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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1032

## Text

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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

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FLIIMING, IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILT Be ISSUED.

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4

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 ' °
' ? : ‘ , : , , ] +
< PveCay SUS ilined as ad resu Ul his acciaen
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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 th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0654%3A2. Public record. Not legal advice.