court.” Given these circumstances, the process of “ac-

commodating” the Uruguayan interest in applying this

narrow rule embedded in its compensation and succession

scheme was unwarranted.”

1? The aunt had no children. If the wrongful death claims are

cognizable under Uruguayan law, Pan Am remained subject to

defending these cousins’ claims in a Uruguayan forum. Does

Uruguay have an “interest” in the survival action? You bet your

family it does. If Uruguay recognizes this claim, it has an interest

in distributing the proceeds according to its own succession scheme.

* Beyond this specific circumstance, I question the need for

depecage when compensation is the only issue. The majority states

that Louisiana law requires a separate interest analysis of each

significant issue in the case, relying on Silver v. Nelson, 610 F.

Supp. 505, 513 (E.D. La. 1985). This is true, but the Silrer Court's

language warrants full quotation:

This two-part analysis must be performed separately for every

significant issue in the case, for, under interest analysis, “cases

can be expected to arise with some frequency where different

states have the greatest concern in the determination of differ-

ent issues.”

Id. at 513 (citing Ardoyno v. Kyzar. 426 F. Supp. 78, 81 (E.D. La.

1976) ; quoting Reese, Depecage: A Common Phenomenon in Choice

of Law, 73 Column. L. Rev. 58, 59 (1973)).

On the question of what constitutes different issues, 1 again part

ways with the reasoning inherent in the panel and majority opin-

ions. When the conflicts question involves liability issues—-which

imply that the place of the wrong has an interest—-and compensa-

tion issues—which imply that the domicile state has an important

interest—the court’s assessment of these interests, when they com-

pete, is like comparing apples with oranges. So long as the end

results are reexamined, depecage can provide a better accommoda-

tion of a state’s interest by isolating relevant policy concerns under-

lying different issues. When the only issues concern damages aris-

ing from an unintentional tort, and thus the only relevant policies

————

64a

II.

This case also illustrates a need to reassess our re-

view for excessiveness of jury awards made by United

States juries in foreign cases. I do not quarrel with the

considerable circumspection with which an appellate

court reviews jury awards. See. e.g.. In re Air Crash

Disaster Near New Orleans (Giacontieri). 767 F.2d 1151,

1155 (5th Cir.1985). We look first to the facts in the

record; then, for “rough guidance” we examine past

awards for similar injuries. 7d. at 1156. In reviewing

awards made under foreign law, the rough guidance to

which we look for comparative purposes should be sup-

plied by the same culture that supplies the law. It ean-

not be gainsaid that the plaintiff here has obtained a

bounteous—indeed, an all but ludicrous—windfall under

Uruguayan standards. The record indicates that the

highest comparable Uruguayan award ever made was in

1982, for a total of approximately $17,000; that case

involved claims by a widow and four children for the

loss of their husband and father. The jury awarded

Pampin $250,000 and $150,000 for the loss of the love

and affection of his mother and sister respectively. Here,

by Uruguayan standards, is compassion run amok. Our

courts should at least attempt to approximate the result

obtainable under the plaintiff’s home state law, in the

plaintiff’s home state forum. For reasons stated above,

In cases like today’s, this result would be fair to both

are those underlying a state’s compensation scheme, we do not

necessarily need a section-by-section comparison of the orange.

Wrongful death claims, in particular, present a gold mine of

issues that can theoretically be split into subissues for choice of

law purposes, including rules governing (1) defenses available to

the defendant, (2) damages, including types of compensable losses,

(3) persons who may bring the action, and (4) the beneficiaries

who will share in the recovery. The Restatement generally counsels

that the law chosen to govern the right of action for wrongful

death, under § 175, should govern these four enumerated subissues,

See Restatement (Second) § 176-180.

il

65a

plaintiffs and defendants. Moreover, it is counter to

forum qua forum interests to provide “windfall” awards

which serve as the impetus for forum shopping when it

is highly likely that the optimal forum for proceedings

concerned only with compensation is that of the plaintiff's

home state.

My analysis of our review for excessiveness assumes

that foreign law supplies the rules governing damages

issues. It also illustrates that the choice of law and the

appropriateness of the jury award are bound together;

both are inextricably tied to the forum non conveniens

decision, in which the court grants or denies the foreign

plaintiff a United States forum, which in turn effectuates

the forum’s choice of law if it retains the case or nullifies

that choice if it dismisses the claim. Although we sep-

arately analyze each of the three issues, they form a

seamless web, which is distorted by a flawed decision in

any of the three.

