Petition for Writ of Certiorari — United Airlines, Inc. v. Hosaka, Individually and on Behalf of the Estate and Heirs of Hosaka

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Supreme Court, U.S.

\ ) FILE®

02 947 DEC 1 72002

No a

OPPIGE-OF THE CLERK

Jn the

Supreme Court of the Anited States

UNiTepD AIRLINES, INC. AND UAL CorporaTION,

Petitioners,

¥.

Katsuko HosaKA, INDIVIDUALLY AND ON BEHALF OF

THE ESTATE AND Heirs OF SADAO HosaKA, ET AL.,

Respondents.

On PETITION For Writ OF CERTIORARI

To Tue UNITED STATES Court OF APPEALS

For THe Ninta Circuit

PETITION FOR WRIT OF CERTIORARI

CLINTON H. CoDDINGTON

Counsel of Record

RICHARD G. GROTCH

CoppDINGTON, Hicks & DANFORTH

555 Twin DOLPHIN DRIVE

Surre 300 es

Repwoop Ciry, CA 94065

(650) 592-5400

Counsel for Petitioners

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTION PRESENTED FOR REVIEW

In the case of international transportation of persons

performed by aircraft for hire, any action seeking to recover

damages for bodily injuries suffered as a result of an accident

on board an aircraft, or in the course of any of the operations

of embarking or disembarking, are governed exclusively by

the Warsaw Convention. The question presented in this case

is:

Whether the doctrine of forum non conveniens is a

procedural tool which is prohibited in cases governed by the

Warsaw Convention?

PARTIES TO THE PROCEEDING

Petitioners

Petitioners are United Airlines, Inc. and UAL

Corporation. UAL Corporation is a publicly traded company

and is a holding company whose principal subsidiary is

United Airlines, Inc. There are no publicly held companies

which own ten percent or more of petitioners’ stock.

United Airlines, Inc. and UAL Corporation were the

defendants in the District Court and Appellees in the Ninth

Circuit Court of Appeals.

Respondents

The following persons are individual citizens of Japan

who are also believed to reside in Japan. They are not known

to have any corporate affiliations. These individuals were the

plaintiffs in related cases in the District Court and Appellants

in the consolidated appeals before the Ninth Circuit Court of

Appeals:

Kaisuko Hosaka, individually and on behalf of the

Estate and Heirs of Sadao Hosaka, Keiko Hirase, Shuichi

Inako, Hisako Inako, Osamu Inako and Hiroshi Inako, a

minor, by and through his guardian ad litem, Shuichi Inako,

Kaori Ito, Takamasa Kataura, Machie Taira, Masaki Konuma,

Shuichito Minami, Yuriko Minami and minors, Takahiro

Minami and Tomohiro Minami, by and through their guardian

ad litem Shuichiro Minami, Nobuaki Mizuno, Takako

Mizuno, Takashi Onishi, Junko Onishi, Masaya Onishi and

Mihiko Onishi, Nubuo Shiga, Kimee Shiga, Nobuyuki

Tanaka, Kinuyo Tanaka, Yukiko Tanaka and Makiko Tanaka,

Koji Teshima, Kumiko Teshima, Izumi Tosaka, Takeo

EE ————

ee a ee ee ee ae

Se ss

Yoshikawa, Kimiko Yoshikawa, Yae Yoshikawa, Ayako

Yoshikawa, Yuki Yoshikawa, Miyoko Nakazato, Takehito

Yoshikawa, Nami Yoshikawa, a minor and Chizuru

Yoshikawa, a minor by and through their guardian ad litem

Takehito Yoshikawa, Kozo Yamada, Isa Yamada, Msahiko

Yamada and Chizuru Yamada.

iii

TABLE OF CONTENTS

Question Presented for Review .................. i

Petree OP GO PHONON 6g vce cee raves seessens li

eee CD 6 heh bn bo be Cia ees ewes iv

See Oe 0 5 Fh as cer eee ena es ben

CE I vo. is 0 a 650 ae eee eee 1

Sembememt OF FURIGICUION . wc eee ec ee eee 1

Treaty Proviesoms TRVOIVGG .. ww. cc ere cecee 1

gg Bt POTTER TE CTE T TTC ELE i me

Reasons for Granting the Petition ............... 5

I. Whether the Doctrine of Forum Non

Conveniens Is Available in Cases Governed by

the Warsaw Convention Is a Question of

Recurring Importance on Which the Circuits

RO 6.5 A eee ods eee Ae 5

A. The Decision Below Is In Direct Conflict

With Decisions Rendered by the Fifth Circuit

Court of Appeals and the Second Circuit Court

OE I 6b bs Sik eb aoe ee 5

B. The Decision of the Court Below Is

NN sy da 6 a ee ee G

1. The Court Erroneously Proclaimed

Article 28 Ambiguous ............. 9

2. The Court’s Interpretation Ignores

FG TD 6-0 0-2 oo ou 6 os oe cc cK 10

3. The Court’s Interpretation Purports

To Advance, But Actually Impedes,

The Purposes of The Treaty ......... 12

4.The “Postratification Understanding”

Cited By The Court Undermines The

Court’s Interpretation Rather Than

WONT 6 bb Oxreieec eve recede 14

II. ee ree Fe OC Er eer: 19

Appendix

Appendix A - Ninth Circuit Opinion

il ria EERE TEEPE OT OE eee

Appendix B - District Court Order - 12/19/00

SIRE ee et eee 33a

Appendix C - District Court Order - 01/07/00

Cae er eh eke Owe wee Oe ee eee. 49a

A a tee

TABLE OF CITED AUTHORITIES

CASES

Brinkerhoff Maritime Drilling Corp. v. PT Airfast

Services Indonesia,

1992-2 SLR 776, 1992 SLR LEXIS 453 (1992)

TCT TTT ee OF Le ee ee ere eee 8

Byrne v. Japan Airlines, Inc..,

1984 U.S. Dist. LEXIS 21146 (S.D.N.Y. 1984)

(es Cece e4 tees wees ee 8,9

Chukwu v. Air France,

218 F.Supp.2d 979 (N.D. Ill. 2002) ........ 8

Coyle v. P.T. Garuda Indonesia,

180 F. Supp. 2d. 1160 (D. Or. 2001)........ 4

Cross v. Washington, 911 F.2d 341 (9th Cir. 1990),

cert. denied, 499 U.S. 922,

111 S. Ct. 1313, 113 L.Ed.2d 247 (1991) ..... 11

Curcio v. John Hancock Mut. Life Ins. Co.,

33 F360 226 (SO Cir. SPE) wee ccc ccescs 10

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530,

111 S. Ct. 1489, 113 L. Ed. 2d 569 (1991) .... 12

Factor v. Laubenheimer, 290 U.S. 276,

345. Ct. IDE, TS bntee. SEP CASSS) ov vcecess 11

Foster v. Neilson, 27 U.S. (2 Pet.) 253,

em FF ee ee 11

Galu v. Swissair,

1987 U.S. Dist. LEXIS 12628 (S.D.N.Y. 1987)

‘AMET T SACRE Sheed se oa e cc Ck 8

Gulf Oil Corp. vy. Gilbert, 330 U.S. 501,

67 S.Ct. 839, 91 L.Ed. 1055 J ae >

Gupta v. Austrian Airlines,

211 F.Supp.2d 1078 (N.D. Ill. 2002)........ 8

In re Air Crash off Long Island New York, on July 17, 1996,

65 F.Supp.2d 207 (S.D.N.Y. 1999)

In re Air Crash Disaster Near New Orleans, La. on July 9,

1982, 821 F.2d 1147 (Sth Cir. 1987),

cert denied, Pan American World Airways, Inc. v. Lopez,

490 U.S. 1032, 109 S.Ct. 1928,

104 L.Ed.2d 400 (1989) ...... 4, 5,7, 9, 11, 13

Insurance Co. of North America v. Federal Express Corp.,

189 F.3d 914 (9th Cir. A Se a sn on 3

Intel Corp. v. Malaysian Airline Sys.,

652 F. Supp. i101 (N.D. Cal. a 4,8

Itel Containers Int’! y. Huddleston,

507 U.S. 60, 113 S. Ct. 1095,

122 L. Ed. 2d 42] OREN ieee ac. 11

Vii

Lu v. Air China Intern. Corp.,

1992 U.S. Dist. LEXIS 20927

Rs SED KS bee ad ene e ek eeeee a 8,9

McLoughlin v. Commercial Airways (PTY) Ltd.,

602 F.Supp. 29 (E.D.N.Y. 1985) .......... 8

Milor S.R.L. v. British Airways PLC,

[1996] Q.B. 702 (1996) ........... 4, 7,9, 10

People ex rel. Compagnie Nationale Air France v. Giliberto,

383 N.E.2d 977 (Ill. Sup. Ct. 1978) ........ 8

Robert Bosch Corp. v. Air France,

712 F. Supp. 688 (N.D. Ill. 1989)......... 4,8

Smith v. Canadian Pacific Airways, Ltd.,

4352 F.26 796 GOO CR. IST) ow ccc ccccvese 6,7

Thach v. China Airlines, Lid.,

1997 U.S. Dist. LEXIS 7384 (S.D.N.Y. 1997)

Trans World Airlines, Inc. v. Franklin Mint Corp.,

Se TS 60's b ce be eee e eek oes 12

Yan Wang v. United Airlines, Inc.,

2001 U.S. Dist. LEXIS 291 (E.D. La. 2001)... 8

STATUTES

yr ik Soe oe | eee ee ee ee cee ee 1

Viii

TREATIES

Warsaw Convention (formally known as the Convention for the

Unification of Certain Rules Relating to International

Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014,T.S.

No. 876 (1934), note following 49 U.S.C. § 40105)

Convention for the Unification of Certain Rules for

International Carriage by Air, done May 28, 1999, ICAO

Doc. 9740; S. Treaty Doc. No. 106-45 ........... 14

OTHER AUTHORITY

Collier, The Road to Montreal: Developments in Airline

Liability for International Flights & The Impact on Aviation

Manufacturers in the U.S.” (1999) ........... 14-15

DeLeon and Eyskens, “The Montreal Convention: Analysis

of Some Aspects of the Attempted Modernization and

Consolidation of the Warsaw System,” 66 J. Air L. & Com.

Pe kW 80 od, Wawa 'b who oo bk 15

Heinonen, “The Warsaw Convention Jurisdiction and the

Internet,” 65 J. Air L. & Com. 453 SY a'a's Wa ae a 17

International Civil Aviation Organization, International

Conference on Air Law, Montreal 10-28 May 1999, at 159

ce RE TUAE POET COTTON TUES. TEE ee ee 15

Mendelsohn, “Domicile and the Warsaw System,” 22:1

Annals of Air and Space Law 137 (1997) .......... 17

Tompkins, “Hosaka v. United Airlines, Inc.: A Body Blow to

Universal Acceptance of the Montreal Convention 19997,”

Aviation Litigation Quarterly, Fall 2002 ..........- 16

Petitioners respectfully petition for a Writ of Certiorari

to review the judgment of the Ninth Circuit Court of Appeals

in this case.

OPINIONS BELOW

The Ninth Circuit opinion (App. A at 1a-32a) is

reported at 305 F.3d 989 (9th Cir. 2002). The District Court

order filed December 19, 2000 is unreported. (App. B at

33a-48a). The District Court order filed January 7, 2000 is

also unreported. (App. C at 49a-69a).

STATEMENT OF JURISDICTION

The judgment of the Ninth Circuit Court of Appeals

was entered on September 18, 2002. The jurisdiction of this

court is invoked pursuant to 28 U.S.C. § 1254(1).

TREATY PROVISIONS INVOLVED

This case involves the following treaty provisions:

Article 28 of the Warsaw Convention (formally known

as the Convention for the Unification of Certain Rules

Relating to International Transportation by Air, Oct. 12,

1929, 49 Stat. 3000, 3014,T.S. No. 876 (1934), note

following 49 U.S.C. § 40105).

Article 28(1) of the Warsaw Convention establishes

the four national fora in which an injured party may initially

bring suit for damages against an international air carrier for

death or injury: “An action for damages must be brought, at

the option of the plaintiff, in the territory of one of the High

Contracting Parties, either before the court of the domicile of

the carrier or of 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.”

Article 28(2) of the Warsaw Convention provides that

“Questions of procedure shall be governed by the law of the

court to which the case is submitted.”

STATEMENT OF THE CASE

The plaintiffs were passengers aboard a United

Airlines flight from Tokyo to Honolulu on December 28,

1997. Approximately 90 minutes into the flight, the aircraft

unexpectedly encountered two episodes of severe clear air

turbulence and some of the passengers, particularly those not

using seat belts, claimed injuries as a result. One such

passenger sustained fatal injuries.

Through 18 separate filings, the 46 plaintiffs instituted

litigation in the United States District Court for the Noriwern

District of California. They selected this forum even though

apart from having a lawyer practicing in that District, there

was no nexus of any kind between the District and the

plaintiffs, their alleged injuries, their claimed treatment or

their purported losses. Every plaintiff in every case lives in

Japan, works in Japan, is a citizen of Japan, received medical

care (if at all) in Japan and otherwise sustained whatever

damages he or she sustained, in Japan. All records relating

to their alleged accident-related injuries and damages are in

Japanese and located in Japan.

Because these lawsuits involve injuries allegedly

sustained by plaintiffs in the course of international

transportation by air, the governing principles are those set

forth in the Warsaw Convention, as modified by certain

contractual undertakings, as well as tariffs filed with the

United States Department of Transportation. (See, e.g., App.

B at 36a). The particular contractual undertakings of

relevance are the IATA Intercarrier Agreement and the

Agreement on Measures to Implement the IATA Intercarrier

Agreement. (/d.) Because the Warsaw Convention, as

modified by the contractual agreements, provides, inter alia,

for presumed liability (Insurance Co. of North America v.

Federal Express Corp., 189 F.3d 914, 917 (9th Cir. 1999)),

the only evidence which would be proffered by the plaintiffs

in these cases would be that which related to each plaintiff's

individual damages - all of which is in Japan, in the Japanese

language.

In view of the nature of the relevant evidence, and its

remoteness from the forum selected by the plaintiffs, United

moved to dismiss the cases on grounds of forum non

conveniens. In two separate orders which together embraced

all of the related lawsuits, the District Court conditionally

granted United’s motions to dismiss. (See App. B and App.

C). In so doing, the District Court faithfully and fairly

applied the factors set out by this Court in Gulf Oil Corp. v.

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

and its progeny. The District Court’s ultimate conclusion was

that “[o]verall, the balance of private interest factors central

to the Court’s inquiry . . . clearly weigh in favor of Japan as

the forum for this suit.” (App. C at 65a-66a). “[T]he Court

[found] that the public interest factors favor Japan as the

proper forum” as well. (App. B at 45a).

Plaintiffs appealed to the Ninth Circuit and their

appeals were consolidated. (305 F.3d at 993 n.2). Plaintiffs

contended, inter alia, that the District Court abused its

discretion in entertaining United’s forum non conveniens

dismissal motions because, in their view, that well-established

procedural doctrine was not available to airline defendants in

cases governed by the Warsaw Convention. All apposite legal

authority in this country was to the contrary and forum non

conveniens dismissal motions had been entertained repeatedly

by state and federal courts in cases governed by the treaty.

While acknowledging (but eschewing) the authority in

this country which was directly contrary,’ the Court of

Appeals below instead embraced the result reached (but not

the reasoning employed) by a single Court of Appeal in

England in a lost cargo case, Milor S.R.L. v. British Airways

PLC, [1996] Q.B. 702 (1996). It was the view of the lead

author of that opinion that: “The procedural power to stay on

the ground of forum non conveniens is, in my judgment,

inconsistent with the right conferred on the plaintiff to choose

in which of the competent jurisdictions his action will be tried

and cannot stand with it.” (/d.).

' This authority included the decision of the Fifth Circuit in Jn re

Air Crash Disaster Near New Orleans, La. on July 9, 1982, 821

F.2d 1147, 1161 (Sth Cir. 19&7), vacated on other grounds sub

nom. Pan American World Airways, Inc. v. Lopez, 490 U.S. 1032,

109 S.Ct. 1928, 104 L.Ed.2d 400 (1989) (hereinafter “New

Orleans”), the District Court’s decision in Jn re Air Crash off Long

Island New York, on July 17, 1996, 65 F.Supp.2d 207 (S.D.N.Y.

