Petition for Writ of Certiorari — Bapte v. West Caribbean Airways
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Supresne Court US.
_——————— 991199 MAR 30 2010
Jn The OFFICE OF THE CLERK
Supreme Court of the United States
+
SYLVIA BAPTE, et al.,
Petitioners,
VS.
WEST CARIBBEAN AIRWAYS, NEWVAC
CORPORATION, GO 2 GALAXY, INC., JACQUES
CIMETIER, and ASEGURADORA COLSEGUROS,
Respondents.
Se ee
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
$——— —— ————— —— ——____
PETITION FOR WRIT OF CERTIORARI
¢
JORGE A. DUARTE*
ANDREW T. TRAILOR
JORGE A. DUARTE, P.A.
5975 Sunset Drive, Suite 601
Miami, Florida 33143
(305) 358-2400
jorgeaduartepa@hotmail.com
Attorneys for Petitioners
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
The 1999 Montreal Convention is an interna-
tional treaty that has been ratified by the United
States. It amended important provisions of the War-
saw Convention concerning compensation for the
victims of air disasters while maintaining the core
provisions which have successfully served the inter-
national air transport community for several decades
(i.e. the “Warsaw System”). The Montreal Convention
modernized a number of key areas. The inclusion of
the procedural device of forum non conveniens was
not one of the modernizations adopted by the member
states at the 1999 Montreal Convention when it was
specifically rejected. The jurisdictional provisions of
the Montreal Convention allow Plaintiffs to select
where to file their actions. Petitioners in the instant
are French citizens of Martinique who brought suit
against Respondent Newvac in a District Court in
Florida (where Newvac’s home offices are located)
following an air disaster. To avoid an Amcrican jury,
Respondent Newvac moved to dismiss the case to
Martinique on forum non conveniens grounds and
offered to confess to lability and pay reduced dam-
ages in Martinique under French law if a forum non
conveniens dismissal was granted. Over objection, the
District Court accepted Newvac’s confession of lia-
bility and then performed an incomplete forum non
conveniens analysis only as to the remaining damage
issues in the case which resulted in the dismissal of
the action to Martinique. The questions presented
here are:
1]
QUESTIONS PRESENTED -— Continued
1. Did the District Court err in applying forum non
conveniens to the Montreal Convention claims brought
by Petitioners when Petitioners are given the express
right to select jurisdiction under the treaty?
2. Did the District Court err in allowing Newvac to
confess to liability only to then apply a forum non
conventens venue analysis, limited only to damage
claims, which resulted in dismissal to Martinique?
LIST OF PARTIES
Petitioners:
Petitioners are the representatives of 102 of the
152 passengers who perished in the crash of Flight
708 on August 16, 2005. Each Petitioner is a natural
person and resident of the Republic of France, De-
partment of Martinique. The List of Parties are con-
tained in a separate letter filed with the Court.
iV
TABLE OF CONTENTS
Page
QUESTIONS PRESEN TEED o..cccsscscevcccsccccsrscsssenes i
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BASIS FOR JURISDICTION IN THIS COURT... 1
TREATIES AND STATUTES INVOLVED .......... 2
STATEMENT OF THE CASE..............cccccccccescscee: 3
ARGUMENT FOR GRANTING THE WRIT ....... 6
I. This Court should grant certiorari to re-
solve not only conflict with decisions be-
tween the Districts but also conflict with
prior decisions of the United States Su-
MI I visas ddd eke eared ena 6
A. The Eleventh Circuit’s application of
the forum non conveniens doctrine to
dismiss claims brought under the
Montreal Convention when the treaty
specifically requires that an action
for damages ‘must be brought, at the
option of the plaintiff, in the territory
of one of the States Parties’ is in con-
flict with the Ninth Circuit Decision
in Hosaka v. United Airlines, 305 F.3d
ER CEES SIU, isi cvsckc ccs dsscescscsarrecen 6
V
TABLE OF CONTENTS — Continued
Page
B. The Eleventh Circuit failed to follow
Sinochem Int’l Co. Ltd. v. Malaysia
Int'l Shipping Corp., 549 U.S. 422
(2007) and Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 585 (1999)
when it accepted a domestic Defen-
dant’s confession of liability provided
it was dismissed on forum non con-
ventens grounds which resulted in
dismissal to a foreign tribunal for
only a damage determination.............. 11
APPENDIX
Opinion of the United States Court of Appeals
for the Eleventh Circuit Denying Petitioner’s
Appeal in the matter of Sylvia Bapte, et al. v.