GARZA, Circuit Judge, concurring in part and dis-

senting in part:

While I concur in the majority of Judge Hill’s opinion,

I join in Judge Garwood’s concurring opinion as to foot-

note 25 since I do not believe such footnote is necessary

to the decision on the issue of forum non conveniens in

this case.

I dissent on the issue of allowing plaintiff Pampin to

recover for the death of his aunt. While I joined the

decision of the panel on this issue, further reflection has

caused me to change my view.

The majority seems to think that questions of state law

are not worthy of en banc consideration. We, unlike the

Supreme Court, do not take a case to pass on only one

narrow issue. As the majority concedes, when our court

takes a case en dance it vacates the panel’s opinion and

66a

judgment. We are therefore free to correct anything that

the panel held and resolve any issue left hanging, even

though by itself it would not have deserved en banc con-

sideration.

The plaintiff Pampin and his counsel sought the juris-

diction of a federal court sitting in Louisiana in a diver-

sity case. They knew, as the panel and the majority now

hold, that Louisiana law would apply. They knew that

under Louisiana law plaintiff Pampin could not have re-

covered for the death of his aunt. Plaintiffs such as Pam-

pin who choose their forum should be held to recover only

what that forum can give them under the law of the

forum. As thoroughly covered by the majority and the

dissent, by choosing Louisiana as the forum plaintiffs

were able to get higher awards than they would have

gotten in their native Uruguay. By the same token they

should have taken the bitter with the sweet and realized

that there was no cause of action in Louisiana for recov-

ering for the death of an aunt.

My position is very short and sweet. Once a_proper

forum is chosen by a plaintiff he must abide by the laws

of that forum for all purposes. When a plaintiff chooses

the forum he knows what law is available to him in that

forum. A court would not then have to indulge in de-

ciding an “interest analysis/most significant relation-

ship” approach to choice-of-law decisions to determine

whether or not there is a true or false conflict of inter-

est or adopt the depecage theory. If it had been a Loui-

Siana citizen who lost an aunt in the crash under consid-

eration, he would never be able to recover for the loss of

the aunt; no matter what theories of recovery a court

could think of, a Louisiana citizen-plaintiff would never

ever obtain what plaintiff Pampin did.

My view would bring certainty, predictability, and

uniformity of result in accordance with section 6(f) of

the Restatement (Second) of Conflict of Laws and would

certainly bring about consistent determination and ap-

67a

plication of the law to be applied as per section 6(g) of

the Restatement. I probably will be a lone voice erying

in the wilderness, but I believe that my approach of tell-

ing a plaintiff that once he chooses a forum and it is de-

cided that the law of that forum will control, he is choos-

ing his forum with his eyes wide open knowing what he

can and cannot recover under the law of that forum.

I therefore dissent in allewing Pampin to collect dam-

ages for the death of his aunt in a court sitting in Loui-

siana.

JOHNSON, Circuit Judge, concurring:

I concur in all of Judge Hill’s opinion except footnote

25. I do not join in footnote 25 for the reasons stated

in Judge Garwood’s concurring opinion.

GARWOOD, Circuit Judge, concurring in part and

dissenting in part:

I concur in all of Judge Hill’s opinion except footnotes

25 and 38.

In what almost amounts to an afterthought, we employ

a footnote to partially overrule more than fifteen pub-

lished opinions of this Court decided within the last six

years. The Jones Act issue is simply not before us in

this case, and has not been raised, briefed, or argued.

I am not aware of any of our Jones Act cases where the

result would have been different had a more clearly

Reyno-oriented analysis been followed. It would be far

preferable, in my view, to determine the interplay of

Reyno and the Jones Act in a case where the question is

squarely presented and makes a difference to the result.

I therefore do not join in footnote 25.

As to footnote 38, I join in Judge Gee’s dissent.”

a. agree that the question there considered is one of Louisiana

law which we did not take this case en banc to resolve. However,

68a

PATRICK E. HIGGINBOTHAM, Circuit Judge, con-

curring in the judgment:

should we have re-examined the panel’s treatment of the

Louisiana choice of law issue, an issue we did not take

this case en bane to reconsider and which has been treated

only in the opinion writing, able though that is.

tration. In more direct terms, I read Hanna v. Plumer,

380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), and

Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356

places an arguably core decision of the state meant to

assure its residents a forum in the United States,

Of course, federal courts have an interest in self-

administration; they do in every Erie decision. But that

interest must be viewed with caution when it lacks the

presented by this appeal, I deem it appropriate to indicate My view

in respect to it.