1999) (hereinafter “Long Island”), as well as other District Court

cases, including, among others, Coyle v. P.T. Garuda Indonesia,

180 F. Supp. 2d. 1160, 1170 (D. Or. 2001); Robert Bosch Corp.

v. Air France, 712 F. Supp. 688, 691 (N.D. Ill. 1989); Intel Corp.

v. Malaysian Airline Sys., 652 F. Supp. 1101, 1102 (N.D. Cal.

1987)).

REASONS FOR GRANTING THE PETITION

WHETHER THE DOCTRINE OF FORUM

NON CONVENIENS IS AVAILABLE IN

CASES GOVERNED BY THE WARSAW

CONVENTION IS A QUESTION OF

RECURRING IMPORTANCE ON WHICH

THE CIRCUITS ARE IN CONFLICT

A. The Decision Below Is In Direct Conflict

With Decisions Rendered by the Fifth Circuit

Court of Appeals and the Second Circuit Court

of Appeals

In New Orleans, the Court of Appeals for the Fifth

Circuit, in an en banc opinion, posed and then answered the

following question: “Can a federal district court apply the

doctrine of forum non conveniens in a case governed by the

Warsaw Convention?” (821 F.2d at 1153). The Court’s

decision was affirmative: “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.” (/d. at 1162).

As the Fifth Circuit elaborated, under Article 28(1),

“[t]he party initiating the action enjoys the perogative of

choosing between these [four] possible national forums but

that selection is not inviolate. That choice is then subject to

the procedural requirements and devices that are part of that

forum’s internal laws.” (/d. at 1161). The Court added that

“[w]e 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,” referring to commentary to the effect that “[nJo

evidence can be found anywhere that the drafters of the

Convention intended to alter the judicial system of any

country.” (/d. at 1162).

This was consistent with the opinion of the Court of

Appeals for the Second Circuit in Smith v. Canadian Pacific

Airways, Ltd., 452 F.2d 798 (2d Cir. 1971). That Court held

that:

in a Warsaw Convention case there are two

levels of judicial power that must be examined

to determine whether suit may be maintained.

The first level . . . is that of jurisdiction in the

international or treaty sense under Article

28(1). The second level involves the power of

a particular United States court, under federal

statutes and practice, to hear a Warsaw

Convention case — jurisdiction in the domestic

law sense. 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. (/d. at

800).

The Smith Court went on to recognize that only when

treaty jurisdiction exists under Article 28(1) is the Court

required to consider and “answer domestic jurisdiction and

venue questions.” Jd. at 802. Article 28(2) of the treaty

expressly mandates that “questions of procedure” are to be

governed by the law of the court which has treaty jurisdiction

under Article 28(1). Jd. at 801. The federal common law

doctrine of forum non conveniens is a procedural principle

which empowers a Court with the discretion to determine

whether, in a particular case in which jurisdiction (viz., the

Court’s power to hear the case) does exist, the Court should

exercise that power, or should dismiss the case in favor of a

more appropriate venue in a foreign country.

The decision of the Ninth Circuit below and the

decisions of the Fifth Circuit in New Orleans and the Second

Circuit in Smith are plainly irreconcilable.

Moreover, as the Court below had to acknowledge,

other courts are in accord with the view espoused in New

Orleans by the Fifth Circuit. Even the English case - the

only case in harmony with the Ninth Circuit’s decision -

acknowledged that “a degree of case precedent around the

globe” supports the opposite view - that of the Fifth Circuit

and others - that forum non conveniens and the Warsaw

Convention are compatible one with the other. (Milor, [1996]

QB 702).

For example, in Long Island, litigation stemming from

the crash of TWA Flight 800 on July 17, 1996, the District

Court rejected the argument that “forum non conveniens is not

available when Plaintiffs have exercised their option to sue

under Article 28 of the Convention.” (65 F.Supp.2d at 212).

Instead, the court concluded that “while Article 28 limits the

fora in which a plaintiff may bring suit, it does not limit the fora

to which a court may transfer such suit.” (/d.) “Forum non

conveniens is a procedural tool available to U.S. courts. . .”

(Id. at 214). Analyzing the issue and the drafting history of

the treaty, the court found nothing which would “support an

alternative interpretation.” (/d )

While the New Orleans and Long Island cases

specifically analyzed the issue of whether forum non

conveniens is a procedural vehicle available in cases governed

by the Warsaw Convention, and concluded that it is,

numerous other cases have accepted that proposition as a

given. These include decisions of federal District Courts,’

state courts,’ and other nations.‘ On this record, the District

Court below rightly concluded that “[t]here is simply no case

law support for this premise” that the language of Article

28(1) serves as a “fiat that the four fora contemplated by the

statute are convenient per se.” (App. C at 54a-55a). The

District Court noted that “[i]n fact, several cases (including

those cited by plaintiffs for other purposes) implicitly

undermine the contention, since forum non conveniens

dismissals are confirmed in Warsaw Convention cases despite

the fact that the initial venue was at least statutorily

2 See, e.g., Chukwu v. Air France, 218 F.Supp.2d 979 (N.D. Ill.

2002); Gupta v. Austrian Airlines, 211 F.Supp.2d 1078 (N.D. Ill.

2002); Yan Wang v. United Airlines, Inc., 2001 U.S. Dist. LEXIS

291 (E.D. La. 2001); Thach v. China Airlines, Ltd., 1997 U.S.

Dist. LEXIS 7384 (S.D.N.Y. 1997); Lu v. Air China Intern.

Corp.,1992 U.S. Dist. LEXIS 20927 (E.D.N.Y. 1992); Robert

Bosch Corp. v. Air France, 712 F.Supp.688 (N.D. Ill. 1989); Galu

v. Swissair, 1987 U.S. Dist. LEXIS 12628 (S.D.N.Y. 1987); Intel

Corp. v. Malaysian Airline System, 652 F.Supp. 1101 (N.D. Cal.

1987); Byrne v. Japan Airlines, Inc., 1984 U.S. Dist. LEXIS

21146(S.D.N.Y. 1984); McLoughlin v. Commercial Airways (PTY)

Ltd., 602 F.Supp. 29 (E.D.N.Y. 1985); In re Disaster at Riyadh

Airport Saudi Arabia on Aug. 19, 1980, 540 F.Supp. 1141 (D.C.

Cir. 1982).

3 See, e.g., People ex rel. Compagnie Nationale Air France v.

Giliberto, 383 N.E.2d 977 (Ill. Sup. Ct. 1978)).

* See, e.g., Brinkerhoff Maritime Drilling Corp. v. PT Airfast

Services Indonesia, 1992-2 SLR 776, 1992 SLR LEXIS 453 (1992)

(appellate court in Singapore found forum non conveniens

applicable in a Warsaw Convention case).

permissible. Lu v. Air China, 1992 WL 453646 (E.D.N.Y.

1992); Byrne v. Japan Air Lines, 1984 WL 1343 (S.D.N.Y.

1984).” (App. C at 55a).

B. The Decision of the Court Below Is Incorrect

1. The Court Erroneously

Proclaimed Article 28

Ambiguous

The Court’s analysis is founded upon a premise that is

entirely without precedent - the notion that Article 28 is

ambiguous. (305 F.3d at 996). Neither the Fifth Circuit (in

New Orleans), the Southern District of New York (in Long

Island), nor even the English Court of Appeal found

ambiguity in Article 28. Rather, the Fifth Circuit relied upon

the plain text of Article 28; the District Court in Long Island

relied upon “the literal language of Article 28(2)”; and the

English tribunal relied upon “the natural meaning” of the text.

(Below, even plaintiffs agreed the text was “clear” and the

intent “express”).

Because this predicate of “ambiguity” is not only

unprecedented, but also erroneous, the Court was led astray

in its analysis from the outset. The Court purported to find

ambiguity by (1) juxtaposing two cases which construed the

text of Article 28 differently (305 F.3d at 994-996), (2)

proclaiming the two to be “equally plausible interpretations”

of Article 28 (id. at 994), and (3) invoking an axiom “that an

agreement ‘subject to two or more reasonable interpretations

. . . is ambiguous’ (id. at 995).” (Ellipses in original).

Upon examination, however, it is apparent that the

court below merely set up Milor as a straw man - as a case

which purportedly espouses one “reasonable” interpretation

of Article 28. No sooner was the straw man put forward,

however, it was knocked down by the Court: the Court went

on to reject the fundamental underpinning of the Milor

decision. The Court went so far as to say that (1) the French

dictionary definitions of the authentic text used in Article 28

“do not compel this outcome” which supports Milor’s hoiding

(id. at 995-995) and (2) “[m]oreover, the recently signed, but

not yet ratified, successor to the Warsaw Convention, the

1999 Montreal Convention, uses [these terms from the text]

in a manner that undermines the Milor court’s analysis (id. at

996).”

Thus, the Court’s own deconstruction of Milor

demonstrates the error in its characterization of Milor as

standing as one “plausible” interpretation of Article 28, and,

therefore, the Court’s ultimate conclusion that there are two

reasonable, competing interpretations of Article 28, and thus

ambiguity.

The corollary to the canon of construction articulated

by the Court is that if, after applying established rules of

interpretation, only one reasonable meaning clearly emerges,

then the text. is not ambiguous. See, e.g., Curcio'v. John

Hancock Mut. Life Ins. Co. , 33 F.3d 226, 231 (3d Cir. 1994).

That is the situation here. There is no ambiguity, in fact, and

none has ever before been found.

2. The Court’s Interpretation

Ignores Article 28(2)

As the court made clear in Long Island, “Article 28(1)

must be read in conjunction with Article 28(2), which

provides that ‘Questions of procedure shall be governed by

the law of the court to which the case is submitted.’” (65

F.Supp.2d at 214). Similarly, as the Fifth Circuit

demonstrated, in New Orleans, these two subsections are

construed together - and together set a tripartite analysis.

(821 F.2d at 1161 n.21). Indeed, the Fifth Circuit warned of

the danger if one were to “ignore the language of article

28(2)” - “American courts could become the forums for

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

(Id. at 1162).

The Court’s opinion in this case reads subdivision (1)

of Article 28 as giving plaintiffs the inviolate right to sue in

one of the four specified fora, but in so doing, reads

subdivision (2) out of the treaty. The decision below provides

no explanation of the import of subdivision (2), much less

how the two subdivisions of the same Article apply in unity.

However, treaties, like statutes, should be construed

so that no words are treated as meaningless, redundant, or

mere surplusage. See, e.g., Jtel Containers Int'l v.

Huddleston, 507 U.S. 60, 65, 113 S. Ct. 1095, 1100, 122 L.

Ed. 2d 421 (1993) (refusing to read an international

convention in a way that would make some of its language

superfluous); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 310-11,

7 L. Ed. 415 (1829) (Marshall, C.J.) (“But the insertion of

these words materially affects the construction of the article.

They cannot be rejected as surplusage. They have a plain

meaning ... . We cannot say they were inserted carelessly or

unadvisedly, and must understand them according to their

obvious import.”); Cross v. Washington, 911 F.2d 341, 344

(9th Cir. 1990), cert. denied, 499 U.S. 922, 111 S. Ct. 1313,

113 L.Ed.2d 247 (1991) (noting that treaties should not be

construed so as to render any clause inconsistent or

meaningless). See also Factor v. Laubenheimer, 290 U.S.

276, 54S. Ct. 191, 78 L.Ed. 315 (1933) (All the words of a

treaty are to be given a meaning, if reasonably possible, and

rules of construction may not be resorted to to render it

meaningless or inoperative.)

3. The Court’s Interpretation Purports To

Advance, But Actually Impedes, The Purposes

of The Treaty

As this Court has recognized, “the primary purpose of

the contracting parties to the Convention [was] limiting the

liability of air carriers in order to foster the growth of the

fledgling commercial aviation industry.” Eastern Airlines,

Inc. v. Floyd, 499 U.S. 530, 546, 111 S. Ct. 1489, 113 L.

Ed. 2d 569 (1991), citing Trans World Airlines, Inc. v.

Franklin Mint Corp., 466 U.S. 243, 256 (1984).

“The second goal of the Convention was to establish

uniform rules governing documentation such as airline tickets

and waybills and uniform procedure for addressing claims

arising out of international transportation.” /d. at n.11.

Although the Court below said otherwise, its decision

does not advance either of these purposes; rather, it

undermines the well-recognized goals of the treaty.

The primary purpose of the treaty as articulated by this

Court in Floyd (limiting air carrier liability) was not

acknowledged by the Court of Appeals in this case. Instead,

the Court focused on (1) uniformity and (2) a “balance [of]

the interests of air carriers against those of passengers.” (305

F.3d at 997).

As the Fifth Circuit stated, more than anything else,

“the delegates-to the Convention were...concerned with

limiting the locations in which an air carrier would have to

defend an action, with ensuring that an injured party [would]

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.” (New Orleans, 821 F.2d at 1161).

Through a reasoned application of the private and public

interest factors which this Court articulated in Gilbert, when

an action is properly dismissed on forum non conveniens

grounds, all of these goals are, by definition, advanced.

In contrast, by eliminating the procedural tool of

Article 28(2), notwithstanding its plain text, American courts

are certain to become the forum of choice in cases governed

by the Warsaw Convention. The reason is simple: monetary

recoveries in this country are larger than elsewhere.”

Plainly, the goal of limiting airline liability is

hampered, not fostered, by a judicial opinion which strips

litigants of the procedural doctrine of forum non conveniens

by writing Article 28(2) out of the Warsaw Convention.

No legal precedent in this country supports the

proposition articulated by the Court of Appeals below that the

Warsaw “signatories manifested their intent to create not just

uniform rules of liability, but also uniform rules of

jurisdiction.” (305 F.3d at 996). Nor does the Court below

explain where this manifestation of intent is to be found.

Moreover, if the intent were to “create[] a self-contained code

5 In connection with another, more recent case governed by the

Warsaw Convention, the chief lawyer representing the plaintiffs in

these cases was quoted by the Associated Press as

“acknowledg[ing] he wants to hold the trial in the US, where

victims are traditionally awarded much higher compensation than

in Singaporean, Taiwanese or Australian courts. ” (“Attorney asks

US Court to hear SIA Case,” Taipei Times, Feb. 23, 2001, p.2).

ER EER ARR RS RRS se

on jurisdiction” (id. at 997) “[b]y including an article

addressing jurisdiction” (id. at 996) as the Court states, then

it is inconceivabie that the intent would have been that just

half the article (subdivision (1)) would be applicable to

questions of jurisdiction and venue, while the other half

(subdivision (2)) would serve no purpose at all.

The goal of uniformity is served when claims can be

tried where the plaintiffs reside and where their damages can

be measured according to local standards, customs and rules

of law. Uniformity is not served by a judicial proclamation

that the plain language of the treaty, including Article 28(2),

does not mean what it says.

4. The “Postratification Unaerstanding” Cited By

The Court Undermines The Court’s

Interpretation Rather Than Supporting It

As the Court below acknowledged, “[ijn 1999,

delegates gathered in Montreal to draft a treaty, commonly

known as the Montreal Convention, to replace the Warsaw

Convention. [Footnote omitted].” (305 F.3d at 999).° The

aim of the Montreal Convention is to “moderniz[e] and

consolidat[e] a seventy-year old system of international

instruments of private international law into one instrument

that will provide, for years to come, an adequate level of

compensation for those involved in international air

accidents.” (Statement of Dr. Assad Kotaite, President of the

Council of ICAO, quoted in Collier, Zhe Road to Montreal:

of Certain Rules for International Carriage by Air, done May 28,

1999, ICAO Doc. 9740; S. Treaty Doc. No. 106-45.

Developments in Airline Liability for International Flights &

The Impact on Aviation Manufacturers in the U.S.” (1999)).

The drafted treaty will gain legal effect after 30

nations deposit instruments of ratification with the

International Civil Aviation Organization (DeLeon and

Eyskens, “The Montreal Convention: Analysis of Some

Aspects of the Attempted Modernization and Consolidation of

the Warsaw System,” 66 J. Air L. & Com. 1155, 1158 n.4

(2001)). Thus far, twenty-five nations have done so.

<http://www.icao.int/icao /en/leb/mti99.htm > (last visited

Dec. 11, 2002).