West Caribbean Airways, et al., United
States Court of Appeals for the Eleventh
Circuit Court Case No. 07-15830 ..... eyeeavaeatae App. l
Order of Clarification of Order of Dismissal for
Forum Non Conveniens in the matter of In
Re: West Caribbean Airways, 8.A., United
States District Court Southern District of
Florida Case No. 06-22748-UNGARO........... App. 21
Order of Dismissal for Forum Non Conveniens
in the in the matter of In Re: West Caribbean
Airways, S.A., United States District Court
Southern District of Florida Case No. 06-
Be aa svi bac casvwansasacasindinisesevsenicnasis App. 88
TABLE OF CONTENTS —- Continued
Page
Preliminary Order on Defendants’ Motion to
Dismiss on Grounds of Forum Non Con-
veniens in the matter of In Re: West Carib-
bean Airways, S.A., United States District
Court Southern District of Florida Case No.
06-22748-UNGARO
Order Denying Motion for Rehearing and Re-
hearing En Banc In the matter of Sylvia
Bapte, et al. v. West Caribbean Airways, et al.,
United States Court of Appeals for the Elev-
enth Circuit Court Case No. 07-15830 App.
TABLE OF AUTHORITIES
CASES
Baah v. Virgin Atlantic Airways,
F.Supp.2d 591 (S.D.N-Y. 2007)
Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008)
First Natl Bank of Arizona v. Cities Service
Co., 391 U.S. 253, 88 S.Ct. 1575 (1968) .......... uaasien
Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839,
91 L.Ed. 1055 (1947)
Hosaka v. United Airlines, 305 F.3d 989 (9th
RN ENN a csh dail vrebeccbedininceroracetecss isotuaicasan canoe: passim
La Seguridad v. Transytur Line, 707 F.2d 1304
(11th Cir. 1983)
Manley v. Engram, 755 F.2d 1463 (11th Cir.
SNE Sasucs phkunns Gasudantadkducissid onteiardassaneetiakasebneaekes Ropes 13
Milor v. British Airways, Plc. [1996] Q.B. 702
pL SB) PO Iiie corer Pir eee nen Ties der ear a ee on aR 8
Pierre-Louis v. Newvac Corp., 584 F.3d 1052
SEE vs euntccbcavasnass faa thuus cbdueceecumces tate euee on ar appearen =
Pure Oil Co. v. Suarez, 384 U.S. 202, 86 S.Ct.
RRR RR ap ren oreo ep SN eh rd An ean 2
Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 119 S.Ct. 15638, 143 L.Ed.2d 760
I as ceoaaxeuseunc twas aetececasiosnteldedcuun 1, 11, 13, 14, 15
Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping
Corp., 549 U.S. 422, 127 S.Ct. 1184 (2007) .....passim
Vill
TABLE OF AUTHORITIES — Continued
Page
Sumitomo Shoji America, Inc. v. Avagliano,
et ee ayy oc cua sanecscneneuwschnkcoscudhoksaceces 10
U.S. v. Giordano, 94 S.Ct. 1820 (1974) .....c.ccccccccccccccses 2
CF. O. Crees, BS BAA. DGD CRI 1 eae ccescccccccsccscscnsecscccee
STATUTES
a nec css ukvet ucnins bakakswtwasasieussunenes l
OTHER
The Convention For The Verification Of Cer-
tain Rules Relating To International Car-
riage By Air (the “1929 Warsaw Convention”),
PUIG Be 0) UN Be ion ks cccnccvcceccisevervcccocsccscssecess. 3, 7
The Convention For The Unification Of Certain
Rules For International Carriage By Air (the
“1999 Montreal Convention”), Articles 33-1
Shy [nee Nae a ah Pe eee ee ree OEE 2, 7,8, 10
The Senate Foreign Relations Committee’s Re-
EG et ae SOROS ivan ca sxtshetcstncrnccdscessbcieacacszuhubrotboes 9,10
PETITION FORA WRIT OF CERTIORARI
Petitioners respectfully pray that a Writ of Certi
orari issue to review the decision of the United States
Court of Appeals for the Eleventh Circuit.
i
OPINION BELOW
The decision below is reported at Picrre-Louts v.