69a

support of the Rules Enabling Act mandate or an inde-

pendent constitutional interest such as the seventh

amendment; these are important, sometimes the disposi-

tive, variables in an Erie analysis.

On the state side, it must not be forgotten that Lou-

isiana has no doctrine of forum non conveniens. That is,

Louisiana has not accepted the idea that its citizens may

be denied the right to a court in the United States for

reasons of efficiency or to otherwise husband judicially

found resources. We are not choosing between a federal

and state rule in circumstances where the federal for-

mulation of a rule, while securing interests similar to

a state rule, leads to a different result. Rather, we are

asked to reject a decision by Louisiana that lies closer

to substance on the spectrum of substance to procedure

than would an adopted rule of forum non conveniens.

I

The majority states that “our task is to evaluate

whether applying federal forum non conveniens in this

case advances or hinders the ‘twin aims’ of Frie.” In

Hanna, the Court identified the twin aims of Erie as

(1) discouragement of forum shopping and (2) avoid-

ance of the inequitable administration of the laws. Hanna,

380 U.S. at 468, 85 S.Ct. at 1142. The majority con-

tends that the second aim, avoidance of the inequitable

administration of the laws, can refer either to extrinsic

considerations of the fairness of the competing state and

federal rules to the parties, or to intrinsic considerations

of the federal forum’s own interests. The majority con-

cludes that “Hanna intends the latter.” But Hanna was

concerned about the unfairness to citizens of the forum

state when different rules are applied in state and fed-

eral courts in diversity.

When the Henna court spoke of the twin aims of Eve,

it also stated, “the Frie rule is rooted in part in a real-

ization that it would be unfair for the character or re-

70a

sult of a litigation materially to differ because the suit

had been brought in a federal court.” Jd. at 467, 85

S.Ct. at 1141. The Hanna court then quoted from Ere

to explain its point:

Diversity of citizenship jurisdiction was conferred

in order to prevent apprehended discrimination in

state courts against those not citizens of the State.

Swift v. Tyson [41 U.S. (16 Pet.) 1, 10 L.Ed. 865

(1842)] introduced grave discrimination by non-

citizens against citizens. It made rights enjoyed

under the unwritten ‘general law’ vary according to

whether enforcement was sought in the state or in

the federal court; and the privilege of selecting the

court in which the right should be determined was

conferred upon the non-citizen. Thus, the doctrine

rendered impossible equal protection of the law.

Id. (quoting Erie Railroad v. Tompkins, 304 U.S. 64,

74-75, 58 S.Ct. 817, 820-21, 82 L.Ed. 1188 (1988) ).

The Hanna court then added, “The [Erie] decision was

also in part a reaction to the practice of ‘forum-shopping’

which had grown up in response to the rule of Swift-

Tyson.” Id. Thus, the twin aims of Erie, according to

the author of Hanna, are discouraging forum-shopping

and avoiding discrimination against citizens of the forum

state by non-citizens.

Further evidence that the Hanna court was referring

to unfairness to citizens of the forum state when it

stated that the second aim of Erie was avoidance of in-

equitable administration of the laws is found in footnote

9 of the opinion:

Erie and its progeny make clear that when a federal

court sitting in a diversity case is faced with a ques-

tion of whether or not to apply state law, the impor-

tance of a state rule is indeed relevant, but only in

the context of asking whether application of the rule

would make so important a difference to the charac-

7la

ter or result of the litigation that failure to enforce

it would unfairly discriminate against citizens of

the forum State, or whether application of the rule

would have so important an effect upon the fortunes

of one or both of the litigants that failure to en-

force it would be likely to cause a plaintiff to choose

the federal court.

Id. n. 9. (emphasis added). Nothing in Hanna suggests,

as the majority does, that “inequitable administration of

the laws” describes the interests of the federai forum.

The majority avoids the constraint of Hanna’s text

and argues that the “equal protection” interpretation

cannot be correct because it

would take federal courts into an analysis of the

“fairness” of the state rule, in other words, its wis-

dom and propriety. This could only lead to norma-

tive assertions by federal courts that a given state

law cannot be applied because to do so would be

“inequitable.” But it was precisely this normative

role, this role of federal courts as provhets of a

“brooding omnipresence,” that Erie condemned.