Article 33 of the new treaty is similar to Article 28 of

the old one in that it specifies a set of fora in which

jurisdiction is proper and assigns to the plaintiff the initial

choice of forum. (305 F.3d at 999-1000). However, the new

treaty adds a “fifth jurisdiction” to the four originally

enumerated in the Warsaw Convention - the principal and

permanent residence of the passenger at the time of the

accident causing bodily injury or death. DeLeon and

Eyskens, supra, at 1159-1160. Like Article 28(2) of the

Warsaw Convention, Montreal’s Article 33(4) incorporates

the procedural law of the forum state. (305 F.3d at 1000

n.15).

Although “[t]he United States offered an amendment

that would have made explicit a country’s right to apply

forum non conveniens, provided that the country’s procedural

rules allowed the doctrine” (id. at 1000), as the court below

acknowledged, “the United States delegate at one point

expressed his opinion ‘that the doctrine of forum non

conveniens would be applied ...in his country whether the

[treaty] prescribed that or not.’” (/d. at 1001, quoting 1

International Civil Aviation Organization, International

Conference on Air Law, Montreal! 10-28 May 1999, at 159

(2001)). Thus, no particular significance can be attached to

the fact that the treaty as finally worded did not include a

reference to forum non conveniens by name.

This is particularly true in light of the fact that the

United States delegate also made clear that inclusion of the

provision for the “fifth jurisdiction” was an absolute necessity

if the United States were to sign and ultimately ratify the

treaty. Tompkins, “Hosaka v. United Airlines, Inc.: A Body

Blow to Universal Acceptance of the Montreal Convention

19997,” Aviation Litigation Quarterly, Fall 2002 at p.5.

Other nations, including those in Europe, the Middle East,

Africa and South America, expressed opposition to inclusion

of the “fifth jurisdiction.” (/d.) In the main, these nations

were fearful that claimants seeking damages awards measured

in United States’ quantum, would invoke the “fifth

jurisdiction” to bring damages actions in the United States

against air carriers domiciled or headquartered in their

countries. (/d.)

To mollify these concerns, the United States (and other

nations, including Canada and Japan), expressed the view that

the well-established, common law doctrine of forum non

conveniens could and would be invoked to dismiss foreign

claims brought in the United States courts, just as was true

with cases filed in the United States pursuant to the four

original Warsaw jurisdictions. (/d.)

One commentator has cautioned that “[i]f the Hosaka

decision stands, then numerous States that are expected to

ratify the Montreal Convention, including the European

Union States, may have a change of heart. The Montreal

Convention, therefore, may not achieve the principal objective

of universality envisaged by its supporters.” (/d.)

Not only is the doctrine of forum non conveniens likely

essential if final implementation of the Montreal treaty is to be

achieved, but as part of the Montreal scheme, the doctrine

will serve a beneficial social purpose. It has been observed

that application of forum non conveniens, under the Montreal

regime, should help ensure that “plaintiffs receive fair and

quick compensation.” Heinonen, “The Warsaw Convention

Jurisdiction and the Internet,” 65 J. Air L, & Com. 453

(2000).

Professor Allan Mendelsohn has forecast that “(t]he

practice of US courts using the [forum non conveniens]

doctrine -hould accelerate if Article 28 is generally widened

to include the victim’s domicile or habitual place of residence

as the fifth forum.” Mendelsohn, “Domicile and the Warsaw

System,” 22:1 Annals of Air and Space Law 137, 140 (1997).

This would well serve the interests of justice. a

As Professor Mendelsohn suggests, “[a] combination

of increased Piper-inspired FNC dismissals and a widened

Article 28 should create a climate that will work to streamline

and expedite the Warsaw settlement process well before most

cases are even filed. Jd. at 141. And in those instances in

which lawsuits are filed, “victims of all aviation accidents, no

matter the site of the crash, would be served most fairly if the

damages claims filed . . . could be . . . litigated in the courts

of their own countries.”’ Jd. at 138-139.

7 As Professor Mendelsohn adds: “It is only there that the

[plaintiffs] could get the most accurate assessment of damages so

that they are able to live comfortably and do not become wards of

that State. It is also those courts that are most aware of cultural

differences that affect damages determinations as well as other

social . . . benefits that may be available to the [plaintiffs] and

whether or not these should be factored into a damages award.”

These principles are particularly apt in the cases at bar

— cases involving the individualized damages of nearly 50

people, each with his or her particularized losses and

damages, evidenced if at all by witnesses (who speak

Japanese) and documents (written in Japanese) which are

located exclusively in Japan.

Because the Court of Appeals below ultimately found

the text and drafting history of the Warsaw Convention and

the Montreal Convention (intended to supercede Warsaw)

inconclusive (as to “whether the Warsaw Convention

language, standing alone, permits or precludes application of

forum non conveniens”) (305 F.3d at 1001), it instead placed

considerable emphasis upon “[t]he history of other

international agreements.” (/d.) (Emphasis added).

To do so, the Court cobbled together the drafting and

negotiating history of another international treaty (the

Convention on Jurisdiction and Enforcement of Judgements in

Civil and Commercial Matters, Sept. 27, 1968) (id.) and even

another draft treaty (the Hague Conference on Private

International Law) (id. at 1001-1002). Both are far removed

from the international commercial aviation treaty at issue in

the cases at bar. Nevertheless, however, the Court below was

apparently able to satisfy itself that from this other history,

there was “support[] [for] the conclusion that the Warsaw

Convention’s silence on forum non conveniens does not

permit that doctrine’s application.” (/d. at 1001).

The notion that the drafting history of one treaty

provides a useful tool for ascertaining the intentions of the

drafters of an entirely different treaty, negotiated decades

Id. at 139.

earlier, in a different country, for a different purpose, is

questionable at best. Indeed, one significant flaw in this

“methodology” is highlighted by an observation made by the

Court below, to the effect that “[t]here are many possible

reasons the United States would have chosen to ratify” a

treaty containing or omitting particular language in the context

of a particular treaty at a particular time. (305 F.3d at 1002).

Ii.

CONCLUSION

A writ of certiorari should be granted to review the

judgment of the United States Court of Appeals for the Ninth

Circuit.

Dated: December 17, 2002

Respectfully submitted,

Clinton H. Coddington

Counsel of Record

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 00-15223, No. 00-15224, No. 00-15225, No. 00-

15226, No. 00-15228, No. 00-15229, No. 00-15230, No.

00-15231, No. 00-15238, No. 00-15239, No. 00-15241,

No. 00-15242, No. 00-15243, No. 00-15244, No. 01-

15120, No. 01-15123, No. 01-15124, No. 01-15131 .

[Filed September 18, 2002]

KATSUKO HOSAKA, individually and on behalf

of the Estate and heirs of SADAO HOSAKA,

Plaintiff-Appellant,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

TAKEO YOSHIKAWA; KIMIKO YOSHIKAWA;

YAE YOSHIKAWA; AYAKO YOSHIKAWA;

YUKI YOSHIKAWA; YOSHIKAWA; MIYOKO

NAKAZATO,

Piaintiffs-Appellants,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

a el

TAKEHITO YOSHIKAWA; NAMI

YOSHIKAWA; SACHIYO YOSHIKAWA, a minor,

and CHIZURU YOSHIKAWA, a minor by and

through their guardian ad litem TAKEHITO

YOSHIKAWA,

Plaintiffs-Appellants,

Vv.

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

NOBUYUKI TANAKA; KINUYO TANAKA;

YUKIKO TANAKA; MAKIKO TANAKA,

Plaintiffs-Appellants,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

ROA TESHIMA; KUMIKO TESHIMA,

Plaintiffs-A ppellants,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

KOZO YAMADA; ISA YAMADA; MASHIKO |

YAMADA; CHIZURU YAMADA,

Plaintiffs-Appellants, ©

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

NOBUAKI MIZUNO; TAKAKO MIZUNO,

Plaintiffs-Appellants,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

a ee ee ee ee _e_e_

TAKASHI ONISHI; JUNKO ONISHI;

MASAYA ONISHIS; MIHIKO ONISHI,

Plaintiffs-Appellants,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

YASUO TANAKA; SUSUMU TANAKA;

AYAKO TANAKA,

Plaintiffs-Appellants,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

NUBUO SHIGA,

Plaintiff-Appellant, and

KIMEE SHIGA,

Plaintiff,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

IZUMI TOSAKA,

Plaintiff-Appellant,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

HATSUMI ITO,

Plaintiff-Appellant,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

TAKAMASA KATAURA,

Plaintiff-Appellant, and

MACHIE TAIRA,

Plaintiff,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

KAORI ITO,

Plaintiff-Appellant,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

SHUICHI INAKO; HISAKO INAKO;

OSAMU INAKO; HIROSHI INAKO,

a minor, by and through his guardian ad litem

Shuichi Inako,

Plaintiffs-Appellants,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

SHUICHIRO MINAMI; YURIKO MINAMI;

TAKAHIRO MINAMI, a minor, by and through

guardian ad litem Shuichiro Minami;

TOMOHIRO MINAMI, a minor, by and through

guardian ad litem Shuichiro Minami,

Plaintiffs-Appellants,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

Nee ee eee ee”

MASAKI KONUMA,

Plaintiff-Appellant,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

KEIKO HIRASE,

Plaintiff-Appellant,

UNITED AIRLINES, INC.; UAL CORPORATION,

Defendants-Appellees.

ee ee eee Se”

Appeal from the United States District Court

for the Northern District of California

D.C. No. CV-99-02905-MJJ, D.C. No. CV-99-03710-MJJ,

D.C. No. CV-99-03708-MJJ, D.C. No. CV-99-02939-MJJ,

D.C. No. CV-99-02912-MJJ, D.C. No. CV-99-02911-MJJ,

D.C. No. CV-99-03712-MJJ, D.C. No. CV-99-04219-MJJ,

D.C. No. CV-99-02909-MJJ, D.C. No. CV-99-02908-M3JJ,

D.C. No. CV-99-02907-MJJ, D.C. No. CV-99-02906-MJJ,

D.C. No. CV-98-04075-MJJ, D.C. No. CV-99-02210-MJJ,

D.C. No. CV-99-05063-MJJ, D.C. No. CV-99-05062-M3JJ,

D.C. No. CV-99-05308-MJJ, D.C. No. CV-99-05061-MJJ

Martin J. Jenkins, District Judge, Presiding

JUDGES

Before: Stephen Reinhardt and Raymond C. Fisher, Circuit

Judges, and Donald W. Molloy, District Judge. *

* The Honorable Donald W. Molloy, Chief Judge, United

States District Court for the District of Montana, sitting by

designation.

Ninth Circuit Opinion - 09/18/02

OPINION

FISHER, Circuit Judge

In these consolidated appeals, plaintiffs challenge the

district court’s dismissal of their actions on the ground of

forum non conveniens. Plaintiffs brought claims under the

Warsaw Convention arising out of injuries sustained when

their United Airlines flight from Tokyo to Ha‘vaii encountered

turbulence over the Pacific Ocean. Applying the federal

common law doctrine of forum non conveniens, the district

court dismissed plaintiffs’ actions in favor of a more

convenient forum in Japan. Plaintiffs contend it was error for

the district court to entertain United’s motions for forum non

conveniens because the Warsaw Convention, which

establishes four forums in which an action arising under the

treaty must be brought, precludes application of that doctrine

here. We agree. We hold that Article 28(1) of the Warsaw

Convention overrides the discretionary power of the federal

courts to dismiss an action for forum non conveniens.'

Accordingly, the judgments of the district court dismissing

these actions on the ground of forum non conveniens are

reversed.

PROCEDURAL HISTORY

These related cases were brought by passengers on

United Air Lines Flight 826, which was scheduled to fly from

' We have no occasion to decide whether state courts may apply

their own doctrines of forum non conveniens to actions arising

under the Warsaw Convention.

Ninth Circuit Opinion - 09/18/02

Tokyo, Japan to Honolulu, Hawaii on December 29, 1997.

Flight 826 encountered severe turbulence over the Pacific

Ocean, approximately three hours into the flight. The

turbulence resulted in the death of one passenger and injuries

to many others. Flight 826 then diverted course and returned

to Tokyo. Several of the injured passengers, and in some

cases family members who were not passengers on the flight,

brought suit to recover damages under the Warsaw

Convention, a multilateral treaty governing the international

carriage of passengers, baggage and cargo by air drafted in

1929 and adhered to by the United States in 1934.

The district court granted United’s two motions to

dismiss for forum non conveniens.? The court held that

Article 28(1) of the Warsaw Convention, which sets forth

four forums in which an action must be brought and grants

the plaintiff the option of choosing among these jurisdictions,

did not act as a procedural bar to the court’s entertainment of

a motion to dismiss for forum non conveniens. Plaintiffs

appealed. We have jurisdiction over these appeals under 28

U.S.C. § 1291 and we reverse.

DISCUSSION

We review a district court’s interpretation of treaties

2 The district court had before it 18 related cases, each of which it

dismissed on the ground of forum non conveniens. It dismissed 14

of them on January 7, 2000 and the remaining four on December

19, 2000. All 18 cases are consolidated for the purposes of this

appeal.

Ninth Circuit Opinion - 09/18/02

de novo. United States v. Idaho, 210 F.3d 1067, 1072 (9th

Cir. 2000), aff'd, 533 U.S. 262, 150 L. Ed. 2d 326, 121 S.

Ct. 2135 (2001). Our interpretation of the Warsaw

Convention begins with the text. El Al Israel Airlines, Ltd. v.

Tseng, 525 U.S. 155, 167, 142 L. Ed. 2d 576, 119 S. Ct. 662

(1999). If the plain text is ambiguous, we look to other

sources to elucidate the treaty’s meaning, Chan v. Korean Air

Lines, Ltd., 490 U.S. 122, 134, 104 L. Ed. 2d 113, 109 S.

Ct. 1676 (1989), including the purposes of the treaty, its

drafting history, the postratification understanding of the

contracting parties and the decisions of the courts of other

signatories. See Tseng, 525 U.S. at 167-76. Throughout, “it

is our responsibility to give the specific words of the treaty a

meaning consistent with the shared expectations of the

contracting parties.” Air France v. Saks, 470 U.S. 392, 399,

84 L. Ed. 2d 289, 105 S. Ct. 1338 (1985). Here, although the

text is ambiguous, the purposes, drafting history and

treatment of the issue elsewhere compel us to conclude that

forum non conveniens is not available in the Warsaw

Convention actions giving rise to these appeals.

A. Text

“Our inquiry begins with the text.” Tseng, 525 U.S.

at 167. The text of the Warsaw Convention is silent on the

availability of the doctrine of forum non conveniens.

Questions of jurisdiction and procedure, however, are

governed by Article 28, which states:

(1) An action for damages must be brought, at

the option of the plaintiff, in the territory of

one of the High Contracting Parties, either

before the court of the domicile of the carrier

Ninth Circuit Opinion - 09/18/02

or of 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.

(2) Questions of procedure shall be governed

by the law of the court to which the case is

submitted. -

Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Oct. 12, 1929, 49 Stat.

3000, 3020-21, T.S. No. 876 (1934), note following 49

U.S.C. § 40105. A

3 Citations in this opinion are to the official United States

translation of the Convention. See 49 Stat. 3014-23. Where

relevant, we also provide the Convention’s governing French text.

See 49 Stat. 3000-09; Saks, 470 U.S. at 397. The French text of

Article 28 reads:

(1) L’action en responsabilité devra étra porteé, au

choix du demandeur, dans le territoire d’une des

Hautes Parties Contractantes, soit devant le

tribunal du domicile du transporteur, due siége

principal de son exploitation ot du lieu ou il

posséde un éstablissement par le soin duquel le

contrat a été conclu, soit devant le tribunal du lieu

de destination.

(2) La procédure sera réglée par la loi du tribunal

saisi.

49 Stat. at 3007.

Ninth Circuit Opinion - 09/18/02

This text is susceptible to two equally plausible

interpretations, as the following two decisions illustrate.* In

Milor v. British Airways, Plc., [1996] Q.B. 702, 706 (Eng.

C.A.), the British Court of Appeal concluded that the text

precluded the forum non conveniens doctrine, reasoning that

the “the procedural power to stay on the ground of forum non

conveniens is... inconsistent with the right conferred on the

plaintiff to choose in which of the competent jurisdictions his

action will be tried....”° Under this view of the text, the scope

of the forum state’s procedural law incorporated by Article

28(2) is subject to Article 28(1), which grants to the plaintiff

* Were we construing an act of Congress, our analysis of the same

text would be different because we presume that federal statutes’

venue provisions do not preempt forum non conveniens unless

Congress’ contrary intent is manifestly clear. See Creative Tech.,

Ltd. v. Aztech System Pte, Ltd., 61 F.3d 696, 700 (9th Cir. 1995).