Newvac Corp., 584 F.3d 1052 (2009), reh’g denied, and
is reprinted in the appendix at App. 1.
e
BASIS FOR JURISDICTION IN THIS COURT
Petitioners invoke certiorari jurisdiction pursu-
ant to 28 U.S.C. § 1254(1).
The Eleventh Circuit Court of Appeals entered its
opinion on October 8, 2009, and then denied rehear-
ing on December 30, 2009. This petition is timely filed
within 90 days of December 30, 2009.
The Eleventh Circuit Court of Appeals’ decision
conflicts with Hosaka v. United Airlines, 305 F.3d 989
(9th Cir. 2002) as it pertains to application of the
doctrine of forum non convenitens to claims hrought
under the Montreal Convention. There is also con-
flict with Sinochem Intl Co. Ltd. v. Malaysia Int'l
Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184 (2007)
and Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) as it
pertains to when forum non conveniens can be applied
during a lawsuit. Certiorari jurisdiction exists to de-
termine whether the Eleventh Circuit Court of Ap
peal’s decision departed from the foregoing. Pure Oil
Co. v. Suarez, 384 U.S. 202, 86 S.Ct. 1894 (1966); and
First Natl Bank of Arizona v. Cities Service Co., 391
U.S. 253, 88 S.Ct. 1575 (1968) (conflict with a deci-
sion of United States Supreme Court) and U/.S. 1
Giordano, 94 8.Ct. 1820 (1974) and U.S. v. Chavez, 94
S.Ct. 1849 (1974) (conflict between circuits).
TREATIES AND STATUTES INVOLVED
The Convention For The Unification Of Certain
Rules For International Carriage By Air (the “1999
Montreal Convention”):
Article 33 — Jurisdiction
l. 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.
k
4. Questions of procedure shall be
governed by the law of the court seised of the
Case.
The Convention For The Verification Of Certain
Rules Relating To International Carriage By Air (the
“1929 Warsaw Convention”):
Article 28
(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 having
jurisdiction where the carrier is ordinarily
resident, or has his principal place of busi-
ness, or has an establishment by which the
contract has been made or before the court
having jurisdiction at the place of desti-
nation.
(2) Questions of procedure shall be gov-
erned by the law of the court seised of the
Case
STATEMENT OF THE CASE
Respondent Newvac is a Florida corporation
whose offices are located in Dania Beach, Florida.
Petitioners maintain in this appeal and below that
Newvac is a “clandestine airline,” which is a label
given Lo unauthorized U.S. entities that compete with
legitimate U.S. air carriers by chartering cheaper
foreign aircraft with less stringent safety standards.
Below, discovery revealed that Newvac, while licensed
only as a tour guide, was the de facto operator of a
Colombian airline, West Caribbean Airline (“WCA”),
and that Newvac provided to WCA administrative
support, personnel, landing fees, fuel, airline control
fees, baggage handling fees, pilot training, set routes,
set schedules, and provided spare parts -- all while
avoiding FAA licensing and safety regulations — and
doing so from within Newvac’s offices in South
Florida.
On August 16, 2005, and under charter to
Newvac, WCA Flight 708 crashed in Venezuela while
carrying 152 passengers and an 8-member crew
aboard an overworked MD-80 aircraft which had been
cobbled together with a sundry of spare parts. All
aboard perished. These consolidated actions ensued
in the District Court for the Southern District of
Florida pursuant to the 1999 Montreal Convention.
Petitioners alleged that the American corporation
Newvac was essentially operating the Colombian
airline WCA and was therefore legally responsible for
the crash as the “contracting carrier” under the Mon-
treal Convention. Newvac initially denied liability.
When discovery began to reveal otherwise, and when
the chance of facing a jury increased, Florida based
Newvace filed an Affidavit attesting that the French
Court in Martinique was not only available and ade-
quate, but that Newvac would concede liability and
waive damage limits if the District Court dismissed the
‘ase on forum non conveniens grounds to Martinique
where reduced damages would be awarded under
French law. Petitioners never so agreed. Five days
later, the District Court entered a preliminary Order
determining that Newvac was indeed a “contracting
carrier” under the Montreal Convention, rendering it
D
lable for Petitioners’ damages. The District Court,
also ruled that the doctrine of forum non conveniens
did apply to Petitioner’s claims brought under the
Montreal Convention. On that same date, Newvac
filed a Renewed Motion to Dismiss on forum non
conveniens grounds, offering to consent to hability
and waiving the damage limits, provided the Court
dismiss the action on forum non conveniens grounds
to Martinique for resolution of the remaining damage
issues under French law.