Therefore, Hanna’s second aim must refer to the

federal courts’ own interests in equitable self-

administration.

I am not persuaded because as I read it, Hanna made

clear that the “inequitable administration” concern does

not involve a bald evaluation of the fairness of the state

rule (an exercise that would be rightfully rejected) ;

rather it asks “whether application of the rule would

make so important a difference to the character or result

of the litigation that failure to enforce it would unfairly

discriminate against citizens of the forum State.” /d.

n. 9 (emphasis added).

The twin aims of Erie are not competing aims. Indeed,

they arise from the same source and serve related pur-

poses. If a federal court in diversity applies a tort rule

72a

different from the state rule, and the federal rule re

quires a result opposite to what would be had in state

court, then litigants will shop for the forum with the rule

favoring their position, and a citizen of the state being

sued in federal court will not have the same protection

of the laws as he would had he been sued in his state’s

court. This says nothing of the “wisdom and propriety”

of the tort rule.’ I take comfort from the Hanna Court’s

purpose in identifying the twin aims of Erie: to explain

the contours of the “outcome-determinative” test. The

fact that different federal and state rules result in con-

flicting outcomes matters only to the extent that it gives

rise to forum shopping or unfair discrimination against

citizens of the forum state.

Finally, the Hanna Court’s very application of the

twin-aims-of-Evie analysis to the issue before it suggests

that the Court’s focus was upon forum-shopping and dis-

crimination against citizens of the forum state, rather

than the needs of the federal forum qua forum. The is-

sue in Hanna was whether service of process must be

made in the manner prescribed by state law or that set

forth in Fed.R.Civ.P. 4(d) (1). Although the service had

satisfied the federal requirements, it did noi comply with

state law. The Court, after discussing the two purposes

served by the outcome-determinative test, noted:

Though choice of the federal or state rule will at

this point have a marked effect upon the outcome of

the litigation, the difference between the two rules

would be of scant, if any, relevance to the choice of

a forum. Petitioner, in choosing her forum, was not

presented with a situation where application of the

1 Ironically, however, the doctrine of forum non conveniens does

take the federal courts into an analysis of the “wisdom and propri-

ety” of exercising jurisdiction. The application of forum non

conveniens in conjunction with removal jurisdiction effectively im-

poses on the citizens of the forum state the federal court “wisdom”

not to exercise jurisdiction.

73a

state rule would wholly bar recovery; rather, ad-

herence to the state rule would have resulted only

in altering the way in which process was served.

Moreover, it is difficult to argue that permitting

service of defendant’s wife [the federal rule] to take

the place of in-hand service of defendant himself

[the state rule] alters the mode of enforcement of

state-created rights in a fashion sufficiently ‘substan-

tial’ to cause the sort of equal protection problems to

which the Erie opinion alluded.

~Jd. 380 U.S. at 469, 85 S.Ct. at 1142-43 (footnotes

omitted).

I see two interests weighing in favor of applying state

law—the twin aims of Erie. But as a result of its inter-

pretation of Hanna, the majority drops away the related,

second interest—avoidance of discrimination against citi-

zens of the forum state.

In refusing to apply forum non conveniens, Louisiana

has decided to provide greater protection against foreign

actors, through access to local courts, than is available

in federal courts. Application of the federal rule in

diversity will have the potential of depriving the forum

state’s citizen of the material benefit of a convenient and

friendly forum. Thus, although this case involves a twist

on the typical Erie case—the nonresident defendants re-

ceive the benefits from the choice of forum—the attend-

ing discrimination against citizens of the forum state is

no less real.

II

Just as the majority’s interpretation of the twin aims

of Erie places too little emphasis on the state law inter-

ests, it likewise places too much emphasis on the federal

forum interests in self-administration. The majority

argues that “Hanna gives us good reason to hold that

federal courts have inherent powers under Article III

to displace state laws on matters involving their basic

Tia

competence as courts.” The majority reasons that be-

cause Hanna “held that Congress has the power to over-

ride state law by the Federal Rules in ‘matters which,

though falling within the uncertain area between sub-

stance and procedure, are rationally capable of classifica-

tion as either,’” (quoting Hanna, 380 U.S. at 472, 85

S.Ct. at 1144) (emphasis added), the federal courts have

a general power in matters involving their basic com-

petence as courts to override state laws. This slights the

fact that Hanna involved the question of the validity of

a federal rule of civil procedure under the Enabling Act.