This rule of construction, however, does not control in the case of

international treaties. See Tseng, 525 U.S. at 175 (“Our home-

centered preemption analysis ...should not be applied,

mechanically, in construing our international obligations.”). The

Warsaw Convention is not an act of Congress, which acts with a

backdrop favorable to forum non conveniens. Rather, the

Convention was “drafted in French by continental jurists,” Eastern

Airlines, Inc. v. Floyd, 499 U.S. 530, 536, 113 L. Ed. 2d 569, 111

S. Ct. 1489 (1991), to whom the forum non conveniens doctrine

was contrary to their national laws. See Section I. C, infra. We

therefore analyze the text neutzally, without a thumb on the scale in

favor of forum non conveniens.

5 The Milor decision, as an “opinion{] of our sister signator[y],”

is “entitled to considerable weight.” Saks, 470 U.S. at 404.

10a

Ninth Circuit Opinion - 09/18/02

an absolute right of choice as between four presumptively

convenient jurisdictions.

Also plausible, however, is the textual interpretation

adopted in Jn re Air Crash off Long Island New York, on July

17, 1996, 65 F. Supp. 2d 207, 214 (S.D.N.Y. 1999), in

which the court reasoned that the text of Article 28(2) plainly

incorporates the forum state’s procedural law. Because forum

non conveniens is a feature of United States procedural law,

see Am. Dredging Co. v. Miller, 510 U.S. 443, 453, 127 L.

Ed. 2d 285, 114 S. Ct. 981 (1994), “/fforum non conveniens

is a procedural tool available to U.S. courts and thus squarely

falls within the literal language of Article 28(2).” In re Air

Crash off Long Island, 65 F. Supp. 2d at 214; accord In re

Air Crash Disaster Near New Orleans, Louisiana on July 9,

1982, 821 F.2d 1147, 1161 (Sth Cir. 1987) (en banc) (holding

that the Warsaw Convention permits application of forum non

conveniens because the plaintiff's choice under Article 28(1)

is “subject to the procedural requirements and devices that are

part of that forum’s internal laws”). It is axiomatic that an

agreement “subject to two or more reasonable interpretations

...is ambiguous.” Gen. Accident Ins. Co. v. Unity/Waterford-

Fair Oaks, Ltd., 288 F.3d 651, 653 (5th Cir. 2002).

In adopting its interpretation of Article 28, the Milor

court also deemed it significant that the governing French text

uses the word “portee” in Article 28(1), where it states that

an action must be “brought” in one of the competent

jurisdictions, while using the word “intentee” in Article 29,

governing the timeliness of the lawsuit, where it states that an

lla

Ninth Circuit Opinion - 09/18/02

action must be “brought” within two years.° It is a sound

principle of treaty construction that where the drafters used

two different words it “implies that the drafters of the

Convention understood the word[s]...to mean something

different..., for they otherwise logically would have used the

same word in each article.” Saks, 470 U.S. at 398. Applying

this principle, the British court reasoned that the use of

® Article 29(1) states:

(1) The right to damages shall be

extinguished if an action is not brought within 2

years, reckoned from the date of arrival at the

destination, or from the date on which the aircraft

ought to have arrived, or from the date on which

the transportation stopped.

(2) The method of calculating the period of

limitation shall be determined by the law of the

court to which the case is submitted.

49 Stat. at 3021. The French text states:

(1) L’action en responsibilité devra étra

intentée, sous piene de déchéancs, dans le délai de

deux ans 4 compter de |’ arrivée a destination ou du

jour ov I’aéronef aurait dQ arriver, ou de l’arrét du

transport.

(2) Le mode du calcul du délai est

déterminé par la loi du tribunal saisi.

49 Stat. at 3007.

12a

Ninth Circuit Opinion - 09/18/02

“intentee” in Article 29 must convey a “narrow meaning” of

brought, namely “initiated,” whereas the use of “portee” in

Article 28 must carry a broader meaning, namely

“commenced and pursued.” [1996] Q.B. at 707. The latter

meaning, Milor reasoned, would foreclose a forum transfer.

Plaintiffs ask us to adopt the Milor court’s textual

analysis here, but we decline to do so. Although the use of

two different words implies different meanings, we cannot

ascertain why the use of portee requires that the action must

be litigated to conclusion in the forum selected by the

plaintiff. The dictionary meanings of the French terms do not

compel this outcome.’ Moreover, the recently signed, but not

yet ratified, successor to the Warsaw Convention, the 1999

Montreal Convention, uses portee and intentee in a manner

that undermines the Milor court’s analysis. Article 33(1) of

the Montreal Convention, which is designed to replace Article

28(1) of the Warsaw Convention, states that “[a]n action for

damages must be brought, at the option of the plaintiff,” in

one of four jurisdictions, and uses the word portee, just like

the 1929 original. Convention for the Unification of Certain

7 See Cassell’s French and English Dictionary 251 (J.H. Douglas,

D. Girard & W. Thompson eds. 1986) (defining porter as “to

carry, to bear, to support; to endure; to bring; to take”); The

Oxford-Hachette French Dictionary 627 (M. Correard & V.

Grundy eds. 1994) (defining porter plainte as “to lodge a

complaint”); Cassell’s French and English Dictionary, supra, at

192 (defining intenter une action or un procés a or contre quelu’un

as “to enter or bring an action against someone”); The Oxford-

Hachette French Dictionary, supra, at 438 (defining intenter un

procés @ as “to sue” and intenter un action contre as “to bring an

action against”).

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Rules for International Carriage by Air done at Montreal on

28 May 1999, S. Treaty Doc. No. 106-45, art. 33;

Convention Pour L’ Unification de Certaines Régles Relatives

au Transport Aéren International, art. 33, available at

http://www. icao. int/icaonet/dcs/9740. pdf (last visited Aug. 6,

2002). The next paragraph, Article 33(2), states that “in

respect of damage resulting from the death or injury of a

passenger, an action may be brought before one of the courts

mentioned in paragraph 1 of this Article, or in the

territory....” Id. The French text of this Article employs

intentee rather than portee. The Montreal Convention’s usage

suggests that any difference in the meanings of these words is

not dispositive. In sum, we conclude that the text of Article

28 is ambiguous.

B. Purpose

Where the text of a treaty is ambiguous, we may look

to the purposes of the treaty to aid our interpretation. See

Tseng, 525 U.S. at 169-72. “The cardinal purpose of the

Warsaw Convention...is to ‘achiev[e] uniformity of rules

governing claims arising from international air

transportation.’” Tseng, 525 U.S. at 169 (quoting Eastern

Airlines, Inc. v. Floyd, 499 U.S. 530, 552, 113 L. Ed. 2d

569, 111 S. Ct. 1489 (1991)) (second alteration in original).

By including an article addressing jurisdiction, the signatories

8 Note that, whereas only the French text of the Warsaw

Convention is authentic, the French and English texts of the

Montreal Convention are equally authentic. Convention for the

Unification of Certain Rules for International Carriage by Air done

at Montreal on 28 May 1999, S. Treaty Doc. No. 106-45, text

following art. 57.

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manifested their intent to create not just uniform rules of

liability, but also uniform rules of jurisdiction.’ As the British

court concluded in Milor, through Article 28 the signatories

“create[d] a self-contained code on jurisdiction” that

“harmonise[s] different national views on jurisdiction.”

[1996] Q.B. at 707 (quoting lower court). Application of the

doctrine of forum non conveniens would undermine the goal

of uniformity. As the Milor court observed, “that harmony

would inevitably be to some extent disturbed if by the use of

the forum non conveniens doctrine a plaintiff would be denied

the right in some countries to sue in one of the four forums

nominated in article 28(1) of the Convention, but not denied

that right in others.” Jd. (quoting lower court). It also would

subject actions brought under the Convention to a doctrine

that itself is “vague and discretionary,” United States v. Nat’l

City Lines, Inc. , 334 U.S. 573, 581, 92 L. Ed. 1584, 68 S.

* The Supreme Court’s decision in American Dredging is not to the

contrary. There, the Court held that a state’s application of forum

non conveniens did not “‘interfere[] with the proper harmony and

uniformity’ of maritime law.” 510 U.S. at 451. Because maritime

law’s requirement of uniformity was intended to reach only those

matters that “bear upon the substantive right to recover,” forum

non conveniens was not inconsistent with that requirement. Jd. at

454. Here, by contrast, the existence of Article 28(1) manifests the

drafters’ intent to reach matters of jurisdiction and to require

uniformity in the rules governing the plaintiff's choice of forum.

See Andreas F. Lowenfeld & Allan I. Mendelsohn, The United

States and the Warsaw Convention, 80 Harv. L. Rev. 497, 498-99

& n.8 (1967) (describing Article 28(1)’s jurisdictional rules as an

element of the treaty’s uniformity).

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Ct. 1169 (1948), and that “is most unlikely to produce

uniform results.” Am. Dredging Co., 510 U.S. at 453.

The second purpose of the Convention is to balance

the interests of air carriers against those of passengers. See

Tseng, 525 U.S. at 170. Once again, the scope of this

objective extends beyond rules governing liability to those

concerning jurisdiction. By permitting the plaintiff to bring

suit in four limited forums, but granting the plaintiff the

option of choosing among those jurisdictions, the Convention

likewise struck “a compromise between the interests of air

carriers and their customers worldwide.” Tseng, 525 U.S. at

170. “[W]hen giving the plaintiff an option as to which of the

competent jurisdictions to choose as the forum, the high

contracting parties were conferring a deliberate benefit on a

plaintiff in circumstances where they had to weigh the

interests of a customer of an airline on the one hand and the

airline on the other.” Milor, [1996] Q.B. at 709. Permitting

defendants to utilize forum non conveniens to cancel out the

plaintiff's choice would undermine this balance just as it

would undermine uniformity. The doctrine of forum non

conveniens is inconsistent with the Convention’s dual

purposes of uniformity and balance.

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C. Drafting History’

The drafting history also supports plaintiffs’ position.

During the 1929 conference, the British delegation proposed

an amendment that would have expressly preserved a court’s

discretion to decline jurisdiction in an action brought under

the Convention, as long as the procedural rules of the forum

state permitted the exercise of such discretion. The British

proposal would have added the following paragraph to what

ultimately became Article 28:

None of the stipulations of this Article shall be

deemed to bind any court whatsoever to hear

a complaint which it would consider,

according to the principles of law and

procedure in force in the country to which the

said court belongs, as contrary to the rules of

justice, or as irrelevant to be submitted to it.

Minutes of the Second International Conference on Private

Aeronautical Law 298-99 (Oct. 4-12, 1929) (R. Horner & D.

10 The United States did not participate in the work of the drafting

committee and sent only an advisor to the Warsaw Conference. See

Lowenfeld & Mendelsohn, supra, 80 Harv. L. Rev. at 502;

Minutes of the Second International Conference on Private

Aeronautical Law 10 (Oct. 4-12, 1929) (R. Horner & D. Legrez

trans., 1975) (hereinafter “Minutes”). This fact does not, however,

lessen the significance of the drafting history. See, e.g., Chan, 490

U.S. at 137 (Brennan, J., concurring).

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Legrez trans., 1975) (hereinafter “Minutes”).'' The British

argued that “[a] stipulation of this nature would avoid all

interference in the discretionary power of the courts, and

would give them more latitude to repress vexatious litigation,

as in the case where the ‘forum’ of another country would be

naturally indicated as being that where the debates should take

place.” Jd. at 299." This proposal was referred to

committee, but what happened within the committee is

unclear. The official minutes of the Convention report only

that:

'! The British proposal would have amended Article 26 of the

preliminary draft. By the time of the final draft, Article 26 had been

renumbered as Article 28.

12 Although not using the term “forum non conveniens,” the

proposal accurately reflected the doctrine as it existed in England

at the time. See, e.g., Logan v. Bank of Scotland, [1906] 1 K.B.

141, 150 (reasoning that actions that involve “such vexation and

oppression that the defendant who objects to the exercise of the

jurisdiction would be subjected to such injustice that he ought not

to be sued in the Court in which the action is brought”); see also

Ronald A. Brand, Comparative Forum Non Conveniens and the

Hague Convention on Jurisdiction and Judgments, 37 Tex. Int’!

L.J. 467, 470-71 (2002) (describing development of forum non

conveniens in England); Alexander Reus, Judicial Discretion: A

Comparative View of the Doctrine of Forum Non Conveniens in the

United States, the United Kingdom, and Germany, 16 Loy. L.A.

Int’] & Comp. L.J. 455, 477-79 (1994) (same). For a discussion of

the development of the doctrine within the United States, see

Section Il, infra.

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There was a British proposal consisting in

adding a paragraph to say that the courts had

the right not to act when certain provisions

could be contrary to rules of law of the

country. The British Delegation did not insist.

Id. at 169.

This drafting history has been described as

“inconclusive.” Jn re Air Crash off Long Island, 65 F. Supp.

2d at 214. We do not know whether the amendment was

considered and rejected by the delegates or if it merely was

abandoned by the British. That said, the failed British

amendment is not irrelevant. That the British delegation

proposed an explicit incorporation of the doctrine of forum

non conveniens strongly suggests that the contracting parties

were cognizant of the doctrine and did not understand Article

28(2) as silently incorporating, or acquiescing in, its

application.

It is even more difficult to construe Article 28(2) as

silently incorporating or acquiescing in the application of

forum non conveniens when one considers the historical

context in which the British amendment was offered and,

more generally, in which the treaty was drafted and

negotiated. The Supreme Court repeatedly has counseled

against adopting an interpretation of the Convention that

would have been discordant or offensive to the majority of

signatories. In Floyd, where the Court held that Article 17 of

the Convention does not allow recovery for mental or psychic

injuries unaccompanied by physical injury, the Court declined

to read into the treaty a claim that “would not have been

recognized in many... countries represented at the Warsaw

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Convention.” 499 U.S. at 540. Similarly, in Zicherman v.

Korean Air Lines Co., 516 U.S. 217, 223, 133 L. Ed. 2d

596, 116 S. Ct. 629 (1996), the Court refused to construe the

Convention as permitting an action for nonpecuniary harm

where “[mlJany signatory nations...did not, even many years

after the Warsaw Convention, recognize a cause of action for

nonpecuniary harm.” We will not adopt the construction that

“would be controversial for most signatory countries.” Floyd,

499 U.S. at 552.

Following these rules of construction, we do not infer

from the treaty’s incorporation of local procedural law that

the drafters acquiesced in the application of forum non

conveniens, a concept that was (and is) both alien to and

unwelcome by the majority of the contracting parties. Forum

non conveniens, which permits a court having jurisdiction to ’

decline it, is a feature of the common law. “[T]he

Convention,” however, “was drafted by civil law jurists, to

whom forum non conveniens was an alien concept.” Jn re Air

Crash off Long Island, 65 F. Supp. 2d at 214; see also Ronald

A. Brand, Comparative Forum Non Conveniens and the

Hague Convention on Jurisdiction and Judgments, 37 Tex.

Int’] L.J. 467, 468 (2002) (“The doctrine of forum non

conveniens generally is unknown in legal systems following

the continental civil law model.”); James L. Baudino,

Comment, Venue Issues Against Negligent Carriers -

International and Domestic Travel: The Plaintiff's Choice?,

62 J. Air L. & Com. 163, 192-95 (1996) (surveying civil and

common law countries’ current practices regarding

discretionary jurisdiction).

In this historical light, it is unreasonable to infer that

the “continental jurists,” Floyd, 499 U.S. at 536, would have

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succumbed to the British, common law point of view. The

more reasonable inference is that the delegates, if they had

intended to permit the application of forum non conveniens,

would have done so explicitly. Paraphrasing the Supreme

Court’s statement in Floyd: “Because such a remedy was

unknown in many, if not most, jurisdictions in 1929, the

drafters most likely would have felt compelled to make an

unequivocal reference to [forum non conveniens] if they had

specifically intended to allow such [a procedure].” Floyd, 499

U.S. at 545; see also Milor, [1996] Q.B. at 708 (“[It] would

be surprising if the high contracting parties had preserved to

that small minority of countries which applied the doctrine of

forum non conveniens a power to affect the choice of the

forum in which a dispute should be tried by a process

unknown to the majority of the parties.”)."°

D. Postratification Understanding

Plaintiffs contend that more recent history supports the

view that the language in Article 28(2), standing alone, does

not permit forum non conveniens. In 1999, delegates gathered

'3 We also cannot assume that the drafters would have understood

the doctrine of forum non conveniens to be a “[q]Juestion{] of

procedure,” as that term was used in Article 28(2). Half a century

after the Convention was drafted, it remained an unsettled question

in the United States whether forum non conveniens constituted a

procedural rule within the meaning of Erie R. Co. v. Tomkins, 304

U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). See Piper Aircraft

Co. v. Reyno, 454 U.S. 235, 248 n.13, 70 L. Ed. 2d 419, 102 S.

Ct. 252 (1981) (declining to reach “the Erie question”); cf. Am.

Dredging Co., 510 U.S. at 453 (describing forum non conveniens

as procedural, although not in the context of Erie analysis).

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in Montreal to draft a treaty, commonly known as the

Montreal Convention, to replace the Warsaw Convention."

Article 33 of the new treaty is similar to Article 28 of the old

one.’ It specifies a set of forums in which jurisdiction is

'4 The official name of the new treaty, see Section I.A., supra, is

the Convention for the Unification of Certain Rules for

International Carriage by Air done at Montreal on 28 May 1999, S.

_ Treaty Doc. No. 106-45. The treaty was completed and signed in

1999, but will not take effect (and replace the Warsaw Convention)

until it has been ratified by the requisite number of countries.

'5 Article 33 provides:

1. An action for damages must be brought, at the

option of the plaintiff, in the territory of one of the

States Parties, either before the court of the

domicile of the carrier or of its principal place of

business, or where it has a place of business

through which the contract has been made or

before the court at the place of destination.

2. In respect of damage resulting from the death or

injury of a passenger, an action may be brought

before one of the courts mentioned in paragraph 1

of this Article, or in the territory of a State Party

in which at the time of the accident the passenger

has his or her principal and permanent residence

and to or from which the carrier operates services

for the carriage of passengers by air, either on its

own aircraft, or on another carrier’s aircraft

pursuant to a commercial agreement, and in which

that carrier conducts its business of carriage of

passengers by air from premises leased or owned

by the carrier itself or by another carrier with

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proper and assigns to the plaintiff the choice of forum. Article

33(4), like Article 28(2), incorporates the procedural law of

the forum state. In support of their contention, plaintiffs cite

the following secondary account of the proceedings by one of

the participants:

Attempts were made by delegates from

common law states to introduce language

which would permit the application of the

doctrine of forum non conveniens by courts in

which proceedings were commenced.

Considerable objections were made by

delegates from various civil law jurisdictions,

who complained that the doctrine was

unknown in their jurisdictions and ought not to

be imposed upon them by international treaty.

which it has a commercial agreement.

3. For the purposes of paragraph 2,

(a) “commercial agreement” means an agreement,

other than an agency agreement, made between

carriers and relating to the provision of their joint

services for carriage of passengers by air;

(b) “principal and permanent residence” means the

one fixed and permanent abode of the passenger at

the time of the accident. The nationality of the

passenger shall not be the determining factor in this

regard.

4. Questions of procedure shall be governed by the

law of the court seised of the case.

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The US delegation asserted confidently that

forum non conveniens motions would be

appropriate in treaty cases notwithstanding the

absence of substantial case law demonstrating

successful applications in that jurisdiction, and

the absence of any provision in the final text of

the Convention shows that the civil law

jurisdiction delegates prevailed on this issue.

Sean Gates, The Montreal Convention of 1999: A Report on

the Conference and on What the Convention Means for Air

Carriers and Their Insurers, Aviation Q. 186, 189 (1999).'°

The official minutes of the Montreal Convention tell

a less conclusive story, however. The United States offered

an amendment that would have made explicit a country’s right

to apply forum non conveniens, provided that the country’s

procedural rules allowed the doctrine. The United States’

proposal would have amended the draft of Article 33(4) to

read: “Questions of procedure shall be governed by the law

of the Court seised of the case, including the doctrine of

forum non conveniens or other similar doctrines.” 1

International Civil Aviation Organization, Jnternational

Conference on Air Law, Montreal 10-28 May 1999, at 159

(2001) (Minutes) (proposed addition in italics); see also id. at

179-80. Notwithstanding the United States’ proposal, the final

16 Gates, legal advisor to the international Union of Aviation

Insurers, participated as an observer in the drafting of the Montreal

Convention. See 1 International Civil Aviation Organization,

International Conference on Air Law, Montreal 10-28 May 1999,

at 28, 161 (2001) (Minutes).

Ninth Circuit Opinion - 09/18/02

version of the Montreal Convention did not include the

proposed language.

The drafting history, however, does not establish

conclusively that the delegates understood the United States’

proposal as a change to the Warsaw regime. Nor does it

suggest that the absence of the United States’ proposal dealt

a blow to forum non conveniens. On the contrary, the drafting

history of the Montreal treaty reflects a lack of a shared

understanding on the issue that occupies us here: whether the

Warsaw Convention language, standing alone, permits or

precludes application of forum non conveniens. Every side of

this issue found a voice at the Montreal conference. For

instance, the United States delegate at one point expressed his

opinion “that the doctrine of forum non conveniens would be

applied ...in his country whether the [treaty] prescribed that

or not.” /d. at 159. The British delegate, by contrast, voiced

the view that the Warsaw Convention entitled a plaintiff to an

absolute choice among four forums, a choice that could not be

undermined by forum non conveniens. Jd. at 162. The

drafting history lacks any conclusive statement by the

remaining delegates accepting or rejecting either of these

positions. In sum, although forum non conveniens was

discussed at length in Montreal, the drafting history does not

paint a coherent picture of the parties’ understanding of the

Warsaw Convention."’

'7 We offer no opinion as to whether the text and drafting history

of the Montreal Convention demonstrate whether forum non

conveniens would be available in an action brought under that as-

yet-unratified treaty.

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The history of other international agreements,

however, supports the conclusion that the Warsaw

Convention’s silence on forum non conveniens does not

permit that doctrine’s application. For instance, the Brussels

Convention, which governs enforcement of judgments among

European Union countries, was first agreed to in 1968, when

only civil law nations were members of the Union.'* As

drafted, the treaty contained no explicit forum non conveniens

doctrine and was construed as barring the doctrine’s

application. Alan Reed, To Be or Not to Be: The Forum Non

Conveniens Performance Acted Out on Anglo-American

Courtroom Stages, 29 Ga. J. Int’| & Comp. L. 31, 84-85,

106-12 (2000). When the United Kingdom and Ireland joined

the European Economic Community in 1979, they tried to

negotiate the introduction of a forum non conveniens clause

in the Convention, but their efforts were rebuffed. Martine

Stuckelberg, Lis Pendens and Forum Non Conveniens at the

Hague Conference, 26 Brook. J. Int’1 L. 949, 962-63 (2001).

Moreover, when a multilateral treaty has meant to

allow application of the doctrine, the treaty has said so

explicitly. In this respect, the recent negotiating history of the

Hague Conference on Private International Law is instructive.

The unfinished task of the Hague Conference is the

formulation of an international convention on jurisdiction and

enforcement of foreign judgments in civil and commercial

matters. The participants, including the United States,

'8 The formal name of the treaty is the Convention on Jurisdiction

and Enforcement of Judgements in Civil and Commercial Matters,

Sept. 27, 1968.

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vigorously debated the availability of forum non conveniens.

See Fritz Blumer, Jurisdiction and Recognition in

Transatlantic Patent Litigation, 9 Tex. Intell. Prop. L.J. 329,

392-93 (2001). This debate culminated in a compromise

expressly allowing “suspension of a case, in exceptional

circumstances, if the court seised is clearly inappropriate to

decide the case and if a court of another State has jurisdiction

and is clearly more appropriate to resolve the dispute.”

Stuckelberg, supra, 26 Brook. J. Int’] 14296 L. at 971. The

draft treaty therefore adopts a version of the doctrine of forum

non conveniens that balances common law countries’ interests

against those of civil law countries. The explicit incorporation

of a compromise version of forum non conveniens in the draft

Hague treaty supports the conclusion that forum non

conveniens was not silently incorporated in the Warsaw

Convention. Cf. Floyd, 499 U.S. at 545 (reasoning that the

Warsaw Convention signatories did not intend to permit

recovery for purely psychic injuries where a later

international transport treaty included an explicit reference to

mental injury that had not been included in the Warsaw

treaty).

Il.

The only other circuit to have addressed the issue

presented in these appeals is the Fifth Circuit, which held

“that article 28(1) of the Warsaw Convention does not prevent

a district court from considering and applying the doctrine of

forum non conveniens.” Jn re Air Crash Disaster Near New

Orleans, Louisiana on July 9, 1982, 821 F.2d 1147, 1162

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(5th Cir. 1987) (en banc).'? The persuasiveness of the Fifth

Circuit’s decision is limited in several respects. The decision

did not consider the purposes, drafting history and

postratification understanding of the parties, all of which are

pertinent tools of construction articulated by the Supreme

Court in decisions postdating the Fifth Circuit’s analysis.

Moreover, the Fifth Circuit in 1987 did not have the benefit

of the more recent Milor decision.

In any event, we are not persuaded by the court’s

reasoning. Observing that, under the plaintiffs’ construction,

“American courts could become the forums for litigation that

has little or no relationship with this country,” the court found

it hard to “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.” Jd.

We respectfully disagree. There are many possible reasons

the United States would have chosen to ratify even knowing

'9 As noted, one district court has agreed with the Fifth Circuit.

See In re Air Crash off Lang Island New York, on July 17, 1996,

65 F. Supp. 2d 207, 214 (S.D.N.Y. 1999). The doctrine also has

been applied in other federal cases in which the issue of the Warsaw

Convention’s preemptive effect was not discussed. See, e.g., Coyle

v. P.T. Garuda Indonesia, 180 F. Supp. 2d. 1160, 1170 (D. Or.

2001); Robert Bosch Corp. v. Air France, 712 F. Supp. 688, 691

(N.D. Ill. 1989); Intel Corp. v. Malaysian Airline Sys., 652 F.

Supp. 1101, 1102 (N.D. Cal. 1987).

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that the doctrine of forum non conveniens would not be

available in actions brought under the treaty.”

At the time of the drafting and ratification of the

Convention, the forum non conveniens doctrine was not the

“valuable procedural tool” that it might be considered today.

The doctrine traces its origins to eighteenth century Scottish

law, Am. Dredging Co., 510 U.S. at 449, but in 1929 the

doctrine was only beginning to take hold in the United States.

United States courts applied the doctrine sparingly, “as a

nameless principle of law through which a court could decline

to exercise jurisdiction, particularly in maritime cases

between a foreign plaintiff and foreign defendant.” Michael

T. Manzi, Comment, Dow Chemical Company v. Castro

Alfaro: The Demise of Forum Non Conveniens in Texas and

One Less Barrier to International Tort Litigation, 14 Fordham

Int’l L.J. 819, 823 (1990/1991). The Supreme Court first

approved the principle of a court’s discretionary power to

decline jurisdiction in 1929. See Douglas v. New York, New

Haven & Hartford R.R. Co., 279 U.S. 377, 73 L. Ed. 747,

49 S. Ct. 355 (1929) (holding that a state court did not violate

the Privileges and Immunities Clause of the Constitution by

declining jurisdiction in an action between citizens of another

° No legislative history exists regarding the United States’

ratification. See Trans World Airlines, Inc. v. Franklin Mint Corp.,

466 U.S. 243, 273, 80 L. Ed. 2d 273, 104 S. Ct. 1776 (1984)

(Stevens, J., dissenting) (“The President submitted the Convention

to the Senate in 1934, which gave its advice and consent by voice

vote without committee hearings, committee reports, or floor

debate.”) (citing 78 Cong. Rec. 11582 (1934)).

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state).”' Even after that date, “state and federal courts did not

begin to employ forum non conveniens widely except in

maritime cases, and cases involving the internal affairs of a

corporation.” Manzi, supra, 14 Fordham Int’! L.J. at 823. It

was not until 1932, in Canada Malting Co. v. Paterson S.S.,

Ltd. , 285 U.S. 413, 76 L. Ed. 837, 52 S. Ct. 413 (1932), that

the Supreme Court held that the exercise of discretionary

powers by United States courts in declining jurisdiction

should not be restricted to admiralty cases. Only in 1941, in

Baltimore & Ohio R.R. Co. v. Kepner, 314 U.S. 44, 55-56,

86 L. Ed. 28, 62 S. Ct. 6 (1941) (Frankfurter, J., dissenting),

did one justice of the Court describe the doctrine as “firmly

imbedded in our law.” Not until Gulf Oil Corp. v. Gilbert,

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

forum non conveniens doctrine finally enjoy([Jexpress

acknowledgment.” Reus, supra, 16 Loy. L.A. Int’l & Comp.

L.J. at 461; see also Stuckelberg, supra, 26 Brook. J. Int’! L.

at 955 (“Until the middle of the twentieth century, the

exception was very limited and a dismissal only could be

ordered if the forum was ‘oppressive or vexatious’ to the

defendant.”). “{T]he doctrine of forum non conveniens was

not fully crystalized” until the 1947 Gilbert decision. Piper

Aircraft, 454 U.S. at 248.

In sum, that the doctrine of forum non conveniens

might be characterized'as a valuable procedural tool today

does not mean that it was so in 1929, when the participating

21 Commentator Paxton Blair first dubbed the American courts’

application of discretionary dismissal “forum non conveniens,”

adopting the Scottish term, in 1929. See Paxton Blair, The Doctrine

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

Rev. 1, 21 (1929).

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nations applied the finishing touches to the treaty, or even in

1934, when the United States ratified it. Thus, we have no -

difficulty imagining that the United States would have

sacrificed application of this modestly important procedural

tool to obtain the benefits of the Convention. As Sir Alfred

Dennis, the head of the British delegation, remarked, “As

regards the British Government, the sole reason which it has

for entering into this Convention is the desire to achieve

uniformity....The draft of the Convention is contrary, on

several points, to our laws and to our customs, but we have

decided to make sacrifices to obtain this uniformity.” Minutes

at 35-36. Even in the United States, we have never considered

the doctrine to be of such importance that it should override

all other concerns. See, e.g., United States v. Nat’l City

Lines, Inc. , 334 U.S. 573, 596-97, 92 L. Ed. 1584, 68 S. Ct.

1169 (1948) (holding that forum non conveniens is not

available in actions brought under the Clayton Act).

Ill.

Although the text of the Warsaw Convention is

ambiguous, the purposes and drafting history of the treaty, as

well as evidence of the parties’ postratification understanding

and treatment of the issue in other treaties and by othér

courts, persuade us that the contracting parties did not intend

to permit the plaintiff's choice of national forum to be negated

by the doctrine of forum non conveniens. We therefore hold

that Article 28(1) of the Warsaw Convention precludes a

federal court from dismissing an action on the ground of

forum non conveniens.

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Ninth Circuit Opinion - 09/18/02

The reach of our decision is limited to the application

of forum non conveniens to dismiss a case in favor of a forum

in another country. Our decision does not affect whether a

particular United States court has subject matter jurisdiction

over a case; nor does it alter a federal court’s power to

transfer a case within the United States pursuant to 28 U.S.C.

§ 1404(a). See In re Air Crash Disaster Near New Orleans,

821 F.2d at 1161 n.21 (explaining that Article 28(1) relates

only to whether jurisdiction in the international or treaty sense

is established and does not determine the power of a particular

United States court, under federal statutes and practice, to

hear a Warsaw Convention case or affect whether venue is

proper and convenient in a particular federal court); Smith v.

Canadian Pac. Airways, Ltd., 452 F.2d 798, 800 (2d Cir.

1971) (same).

CONCLUSION

We reverse the orders of the district court dismissing

these actions on the basis of forum non conveniens. We

therefore do not reach the remaining issues raised in these

appeals.”

REVERSED AND REMANDED

* Plaintiffs argue that the district court erred in the choice of law

analysis included in its decision to dismiss on the basis of forum

non conveniens, an issue mooted by our reversal on other grounds.

To the extent choice of law issues remain in the case, nothing we

decide today should be interpreted as a validation of the district

court’s choice of law analysis as articulated in the forum non

conveniens context.