As the Court in Hanna noted:

[I]n cases adjudicating the validity of Federal

Rules, we have not applied the York rule or other

refinements of Erie, but have to this day continued

to decide questions concerning the scope of the En-

abling Act and the constitutionality of specific Fed-

eral Rules in light of the distinction set forth in

Sibbach [v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422,

85 L.Ed. 479 (1941) }.

Hanna, 380 U.S. at 470-71, 85 S.Ct. at 1143-44 (cita-

tion omitted). The Court further explained that

[wlhen a situation is covered by one of the Federal

Rules, the question facing the court is a far cry

from the typical, relatively unguided Erie choice:

the court has been instructed to apply the Federal

Rule, and can refuse to do so only if the Advisory

Committee, this Court, and Congress erred in their

prima facie judgment that the Rule in question

transgresses neither the terms of the Enabling Act

nor constitutional restrictions.

Id. at 471, 85 S.Ct. at 1144 (footnote omitted); see also

Burlington Northern Railroad v. Woods, US. ’

, 107 S.Ct. 967, 970, 94 L.Ed.2d 1, 7 (1987) (Fed.

R.App.P. 38 applies in diversity suit instead of con-

flicting state rule). It was in this context then that the

Court in Hanna held that

Clause) carries with it congressional power to make

rules governing the practice and pleading in those

courts, which in turn includes a power to regulate

matters which, though falling within the uncertain

area between substance and procedure, are ration-

ally capable of classification as either.

Id. 380 U.S. at 472, g5 S.Ct. at 1144. However, Hanna

does not give federal courts the power, beyond the man-

date of the Enabling Act or other such statute, “to dis-

place state laws on matters involving their basic com-

petence as courts” without being subjected to the stric-

tures of Erie.

The majority argues that such power is inherent in

article III, but the Court in Hanna stated that the Con-

stitution placed in the hands of Congress the primary

power to make rules governing the practice and proce-

dure in federal courts. Id. at 473, 85 S.Ct. at 1145;

see also C. Wright, A. Miller & E. Cooper, 19 Federal

Practice and Procedure, ¢ 4509 at 140 (1982). 1 con-

cede that a federal court possesses a secondary power of

self-management under article III. But I do not think

the forum non conveniens doctrine, which undoubtedly

falls into the arguable area between substance and pro-

cedure, is entitled to the same presumption of validity

in diversity as the Federal Rules of Civil Procedure.

Rather, forum non conveniens must survive, if at all,

under the standard of Erie and at its progeny. We

should look to Byrd v. Blue Ridge Rural Electric Co-

operative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953

(1958), rather than Hanna, for the proper Erie analysis.

Ill

In Byrd, the plaintiff, an employee of a contractor that

was working for a utility company, was injured while

connecting power ‘ines for the utility. The plaintiff

76a

brought a diversity suit against the utility for negligence.

The utility asserted as an affirmative defense that the

plaintiff was its employee within the meaning of the

South Carolina Workmen’s Compensation Act, and the

plaintiff's exclusive remedy was thus compensation bene-

fits under the Act. The Erie question was whether the

factual issues raised by the affirmative defense were to

be decided by the judge or the jury. State law required

the judge alone to decide on the evidence whether a de-

fendant was a statutory employer. Federal law required

that all disputed questions of fact be decided by the jury.

The Supreme Court held that federal law applied.

The Byrd Court employed a three-factor balancing test

to conclude that federal law applied: (1) the significance

or substantive character of the state rule under state law

and (2) the likelihood of different outcomes. were weighed

against (3) the importance of the federal interests or

policies underlying the competing federal rule. Byrd, 356

U.S. at 535-40, 78 S.Ct. at 899-902. In weighing these

interests the Court noted that the state rule did not rest

on any special policy of the state compensation law: nor

was the choice of rules here likely to give rise to forum-

shopping. On the other hand the Court identified impor-

tant federal interests at stake:

The federal system is an independent system for

administering justice to litigants who properly in-

voke its jurisdiction. An essential characteristic of

that system is the manner in which, in civil common-

law actions, it distributes trial functions between

judge and jury and, under the influence—if not the

command—of the Seventh Amendment. assigns the

decisions of disputed questions of fact to the jury.