32a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 99-5061 MJJ

and related cases:

C 99-5062 MJJ, 99-5063 MJJ, 99-5308 MJJ

[Filed December 19, 2000]

KEIKO HIRASE,

Plaintiffs,

UNITED AIRLINES, INC. and

UAL CORPORATION,

Defendants.

a i i ee a a a

ORDER DISMISSING PLAINTIFFS’ ACTIONS FOR

FORUM NON CONVENIENS

Before the Court is Defendants United Airlines, Inc.

and UAL Corporation’s (collectively referred to as “United”)

motion to dismiss this action and three related cases on

grounds of forum non conveniens. Having carefully

considered the papers submitted by the parties, and having

had the benefit of oral argument on December 12, 2000, the

Court hereby GRANTS the motion.

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BACKGROUND

These four related cases arise from the incident

involving United Airlines Flight 826 which encountered

turbulence while en route from Tokyo to Honolulu on

December 28, 1997. Fourteen other cases arising from the

same incident were previously before this Court, but in an

order filed January 7, 2000, the Court dismissed those actions

on grounds of forum non conveniens. The Court finds that

the claims made by the plaintiffs in the instant four cases, as

well as the alleged injuries which underlie those claims, are

substantially analogous to the claims and injuries alleged in

the fourteen previously dismissed actions. Therefore, the

Court incorporates into this Order all of the findings and

conclusions of its January 7, 2000 Order.

Incorporation of the Court's January 7, 2000 Order is

especially appropriate given that the arguments offered by

United and the plaintiffs for the instant motion significantly

overlap with the arguments made regarding the forum non

conveniens motion in the fourteen dismissed actions. Plaintiffs

do offer several new arguments in their briefing of the current

motion. However, as discussed in detail below, none of the

new arguments persuade the Court to reach a different result

than that reached in the fourteen previously dismissed cases.

To the contrary, Japan, and not the United States, continues

to provide the proper forum for legal actions arising from the

Flight 826 incident.

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DISCUSSION

A. Legal Standard

Dismissal on grounds of forum non conveniens is

permissible where: (1) an adequate alternative forum exists

and (2) the balance of private and public factors favors

dismissal. See Contact Lumber v. P.T Moges, 918 F.2d 1446,

1449 (9th Cir. 1990). A forum non conveniens determination

is committed to the sound discretion of the trial court. See

Piper Air v. Reyno, 454 U.S. 235, 257 (1981). Thus, where

the court considers all relevant public and private interest

factors, and where the balancing of those factors is

reasonable, substantial deference is accorded. See id. “If the

balance of conveniences suggest that trial in the chosen forum

would be unnecessarily burdensome for the defendant or the

court, dismissal is proper.” Jd. at 256 n. 23.

B. Plaintiffs’ New Arguments Against Dismissal

For the most part, the plaintiffs’ Opposition to

United’s motion to dismiss the cases presently before the

Court merely repeats or expands upon the arguments they

made in the fourteen dismissed actions. As discussed in

Section C, below, dismissal on grounds of forum non

conveniens remains appropriate. First, however, the Court ~

finds that none of the new arguments offered in the plaintiffs’

Opposition preclude dismissal on grounds of forum non

conveniens.

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1. Access to Liability Evidence/ NTSB Report

The plaintiffs contend that the United States is the

proper forum for these cases because all evidence regarding

United’s potential liability is located in the United States. To

support this argument, the plaintiffs now rely extensively on

the National Transportation Safety Board’s (“NTSB”) draft

investigation report of the Flight 826 incident. According to

the plaintiffs, the NTSB conducted a thorough investigation of

the incident, and all of the NTSB’s findings are located in the

United States. Moreover, the plaintiffs contend that the

evidence relied on by the NTSB is found in the United States.

In particular, the NTSB interviewed many United States

residents and examined numerous United documents which

are located in the United States.

The circumstances surrounding the NTSB’s draft

report, however, are irrelevant to this Court’s forum non

conveniens determination because United’s liability is of little

consequence in these particular cases. These four related

actions are governed by the Warsaw Convention (the

“Convention”), the IATA Intercarrier Agreement; the

Agreement on Measures to Implement the IATA Intercarrier

Agreement, and the tariffs filed. by United with the

Department of Transportation. Under Article 17 of the

Convention, carriers are strictly liable for accidents causing

passenger injury, however, Article 22(1) limits recoverable

compensatory damages arising under Article 17 to $75,000.

The damages cap does not apply where the carrier’s willful

misconduct caused the accident. See Article 25(1). Carriers

may also avail themselves of two defenses under the

Convention. Article 20(1) provides a defense to liability

where the carrier can show that it took all measures to prevent

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and avoid harm, while Article 21 provides a defense based on

a passenger’s contributory negligence.

Application of the Convention provisions to United has

been modified by United’s tariffs. In particular, United has

waived Article 22(1)’s $75,000 limitation on liability and

United has waived the preventive-measures defense provided

by Article 20(1) as to that portion of such a claim which does

not exceed 100,000 special drawings rights (as of October 13,

2000, 100,000 Special Drawing Rights equaled $129,356.40).

These tariff provisions, together with Article 17’s

imposition of strict carrier liability, have effectively removed

liability as a disputed issue in the Flight 826 cases. The

plaintiffs’ argue that liability is at issue because if they are

able to prove willful misconduct, the $75,000 liability limit

provided by Article 22(1) will not apply. However, this

argument has no weight given the fact that United has already

foregone Article 22(1)’s limitation on recovery.

Furthermore, United’s tariffs create the possibility that

plaintiffs will obtain a recovery that is greater than that

provided for under the Convention provisions. Although

Article 20(1) potentially permits a carrier to avoid all liability

if it can show that it took all measures to prevent passenger

harm, United, in its tariffs, has agreed only to invoke this

defense against that portion of a claim which exceeds 100,000

special drawings rights.

Of course, establishing a preventive-measures defense

under Article 20(1) involves evidence of United’s liability.

However, this alone does not make this Court a convenient

forum for purposes of forum non conveniens. Since United’s

underlying liability for passenger injury is presumed under the

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Convention, the primary issue in the case will continue to be

the amount of damages recoverable by the plaintiffs.

Meanwhile, if United intends to use the defense provided by

Article 20(1), it will have the burden of proving that its

preventive measures should reduce its liability (to the extent

that the claim exceeds 100,000 special drawings rights). Any

inconvenience suffered by United in meeting this burden will

be caused by its own decision to act as the proponent of an

affirmative defense.

A contributory negligence defense under Article 21

will also implicate liability issues. Yet, this defense revolves

around the liability of the plaintiffs. Such evidence exists in

Japan with the plaintiffs themselves, their doctors, other

passengers aboard Flight 826, and those with whom the

plaintiffs discussed the incident.

Pursuant to the provisions of the Warsaw Convention

and United’s tariffs, United’s liability for the Flight 826

incident is not a disputed issue in these cases. Therefore,

even assuming that evidence of United’s liability is located in

the United States, the United States in not necessarily the

proper forum for resolving the plaintiffs’ claims.’

' The Court also finds that the particular liability evidence relied

on by the plaintiffs, all of which derives from the NTSB’s draft

report, does not preclude application of the forwm non conveniens

doctrine. First, the NTSB has not yet issued its final report on the

Flight 826 incident. Even after a final report is issued, its use will

be limited in a U.S. court. Under 49 U.S.C. § 1154(b), any

conclusions contained in an NTSB report cannot be introduced at

trial. Further, to the extent that the NTSB report contains relevant

evidence, it may be used in legal proceedings in Japan.

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~ District Court Order - 12/] 9/00

y a Montreal Protocol No. 4

A new argument offered by the plaintiffs is based on

Montreal Protocol No. 4. According to the plaintiffs, that

international agreement bars the application of the forum non

conveniens doctrine to Warsaw Convention actions.

The Montreal Protocol No. 4, however, does not

apply to this action because it was not ratified by the United

States Senate until September 28, 1998, nine months after the

Flight 826 incident, and the terms of the Montreal Protocol

are not retroactive. See El Al Israel Airlines, Ltd. v. T: seng,

525 U.S. 155, 160-161 (1999) (Supreme Court acknowledged

that the exclusivity question presented had been “settled

prospectively” by the Montreal Protocol, but then went on to

consider the exclusivity question as to claims that pre-dated

ratification of the Montreal Protocol). Meanwhile, even if the

Montreal Protocol No. 4 applied to these cases, it does not

forbid the application of the forum non conveniens doctrine to

cases involving the Convention. The _ plaintiffs

unconvincingly argue that because the Montreal Protocol No.

Also, the plaintiffs disregard the involvement of Japanese

authorities in the Flight 826 incident. The Aircraft Accident

Investigation Commission (the “AAIC”) of the Japanese Ministry

of Transportation conducted an investigation of the Flight 826

incident, and its findings shed light on two key issues in these

cases. The AAIC investigated the injuries suffered by passengers

of Flight 826, and thus its report will be relevant to damage

determinations. The AAIC also determined whether passengers

were wearing seatbelts when Flight 826 encountered turbulence,

and those findings will provide crucial evidence on the question of

contributory negligence.

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4 is silent on the issue of forum non conveniens, the doctrine

was necessarily rejected by its signatories. A review of the

evidence submitted in support of the plaintiffs’ Opposition

reveals that although civil law nations did not want the forum

non conveniens doctrine explicitly permitted by the Montreal

Protocol No. 4, they did not in any way demonstrate an intent

to forbid the doctrine’s application in Convention cases.

United States courts have consistently applied the

forum non conveniens doctrine to actions governed by the

Convention. See, e.g., In re Air Crash Disaster Near New

Orleans, La., 821 F.2d 1147, 1159 (Sth Cir. 1987); In re Air

Crash off Long Island New York, on July 17, 1996, 65

F.Supp.2d 207 (S.D.N.Y. 1999); Byrne v. Japan Airlines,

1984 WL 1343 (S.D.N.Y. 1984); Lu v. Air China, 1992 WL

453646 (E.D.N.Y. 1992). These decisions are not

incongruent with the Convention’s forum provision: Article

28 provides four possible forums for claims governed by the

Convention, and is silent as to whether the forum non

conveniens doctrine applies when the chosen forum is

inconvenient.

Contrary to the plaintiffs’ contentions, the Montreal

Protocol No. 4 does not preclude application of the forum non

conveniens doctrine to the four cases currently before the

Court. '

a Purported Changes to the Law of

Forum Non Conveniens

Plaintiffs incorrectly argue in their Opposition brief

that recent clarifications of the forum non conveniens doctrine

40a

TE CI HRN SO SR

AS ie a ARE NS we an ve ne

District Court Order - 12/19/00

require a different outcome in these four cases than that

reached in the 14 previously dismisses cases.

First, Judge Legge’s order in Jn re Air Crash off Point

Magu, California (MDL-001343 CAL) does not create any

new rights to use or access NTSB or carrier investigation

reports. Judge Legge ordered the preservation of relevant

evidence of a crash for possible future use in litigation. Such

an order is consistent with previously existing law, namely,

49 U.S.C. § 1154(b) which allows facts, but not conclusions,

from an investigation report to be used at trial.

Second, the Ninth Circuit’s decision in Monegro v.

Rosa, 211 F.3d 509 (9th Cir. 2000) did not alter the

application of the forum non conveniens doctrine in this

circuit. The forum non conveniens analysis in Monegro, like

this Court’s analysis in its January 7, 2000 Order, was guided

by the legal standards set forth in Piper Aircraft v. Reyno, 454

U.S. 235 (1981). Admittedly, the Monegro court cited to a

forum non conveniens standard that, through its word choice,

could disfavor motions based on the forum non conveniens

doctrine: “the standard to be applied [to a motion to dismiss

on the ground of forum non conveniens] is whether...

defendants have made a clear showing of facts which...

establish such oppression and vexation of a defendant as to be

out of proportion to plaintiff's convenience, which may be

shown to be slight or nonexistence.” Monegro, 211 F.3d at

514 (quoting Cheng v. Boeing Co. , 708 F.2d 1406, 1410 (9th

Cir. 1983) (emphasis added). However, this statement of the

forum non conveniens standard is not new - it comes from a

1983 case — nor does it mark a departure from previous Ninth

Circuit law - a moving defendant continues to have the

burden of showing that the inconveniences placed on it by the

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plaintiffs chosen forum significantly outweigh any

convenience enjoyed by the plaintiff.

Finally, Judge Breyer’s recent decision in Husain v.

Olympic Airways (C 99-1400 CRB) does not alter this Court’s

reasoning from the fourteen dismissed cases. Judge Breyer

acknowledged that contributory negligence is a defense in

Warsaw Convention actions, and further concluded that

liability under the Convention is apportioned according to the

comparative responsibility or causation of the parties. The

Husain decision does not alter the liability issues in the instant

cases. As explained above, United is strictly liable for

accidents causing injury to a passenger, but may reduce the

amount of recoverable compensatory damages by proving it

took measures to prevent or avoid injury or by showing the

contributory negligence of the passenger.

In sum, the plaintiffs have failed to point to any new

case law which forecloses dismissal of the instant four cases

on grounds of forum non conveniens.

Forum Non Conveniens

1. Adequacy of Japan As

Alternative Forum

Japan offers an adequate alternative forum for

plaintiffs’ pursuit of their legal claims. First, United is

amenable to process in Japan, and even if it was not, it has

agreed to submit to the personal jurisdiction of the court in

Japan for purposes of this litigation. See Piper, 454 U.S. at

254 n.22. Second, Japan is not so “clearly unsatisfactory” a

forum as to warrant denial of forum non conveniens dismissal.

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See id. at 254-55; Lockman Found. v. Evangelical Alliance

Mission, 930 F.2d 765, 769 n.3 (recognizing that an adequate

alternative forum existed in Japan and cataloging cases in

which the basic institutional soundness of Japan’s legal system

has been confirmed).

2. Private Interest Factors Favor Japan

The determination of what forum is most convenient

rests upon several “private interest” and “public interests”

factors which a court should consider and balance when

presented with a motion to dismiss for forum non conveniens.

See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-9 (1947).

Turning first to the private interest factors, this Court finds

that the private interests in these four related cases favor

Japan as the proper forum.

First, the relative ease of access to sources of proof

leads to a conclusion that Japan is the proper forum for these

cases. As discussed earlier, proof of United’s liability is, at

best, only tangentially relevant to these cases because United

is strictly liable under the Warsaw Convention and has waived

that agreement’s limitation on monetary recoveries. In

contrast, proof as to the plaintiffs’ damages will be crucial in

these actions. Such evidence is almost exclusively located in

Japan. All of the plaintiffs in these four related cases are

residents and citizens of Japan. They received medical care

for their injuries in Japan, and if they lost wages due to their

injuries, they lost such wages from their employment in J apan

for Japanese employers. The only damages evidence located

in the U.S. comes from written forensic reports prepared by

experts who were hired by the plaintiffs’ attorneys for

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purposes of this litigation. Considerations regarding the

Court’s access to proof clearly favor a trial in Japan.

The location and availability of witnesses also favors

litigation in Japan. Most of the witness on the pertinent issue

of the plaintiffs’ damages reside in Japan. Any unwilling

witnesses, would escape the reach of compulsory process

from this Court. In addition, the expense of transportation of

willing witnesses imposes another obstacle to litigation in a

United States court.

Language problems would further hinder litigation in

the United States. Much of the plaintiffs’ documentary and

testimonial case-in-chief would be in Japanese, and as such,

_ would require translation for trial. This burden is especially

problematic with respect to the issue of damages since each

plaintiff has individual injuries, individual treating physicians,

and separate family members testifying as to their damages.

Litigation in Japan may also face language and translation

difficulties if the NTSB’s accident report is admitted as

evidence. However, given that the issue of liability - for

which the NTSB report is relevant - is not central to these

cases, the burden created by the use of a foreign language

falls more heavily on a United States court. Overall, this

factor weighs in favor of Japan as the proper forum.

de Public Interest Factors Favor Japan

The public factors governing a court’s forum non

conveniens analysis include the administrative difficulties

placed on congested courts, the imposition of jury duty on the

people of a community which has no relation to the litigation,

and the appropriateness of conducting a trial in a forum “that

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is at home with the state law that must govern the case, rather

than having a court in some other forum untangle problems in

conflict of laws, and in laws foreign to itself.” Gulf Oil, 330

U.S. at 509. After considering these factors, the Court finds

that the public interest factors favor Japan as the proper

forum.