Id. at 537, 78 S.Ct. at 901 (footnotes omitted; citation

omitted).

The Fifth Circuit considered similar questions in Boe-

ing v. Shipman, 411 F.2d 365, 369-70 (5th Cir.1969) (en

77a

banc), and Jones v. Benefit Trust Life Insurance Co., 800

F.2d 1397, 1400 (5th Cir.1986). In Boeing, the issue was

whether the federal courts should apply a federal rather

than a state test to determine the sufficiency of the evi-

dence to create a jury question. The court, relying on

Byrd and Planters Manufacturing Co. v. Protection Mu-

tual Insurance Co., 380 F.2d 869 (5th Cir.), cert. denied,

329 U.S. 930, 88 S.Ct. 293, 19 L.Ed.2d 282 (1967), held

that the federal test applied in diversity cases. The court

reasoned that “{flederal courts must be able to control

the fact-finding processes by which the rights of litigants

are determined in order to preserve ‘the essential charac-

ter’ of the federal judicial system.” Boeing, 411 F.2d at

369-70. The court had reached the same result in

Planters. There Judge Tuttle explicitly acknowledged the

impact of the seventh amendment on the question: “If

the seventh amendment requires uniformity in the exer-

cise of the jury trial right in the federal courts, surely

that subsumes uniformity in the exercise of the power to

direct a verdict or grant a judgment n.o.v.” Planters,

380 F.2d at 871.

In Jones, the Erie question again involved the court's

division of responsibility between judge and jury. The

state law required that the trial judge first determine for

himself that a defendant insurer had no “reasonably

arguable” basis for denying coverage before submitting

the question of punitive damages to the jury. The Fifth

Circuit held, without discussion, that the federal rule gov-

erned. Jones, 800 F.2d at 1400. As in Byrd, Planters,

and Boeing, the seventh amendment’s influence in Jones

is undeniable. Thus, in my view, Boeing and Jones are

correct not, as the majority suggests, “because the rela-

tionship between judge and jury goes to the heart of the

independence and integrity of an Article II court,” but

because the seventh amendment sets one standard for all

federal courts for defining the relationship between judge

and jury. This interest in uniformity is a powerful fed-

78a

eral interest that overwhelms the limited state interest in

state rules that would leave for jury decision more than

is constitutionally required, rules that implement but are

not integral to policies of substance.

IV

Finally, I disagree with the suggestion in the majority

opinion that Byrd gives too little recognition to the fed-

eral interest in self-administration and that Hanna gives

more; that under the authority of Hanna, we ean dispense

with Byrd altogether.

In my view the Supreme Court’s cases must be read

together. As Professor Wright put it: “Although Hanna

is the Supreme Court’s last major contribution to the Erie

doctrine, the other principal cases—Erie, York, and

Byrd—certainly cannot be disregarded. The four deci-

sions build upon and inform one another.” 19 Wright,

Miller & Cooper, supra, § 4504 at 44.” As I have ex-

plained, Hanna gives more weight to federal forum in-

terests only in the sense that the Enabling Act gives

more. But Hanna is explicit that in cases not arising

under the Enabling Act, we must look to Guaranty Trust

Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079

(1945) (state statute of limitations bars diversity suit)

and Byrd. Hanna, 380 USS. at 469-70, 85 S.Ct. at

1142-43.

* Professor Wright in his separate discussion of forum non

conveniens in a different volume, states: “Although the Supreme

Court has repeatedly found that it did not need to decide whether

state notions of forum non conveniens were binding on a federal

court in a diversity action, it seeems quite clear that they ought

not to be and that these are matters of the administration of the

federal courts, not rules of decision, so the state rules cannot be

controlling.” 15 Wright, Miller & Cooper, supra, § 3828 at 293-94

(footnotes omitted); but he there addresses a choice between

federal and state rules not the use of a federal rule when a state

has rejected the concept.

79a

Byrd gives all the recognition to federai forum inter-

ests that is warranted under the Constitution. In most if

not all Erie eases, the federal forum’s interest in self-

administration is present. Byrd suggests that this inter-

est in self-administration outweighs the policies underly-

ing the state law and the interests embodied in Erie only

when it is bolstered by other uniquely federal interests—

in Byrd the seventh amendment. Indeed, five years after

the decision in Byrd, the Supreme Court held that fed-

eral rather than state l

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