The congested dockets of this Court weigh in favor is

dismissing the remaining Flight 826 cases because they have

little connection to this forum. More importantly, the

attenuated connection of this district’s jury venire to the well-

being of Japanese citizens weighs heavily against burdening

a jury in this forum, particularly in these cases where the trial

promises to be lengthy and linguistically problematic. See

Pain v. United Technology Corp., 637 F.2d 775, 792 (D.C.

Cir. 1980).

Furthermore, choice of law considerations do not

support the convenience of a United States court for these

cases.” Under Article 25(1) of the Convention which governs

carrier liability in cases of willful misconduct, the law of the

* United adequately raised the issue of choice of law in its opening

motion for dismissal. Accordingly, the proper place for plaintiffs

to respond to this issue was in their opposition brief. Plaintiffs did

so, however, they also sought to introduce a voluminous “offer of

proof” subsequent to the filing of United’s reply brief. The

plaintiffs’ submission amounts to an improper sur-reply.

Moreover, it attempts to present argument on issues for which

plaintiffs already had an opportunity to address during the ordinary

briefing process. Consequently, the Court disregarded these

Supplemental materials in considering the merits of the pending

motion.

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forum where the case is submitted will apply. Moreover, the

choice of law rules of that forum will apply. See Insurance

Co. of North Amer. v. Federal Express Corp. , 189 F.3d 914,

919-920 (9th Cir. 1999). In California, the choice of law rules

employ the government interest approach. The plaintiffs in

this case make an extensive argument as to why, under the

governmental interest approach, American rather than

Japanese law should control in this case. This argument,

however, suffers from several flaws. First, the entire

argument only relates to the particular issue of willful

misconduct under Article 25, which as explained above, is not

relevant in this action due to the terms of United’s tariffs.

Second, the conclusion that American law should govern is

based on the plaintiffs’ disregard for Japan’s interest in this

case. As demonstrated by the AAIC’s investigation of the

Flight 826 incident, Japan has an interest in the plaintiffs’

cases. Thus, contrary to the plaintiffs’ Opposition brief, it is

not imminently clear that the government interest approach

favors the application of American law. Since it is unclear

whether American or Japanese law would apply in these

cases, choice of law concerns are neutral with respect to the

Court’s forum non conveniens analysis. |

CONCLUSION

Based on the foregoing, and for the reasons set forth

in the Court’s January 7, 2000 Order in the fourteen

previously dismissed actions, the Court hereby GRANTS

United’s motion to dismiss on grounds of forum non

conveniens. The Court, however, explicitly conditions

District Court Order - 12/19/00

dismissal upon the following conditions:? (1) that United

consent to jurisdiction in Japan; (2) that United waive any

statute of limitations defense arising from the time interval

from the filing of any individual suit in this Court to a filing

of the parallel suit in Japan; (3) that United take no legal

position inconsistent with the position taken in this Court that

Article 29(1) is a statute of limitation; (4) that United take no

legal position inconsistent with the position taken in this Court

that United’s tariff filings (a) waive the limitation on liability

set forth in Article 22(1) of the Warsaw Convention as to any

claim for recoverable compensatory damages arising under

Article 17 and (b) waive any defense under Article 20(1) of

the Warsaw Convention as to that portion of such a claim

which does not exceed 100,000 Special Drawings Rights; (5)

that the Japanese courts actually assume subject matter

jurisdiction over the actions refiled in J apanese courts; and (6)

that United agree to satisfy any judgment against it by a

Japanese court. As to the first, second, third, fourth, and

sixth points, United shall file and serve a written undertaking

within twenty (20) days of the date of this Order indicating its

agreement to these terms as conditions of dismissal. On the

fifth point, the parties shall apprise the Court of any relevant

developments in the Japanese courts.‘

> Courts frequently predicate the grant of a forum non conveniens

motion on a defendant’s representations regarding jurisdiction,

amenability to process, enforceability of judgment, and waiver of

defenses that would have arisen directly from the delay in filing suit

in the wrong forum initially. See, e.g., Contact Lumber, 918 F.2d

at 1450; Cheng, 708 F.2d at 1409.

* The parties should note that an additional condition has been

added to the conditions that were provided for in the Court’s

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IT IS SO ORDERED.

Dated: 12/17/2000 /S/

MARTIN J. JENKINS

UNITED STATES

DISTRICT JUDGE

January 7, 2000 Order. Specifically, condition number 4 has been

added to account for United’s representations regarding the waivers

of limitation on liability that are found in its tariffs.

48a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 98-4075 MJJ and related cases: C 99-2210 MJJ, C

99-2905 MJJ, C 99-2906 MJJ, C 99-2907 MJJ, C 99-

2908 MJJ, C 99-2909 MJJ, C 99-2911 MJJ, C 99-2912

MJJ, C 99-2939 MJJ, C 99-3708 MJJ, C 99-3710 MJJ,

C 99-3712 MJJ, C 99-4210 MJJ

[Filed January 7, 2000]

KATAURA, et al.,

Plaintiffs,

UNITED AIRLINES and

UAL CORPORATION,

Defendants.

Nee Nee eee ee ee ee ee ee ee”

ORDER DISMISSING PLAINTIFFS’ ACTIONS FOR

FORUM NON CONVENIENS

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INTRODUCTION

Before the Court are the motions of defendants United

Air Lines and UAL, Inc. (collectively “United”) to dismiss

the above-captioned actions on forum non conveniens

grounds. For the reasons outlined below, the Court GRANTS

United’s motions to dismiss with certain, enumerated

conditions.

FACTUAL BACKGROUND

These related cases are brought by passengers on

United Air Lines Flight 826, which was scheduled to fly from

Tokyo, Japan to Honolulu, Hawaii on December 29, 1997.

Flight 826 encountered severe air turbulence over the Pacific

Ocean, approximately three hours into the flight. The

turbulence resulted in the death of one passenger,’ and

injuries to many others. Flight 826 then diverted course and

returned to Tokyo. Several of the injured passengers, and in

certain cases family members who were not passengers on the

flight, brought suit to recover Comnngee under the Warsaw

Convention, 49 U.S.C. § 40105 et seq.”

The Court granted United’s motion to dismiss

plaintiffs’ common law claims, finding that the Warsaw

' The survivors of the deceased passenger have also filed suit in

this Court, but that case, Kataura v. United Air Lines, Case No. C

98-4075 MJJ, has settled.

? The complaints are identical in their recitation of the operative

facts and requests for relief, differing only in the specific injuries

alleged by each individual plaintiff.

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Convention provides the exclusive remedy for damages for

injuries suffered attendant to international air travel. Now

before the Court is United’s motion to dismiss for forum non

conveniens. United seeks to move this litigation to Japan,

which it claims offers an adequate and more convenient

forum. In support of the present motion, United has filed

much of the Rule 26 information provided by each individual

plaintiff, and described the evidentiary methods of proof

likely necessary for each defendant’s damages case. United

claims that these disclosures, which are largely in the

Japanese language, first made it clear that this forum was

inappropriate, and that the litigation would more suitably be

undertaken in Japan.

LEGAL ANALYSIS

I. Forum Non Conveniens

A. Legal Standard

Unlike motions to transfer venue from one domestic

court to another, which are governed by statute, forum non

conveniens motions are resolved with resort to federal

common law. A forum non conveniens determination is

committed to the sound discretion of the trial court. Piper Air

v. Reyno, 454 U.S. 235, 257 (1981). A party moving to

dismiss for forum non conveniens must show two things: (1)

the existence of an adequate alternative forum, and (2) that

the balance of private and public factors favors dismissal.

Contact Lumber v. P. T, Moges, 9t8 F.2d 1446, 1449 (9th

Cir. 1990). Where the court considers all relevant public and

private interest factors, and where the balancing of those

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factors is reasonable, substantial deference is accorded.

Piper, 454 U.S. at 257.

The starting point of this inquiry is that plaintiffs are

ordinarily entitled to choose the forum in which to sue. Gulf

Oil v. Gilbert, 330 U.S. at 508. However, this presumption

is weaker where the plaintiffs are not U.S. citizens or

residents. Piper, 454 U.S. at 255-256 (“When the home

forum has been chosen, it is reasonable to assume that this

choice is convenient. When the plaintiff is foreign, however,

this assumption is much less reasonable. Because the central

purpose of any forum non conveniens inquiry is to ensure that

a trial is convenient, a foreign plaintiff's choice deserves less

deference”); see also Gemini Capital Group v. Yap Fishing

Corp., 150 F.3d 1088, 1091 (9th Cir. 1998). The

presumption should be upset only where factors clearly point

towards trial in the alternative forum. “If the balance of

conveniences suggest that trial in the chosen forum would be

unnecessarily burdensome for the defendant or the court,

dismissal is proper.” Piper, 454 U.S. at 256 n. 23.

Piper suggests a more even-handed evaluation than

that suggested by earlier precedent, which set oppressiveness,

vexatiousness, or extreme inconvenience to the defendant as

the standard for forum non conveniens dismissal. Koster v.

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

Inappropriateness of the forum due to the Court’s own

“administrative and legal problems” is also a factor to weigh.

Piper, 454 U. S. at 241, citing Koster, 330 U. S. at 524.

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B. Threshold Issues

5. Waiver by Inaction/Consent

Plaintiffs have questioned United’s very entitlement to

bring this motion, claiming that their delay in moving, as well

as their successful request for affirmative relief from this

Court (i.e. United’s intervening 12(b)(6) motion to dismiss

non-Warsaw Convention claims), operates as a waiver of

United’s right to bring a forum non conveniens motion.

Plaintiffs quote a Fifth Circuit case providing that forum non

conveniens motions must be made within a reasonable time of

the defendant’s recognition of the issue. /n re Air Crash

Disaster Near New Orleans, La. on July 9, 1982, 821 F.2d

1147, 1165 (Sth Cir. 1987) (defendant must assert a motion

to dismiss for forum non conveniens “within a reasonable

amount of time after the facts and circumstances which serve

as the basis for the motion have developed and become known

or reasonably knowable to the defendant”). United argues

that its motion would be timely even under plaintiffs’

suggested standard, in that the convenience of trying the case

in Japan was brought home only upon receipt of plaintiffs’

Rule 26 disclosures beginning in October 1999. This seems

to be a legally reasonable, if not entirely commonsensically

defensible, delay on this record.’

3 In contrast, United claims it was able to identify the pleading

deficiency attacked in its initial round of 12(b)(6) motions from a

reading of the complaints themselves. However, the issues

regarding inconvenient forum were allegedly not apparent from the

complaint alone.

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While waiver can be an issue in motions to transfer,

the issue has not directly arisen in the forum non conveniens

context. Therefore, absent this Court articulating a new

principle of procedural law in this context, and disregarding

United’s justification for its timing, the objection has no

foothold in law. The Court is not overjoyed with the prospect

of negating its existing investment of judicial resources in this

matter, but acknowledges that the Jn re Air Crash standard

does not bar United from bringing this motion.‘

B. Effect of Warsaw Convention on Plaintiff’s

Choice of Forum

Plaintiffs’ second threshold argument relies on the

language of the Warsaw Convention. Specifically Article

28(1) states: “An action for damages may be brought, at the

option 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,

* In re Air Crash instead suggests that the factor of timeliness

should be considered as one of the “practical concerns” among the

private interest factors in a Court’s analysis under Gulf Oil, infa.

821 F.2d at 1165, n.30. See also In re Air Crash Off Long Island

N.Y. on July 17, 1996, 65 F. Supp. 2d 207, 210-11 (S.D.N.Y.

1999). Thus, the Court notes that plaintiffs’ implicit premise in

defending United’s motion - i.e. , that timeliness is an extrinsic bar

to the applicability of the forum non conveniens factors outlined in

Gulf Oil - is suspect. Were the Court to consider timeliness in the

context of Gulf Oil, it would reach the conclusion that the delay in

bringing the instant motion, while perhaps avoidable in part, does

not inure against the private interests of the parties and the Court.

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or before the court of the place of destination.” Plaintiffs

read this language as a statutory fiat that the four fora

contemplated by the statute are convenient per se. There is

simply no case law support for this premise. In fact, several

cases (including those cited by plaintiffs for other purposes)

implicitly undermine the contention, since forum non

conveniens dismissals are confirmed in Warsaw Convention

cases despite the fact that the initial venue was at least

statutorily permissible. Lu v. Air China, 1992 WL 453646

(E.D.N.Y. 1992); Byrne v. Japan Air Lines, 1984 WL 1343

(S.D.N.Y. 1984). Most notably, the Fifth Circuit has

rejected the premise that the four competent fora under

Article 28(1) are per se convenient. “We are of the opinion

that article 28(1) offers an injured passenger or his

representative four forums in which a suit for damages may

be brought. The party initiating the action enjoys the

prerogative of choosing between these possible national

forums but that section is not inviolate. That choice is then

subject to the procedural requirements and devices that are

part of that forum's internal laws...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.” In re Air Crash, 821

F.2d at 1161-2. Accordingly, the Court does not find Article

5 Neither party addresses why the Northern District of California

meets the definition of any of the Article 28(1) fora. It would seem

not to fit the bill. Plaintiffs neither purchased their ticket in this

judicial district, nor were they scheduled to land here. United is a

Delaware company headquartered outside of Chicago, Illinois.

While this issue is beyond the purview of the current motions, it

raises further questions as to the appropriateness of this forum.

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28(1) to act as a procedural bar to this Court’s entertainment

of a motion to dismiss for forum non conveniens.

Existence of an Acceptable Alternative Forum

A. Available Forum

Ordinarily, the alternative forum is available where the

defendant is ‘amenable to process’ in the alternative

jurisdiction. Piper, 454 U.S. at 254 n.22. Defendant has

stated its amenability to process in Japan, and more is not

required. The Court will make this a condition of dismissal,

as several other courts have in granting dismissal for forum

non conveniens. See infra.

This is sufficient to satisfy the basic availability

requirement under the common law. Lockman, 930 F.2d at

768. With this in place, the Court must focus on adequacy,

if oniy to ensure that Japan is not so “clearly unsatisfactory”

a forum as to warrant denial of forum non conveniens

dismissal. Piper, 454 U.S. at 254-5.

B. Adequacy of Japan As Alternative Forum

The one other potential roadblock arises where the

alternative forum does not permit litigation of the subject

matter of the dispute, such that “the remedy provided by the

alternative forum is so clearly inadequate or unsatisfactory

that it is no remedy at all.” Piper, 454 U.S. at 254 n.22.

This is a high standard, and unfavorable differences in law or

procedure are not enough to meet it. See, e.g., Lockman, 930

F.2d at 768. In the Ninth Circuit, this standard has only

rarely been met. See Ceramic Corp. of America v. Inka

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Maritime Corp., 1 F.3d 947, 949 (9th Cir. 1993) (“rare

instance” where forum selection clause in contract effectively

forbidding titigation in Japan warranted denial of motion).

Plaintiffs attack the availability of an adequate remedy

in Japan on several levels.® They have submitted two

declarations from a Japanese attorney, Kiyoshi Kawashima,

Suggesting, based on his interpretation of the Warsaw

Convention language, that the Japanese courts would interpret

the two year deadline for filing a Warsaw Convention claim

(Article 29(1)) as a statute of repose, i.e. that the right to sue

extinguishes, and cannot be tolled beyond two years after the

predicate injury.’ Kawashima Decl., 3-5. Given that the

two-year anniversary of Flight 826 occurred on December 29,

1999, plaintiffs argue it is now temporally impossible to refile

° In so doing, they face a high burden. The Ninth Circuit in

Lockman catalogued cases in which the basic institutional soundness

of Japan’s legal system was confirmed, and found that no court of

appeals had reached a different conclusion. 930 F.2d at 769 n.3.

’ The English translation of the official (French) text of the

Convention differs from, but is consistent with, Kawashima’s

interpretation of the text in Japanese. “The right to damages shall

be extinguished if an action is not filed within two years...”

Warsaw Conv., Art. 29(1). Despite this language, American courts

have interpreted this language as equivalent to a statute of

limitations, allowing for tolling and waiver. Flanagan v,

McDonnell Douglas, 428 F. Supp. 770 (C.D. Cal. 1977); Joseph

v. Syrian Arab Airlines, 88 F.R.D. 530 (S.D.N.Y. 1980). This of

course has no ultimate relevance to the question presented here,

because the interpretation of Article 29(1) is a matter of local law.

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in Japan.* Second, Kawashima characterizes the Japanese

*legal system as intolerably slow, giving the example of a

personal injury suit arising out of the KAL 007 disaster in

1983, which took fully 12 years to reach judgment. The

declarant estimates a trial of the complexity entailed here will

entail a similar time frame. Third, Kawashima asserts that

hiring attorneys on contingency is not possible in the Japanese

legal system, and that the court system imposes high costs of

entry to plaintiffs that would keep them out of court in Japan.

Fourth, Kawashima cites to enumerated disadvantages of

Japanese discovery as a further reason Japan is an inadequate

forum for this dispute. Kawashima Decl., 14-16.

a. Article 29(1): Statute of Limitation or

Statute of Repose?

For its part, United disputes the accuracy of the statute of

limitations/statute of repose conclusion, and the relevance of

the other assertions plaintiffs make. | United rebuts

Kawashima’s conclusion that the Warsaw Convention’s

Japanese translation is a statute of repose in Japan with the

declaration of its competing expert Kenichiro Hayashida, who

provides the text of a Japanese aviation law treatise reading

8 Similarly, plaintiffs contended even several weeks before the

two-year anniversary had run that filing of a Japanese complaint

before December 29, 1999 was impracticable, due to the

evidentiary stringencies of Japanese civil procedures. For his part,

United’s expert Hayashida contends this is a false problem, because

nothing in Japanese procedural law prevents a plaintiff from

maintaining concurrent actions here and in Japan. Hayashida

Decl., 2. Counsel for United reiterated this point at oral argument.

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the two-year statute as one of limitation, capable of tolling

and waiver, and not of repose. Hayashida Decl., C.

The parties agree that the interpretation of Article

29(1) is a matter of first impression under Japanese law.

Each present a declarant attorney, and scholarly support, for

a predicted outcome were a Japanese court to confront the

question. With the issue joined, the Court is presented with

two options: (1) accept Kawashima’s best guess as to what a

Japanese court would do, and deny United's motion based on

that guess; or (2) rely on Hayashida’s interpretation dismiss

the action and allow a Japanese court will do if confronted

with the task of interpreting Article 29(1). Of the two,

Hayashida’s opinion is the more persuasive analysis to the

Court in assessing how a Japanese court might resolve the

issue of law presented. Moreover, from a pragmatic sense,

this result is the only means to avoid deciding, either

explicitly or by inference, a novel question of Japanese law in

this Court, which the Court is ill-equipped and ill-advised to

do. Thus, as the Court ultimately concludes infra that

dismissal is warranted on this record, dismissal contingent

upon the ultimate correctness of United’s reading of Article

29(1) as a statute of limitations, waivable and subject to

tolling, is the appropriate course.

b. Procedural Disadvantages of

Japanese Litigation

On the discovery question, plaintiffs have pointed to

no specific inadequacy in the discovery process that would

render effective litigation impossible. Unfavorable disparities

do not rise to the appropriate legal standard, which speaks to

the very possibility of obtaining relief in the foreign forum.

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Moreover, United’s expert attests that recent changes in

Japanese civil procedure have cured some of the deficiencies

complained of. Hayashida Decl., H.

As for the filing fees in Japanese courts (calculated as

a percentage of the damages sought), these have not been

found to constitute a barrier to the possibility of suit in the

alternative forum. Cheng v. Boeing, 708 F.2d 1406, 1410

(9th Cir. 1987). There is no basis for diverging from Cheng

here.

Cc. Attorney Fee Arrangements in Japan

As for the fee structure under which Japanese

attorneys apparently operate, these raise potentially substantial

difficulties for Japanese litigants. However, a majority of

courts have concluded that these types of financial concerns

should not be given weight in this context. See, e.g., Magnin

v. Teledyne, 91 F.3d 1424, 1430 (11th Cir. 1996). Given

that contingency fee arrangements are uncommon outside the

U. S., other courts have noted that giving their absence too

much weight would risk eviscerating the doctrine entirely in

contingency cases. Murray v. BBC, 81 F.3d 287, 292 (2d

Cir. 1996); Coakes v. Arabian American Oil Co., 831 F.2d

572, 575 (Sth Cir. 1987). In any event, Hayashida’s

declaration states that Japanese attorneys are amenable to

alternative fee structures in cases where plaintiffs have

financial hardship. Hayashida also contends that Japanese

court can grant legal aid to plaintiffs, and have done so in

prior air disaster cases. Hayashida Decl., 1.3. Moreover,

some of the plaintiffs in this action apparently already have

Japanese counsel. /d., 1.4. Thus, the Court does not find the

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retention of counsel in Japan, even if more problematic, to

constitute a bar to the accessibility of that forum.

d. Alleged Slow Justice In Japan

While other courts have found extreme cases of delay

to undermine the actual possibility of relief in the alternate

forum, see Bhatnagar v. Surrendar Overseas Litd., 52 F.3d

1220, 1227-28 (3d Cir. 1995) (denial of dismissal proper

where India had 25-year backlog on civil docket), no such

delay appears on this record. United’s expert opines that the

litigation in this case would be much less complicated than the

KAL 007 litigation. Hayashida Decl., G. Furthermore, he

has submitted a newspaper article indicating that the average

lifespan of a case in a Japanese court of first instance is 10

months. /d., G. 1-2.

e. Conclusion

The Court finds more persuasive the reasoning of

United’s expert Hayashida as to the availability of Japan: as a

forum. The only close issue presented on this record is the

interpretation of Article 29(1) of the Warsaw Convention

under Japanese law. The American substantive law of forum

non conveniens strongly suggests a course of action where, as

here, an unsettled issue of foreign law is the sole obstacle to

a finding of an adequate alternate forum: rather than operate

on an American court’s best guess as to what a Japanese court

might conclude on this issue, the Court and the parties can

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defer to a Japanese court to decide the question.’ This is, in

the interests of comity, the most preferable outcome.

Moreover, the ability of this Court to dismiss

conditionally means that plaintiffs do not thereby risk the

prospect of being kicked out of Court entirely as a matter of

Article 29(1) interpretation under Japanese law. If

Hayashida’s interpretation of the law, and the Court’s reliance

thereon, were ultimately deemed by a Japanese court to be in

error, these cases may be reopened for further proceedings.

Conditional dismissal thus allows the legal question to be

decided on its merits, with a minimum of what would amount

to procedurally dispositive guesswork on this Court’s part.

See In re Air Crash Off Long Island, N.Y., on July 17, 1996,

65 F. Supp. 2d at 215 (citing Schertenleib v. Traum, 589

F.2d 1156, 1163 (2d. Cir. 1978)).

Having found Japan to be an adequate alternate

forum, the Court must thus go on to evaluate the relative

conveniences of the two fora under the Gulf Oil factors.

D. Gulf Oil Private Interest Factors

Gulf Oil identifies at least five private factors for a

court to weigh in determining the applicability of forum non

% Ultimately, the Japanese court may net reach the question.

Article 29(1) is not specific as to forum; it is therefore possible that

a Japanese court will regard plaintiffs’ timely filing of Warsaw

Convention claims in an American court as effectively mooting the

issue. That determination will depend on Japanese law, as provided

by Article 29(2). This possibility further weighs in favor of

allowing the Japanese courts to determine their domestic law.

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conveniens. “Important considerations are the relative ease

of access to sources of proof: availability of compulsory

process for attendance of unwilling, and the cost of obtaining

attendance of willing, witnesses; possibility of view of

premises, if view would be appropriate to the action; and all

other practical problems that make trial of a case easy,

expeditious and inexpensive. There may also be questions as

to the enforceability of a judgment if one is obtained.” Gulf

Oil, 330 U.S. at 508. -

The parties have not briefed these factors in a line-

item fashion. Of these factors, the parties focus primarily on

the location of sources of proof. United claims that these are

damages cases at this point, indicating that all sources of

documentary evidence on this point - doctors’ reports,

witnesses as to diminished quality of life, and the like -

reside in Japan. United also draws the Court’s attention to

apparent resistance by plaintiffs to providing deposition

testimony in the U.S.; plaintiffs dispute this point.

Furthermore, as Piper demonstrates, dismissal for

forum non conveniens may be proper even where crucial

evidence is located in the U.S., where the totality of

considerations mandated by Gulf Oil so provides. Plaintiffs

counter, against their larger interest, that United’s predicate

liability is still very much at issue in these cases, and that the

majority of the liability witnesses and documents are here in

the U.S. Plaintiffs point out that, in other lawsuits filed by

Japanese passengers of Flight 826 in the Japanese courts,

United has disputed liability, arguing that the contributory

negligence of passengers relieved it from liability under the

Warsaw Convention. Steinle Decl., Exhs. A, B. However,

even assuming this to be true it is unclear who or what in the

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U.S. would give insight into the carrier’s predicate liability.

Plaintiffs’ counsel was unable to shed light on this at oral

argument, besides alleging that the Flight 826 flight crew

might have percipient testimony regarding passengers’ use of

seat belts. The problem with that assertion, made for the

first time at argument, is that the Court has not been

provided with any idea of where this flight crew is based -

ie., it may well be Japan. Other major potential sources of

evidence reside in Japan. Of those potential sources residing

in the U.S., some are not available as evidence in any event:

as United points out, the NTSB report of this incident cannot

be introduced at trial as a matter of federal statutory law. 49

U.S.C. § 1154(b).

As the incident occurred in airspace over the Pacific,

and at no time involved an event on American territory, even

liability questions (such as contributory negligence, or the

scope of the “accident” for Convention purposes) would

seem not to warrant use of this forum. If anything, expert

testimony might be sought from the U.S., and the

convenience of experts - like the convenience of lawyers -

is a factor accorded little to no weight under Gulf Oil.

Thus, plaintiffs have not given the Court any

particularized basis for finding either (1) that there is a

predicate liability case to be shown which would outweigh

damages proof, and (2) that the method of proving that case

is predominantly in the U.S.'°

10 The fact that Flight 826 took off from, and six hours later made

an emergency landing at, Tokyo’s Narita Airport undermines as a

matter of common sense plaintiffs’ assertion that unspecified

documents and witnesses are stateside. For example, the

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The other major issue joined by the briefs on private

interest factors is the language gap. Specifically, the lion’s

share of plaintiffs’ documentary and testimonial case-in-chief

is in Japanese. Exhibit C of the Grotch Declarations provide

the Rule 26 disclosures of each witness, and virtually all of

the documentation therein is in Japanese. This presents

significant questions of trial presentation, especially with a

multiplicity of plaintiffs, each with individual injuries,

individual treating physicians, and family members each

testifying - ostensibly in Japanese - regarding each plaintiff's

“damages. This language gap has been important to several

courts in granting forum non conveniens dismissal. Magnin

v. Teledyne, 91 F.3d 1424, 1429-30 (11th Cir. 1996)

(predominance of French-language witnesses weighed in

favor of dismissal); Lu v. Air China (predominance of

Chinese witnesses and Chinese-language documents). Trial

presentation, in the damages phase, thus will be lengthy and

particularized, and burdensome on a court and jury. On the

other factors, transportation of willing witnesses would be

costly, but exclusively for plaintiffs, which renders the

burden on defendant somewhat more tolerable. Any

unwilling witnesses, however, would escape the reach of this

Court. Overall, the balance of private interest factors central

to the Court’s inquiry under Gulf Oil and Piper, the latter

complaints’ allegation that flight navigation should have revealed

the likelihood of severe turbulence would seem to implicate flight

plans, weather reports, and the like Originating in Tokyo.

Similarly, United’s role, if any, in the allegedly negligent provision

of emergency services at Tokyo does not impact this forum. Thus,

even accepting plaintiffs’ premise that a liability case remains, it is

unclear what the connection to this forum would be.

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requiring consideration of the logistical burden on this Court,

Clearly weigh in favor of Japan as the forum for this suit.

E. Gulf Oil Public Interest Factors

Gulf Oil provides the following recitation of the

public factors impacting a court’s forum non conveniens

analysis. “Administrative difficulties follow for courts when

litigation is piled up in congested 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

relation to the litigation. In cases which touch many persons,

there is reason for holding the trial in their view and reach

rather than in remote parts of the country where they can

learn of it by report only.... There is an appropriateness, too,

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

home with the state law that must govern the case, rather

than having a court in some other forum untangle problems

in conflict of laws, and in laws foreign to itself.” 330 U.S.

at 509.

On public factors, United focuses generally on the

congested dockets of this Court, the attenuated connection of

this jury venire to the well-being of Japanese citizens, and

the possible entanglements with Japanese law. Plaintiffs

counter that international air travel is a topic of general

public concern, and that United’s dominant presence in the

West Coast market provides a substantial impact on the

public interest. Neither side moves much beyond the generic

on these factors, although the attenuated nexus to this forum

weighs against burdening a jury, particularly where, as here,

the trial promises to be lengthy and at least linguistically

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problematic. See Pain v. United Technology Corp., 637

F.2d 775, 792 (D.C. Cir. 1980).

The last issue is the choice of law, and potential

conflicts of law to be considered by this Court in resolving

the matter. The United tariff that the substantive law of the

passenger’s permanent residence governs damages. Grotch

Decl., Exh. D. Thus, Japanese law will govern all of

plaintiffs’ claims, whether here or in Japan. In sum, on the

public factors, United has not made a particularly strong

showing, although the strength of showing on the Gulf Oil

private interest factors overshadow (and in several ways,

including the logistical nightmare that an American jury trial

of some length conducted substantially in Japanese would

present, spill over into) this element.

F. Conditional Dismissal

Courts have frequently predicated the grant of a forum

non conveniens motion on the defendants’ representations

regarding jurisdiction, amenability to process, enforceability

of judgment, and waiver of defenses that would have arisen

directly from the delay in filing suit in the wrong forum

initially. Contact Lumber, 918 F.2d at 1450; Cheng v.

Boeing Corp., 708 F.2d 1406, 1409 (9th Cir. 1983);

Ionescu, 465 F. Supp. 139, 147-8 (S.D.N.Y. 1979). United

has indicated its willingness to receive process in Japan, not

to contest personal jurisdiction, and to waive any defense

arising from the time gap between filing here and filing in

Japax. Mot. at 1. As United itself indicates, these

concessions are commonly made by defendants in seeking

forum non conveniens dismissal.

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Thus, the Court explicitly conditions its dismissal

upon the following conditions: (1) that United consent to

jurisdiction in Japan; (2) that United waive any statute of

limitations defense arising from the time interval from the

filing of any individual suit in this court to a filing of the

parallel suit in Japan; (3) that United take no legal position

inconsistent with the position taken in this Court that Article

29(1) is a statute of limitation; (4) that the Japanese courts

actually assume subject matter jurisdiction over the actions

refiled in Japanese courts; and (5) that United agree to satisfy

any judgment against it by a Japanese court. As to the first,

second, third and fifth points, United shall file and serve a

written undertaking within twenty (20) days of the date of

this order indicating its agreement to these terms as

conditions of dismissal. On the fourth point, the parties shall

apprise the Court of any relevant developments in the

Japanese courts.

CONCLUSION

There are convenience factors strongly weighing in

favor of dismissal for the purpose of litigating these cases in

Japan. Plaintiffs’ rebuttal that the bulk of liability witnesses

and documents are located in the United States is

unsupported by a showing that would permit the Court to

agree with this claim. Furthermore, trial of damage issues

in this Court would be severely burdensome and

inconvenient. The interpretation of Article 29(1) of the

Warsaw Convention under Japanese law is novel, but this

does not constitute a bar to dismissal. In conditionally

dismissing this action, the Court has undertaken the most

pragmatic approach appropriate under the law of this forum

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to ensure that the parties achieve substantial justice without

undue burden to any party or legal system.

United’s motions to dismiss for forum non conveniens

are GRANTED."

IT IS SO ORDERED.

Dated: -1/7/2000 /S/

MARTIN J. JENKINS

UNITED STATES

DISTRICT JUDGE

'' The Court recognizes that not all of the Flight 826 cases

currently pending in this Court were noticed for these motions, as

new suits related to the same predicate events have been filed

during the pendency of this motion. The Court encourages the

parties to cooperate by stipulating to dismiss all like actions pending

before this Court as if explicitly noticed in these motions, and for

United to include those cases and plaintiffs in its undertaking

regarding defenses and satisfaction of judgment in Japan.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.