The District Court applied forum non conveniens
to the Petitioners’ Montreal Convention claims, ac-
cepted Wewvae’s adiuissivlm of Liability and then
performed an improper forum non conveniens analy-
sis only as to the remaining damage issues. In so
doing, the District Court never considered any of
Newvac’s liability factors which occurred in Florida,
where it was incorporated and maintained its home
offices, and which surely would have resulted in the
action remaining in the District Court. As a result,
the liability portion of the case was determined by the
District Court and the remaining ‘damage’ case was
dismissed on December 7, 2007 to Martinique on
forum non conveniens grounds for a determination of
damages in a French Court. Meanwhile, the Peti-
tioners steadfastly argued that the application of
forum non conventens and the forum non conveniens
analysis which failed to include all public and private
factors was flawed. The Eleventh Circuit Court of
Appeals affirmed the application of the doctrine of
forum non conveniens to the Petitioners’ Montreal
Convention claims and the forum non conveniens
6
dismissal on October 8, 2009; a rehearing was denied
on December 30, 2009.
a ¢
ARGUMENT FOR GRANTING THE WRIT
I. This Court should grant certiorari to re-
solve not only conflict with decisions be-
tween the Districts but also conflict with
prior decisions of the United States Su-
preme Court.
A. The Eleventh Circuit’s application of the
forum non conveniens doctrine to dis-
miss claims brought under the Montreal
Convention when the treaty specifically
requires that an action for damages
‘must be brought, at the option of the
plaintiff, in the territory of one of the
States Parties’ is in conflict with the
Ninth Circuit Decision in Hosaka uv.
United Airlines, 305 F.3d 989 (9th Cir.
2002).
The Eleventh Circuit Court of Appeal’s decision is
contrary to the Ninth Circuit Court of Appeal’s deci-
sion in Hosaka v. United Airlines, 305 F.3d 989 (9th
Cir. 2002) regarding the application of the doctrine
of forum non conveniens to actions brought pursuant
to the “Warsaw System.” In the instant case, the
' See the Introduction to the Minutes of the International
Conference on Air Law — Convention for the Unification of Certain
Air Rules for International Carriage by Air (the 1999 Montreal
(Continued on following page)
actions were brought under the Montreal Convention
versus the Warsaw Convention provisions interpreted
in Hosaka. But, as addressed herein, the Montreal
Convention is merely the successor to the Warsaw
Convention, the current evolution of the “Warsaw
System” that has been in place for over 80 years, and
little difference exists between the two nearly iden-
tical jurisdictional provisions.
Article 33-1 and 33-4 of the Montreal Convention’
provides:
1. An action for damages must be brought,
at the option of the plaintiff, in the ter-
ritory of one of the States Parties, either
before the court of the domicile of the
carrier or of its principal place of busi-
ness, or where it has a place of business
Convention) page 1] describing the purpose of convening the
convention; for the “Modernization and Consolidation of the
‘Warsaw System.’”
* Article 33-1 and 33-4 of the Montreal Convention are
almost identical to Article 28-1 and 28-2 of the Warsaw Conven-
tion. Compare Article 28:
(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 hav-
ing jurisdiction where the carrier is ordinarily resi-
dent, or has his principal place of business, er has an
establishment by which the contract has been made or
before the court having jurisdiction at the place of
destination.
(2) Questions of procedure shall be governed by the
law of the court seised of the case.
8
through which the contract has been
made or before the court at the place of
destination.
she < te
4. Questions of procedure shall be governed
by the law of the court seised of the case.
Points of contention arise when the doctrine of
forum non conveniens is applied as a procedural rule
of the Court seised of the case to defeat the express
right of a plaintiff under Article 33-1 of the Montreal
Convention to select where to bring suit.
In reaching its conflicting ruling, the Eleventh
Circuit Court disregarded Hosaka, the only United
States Appellate decision to have interpreted the al-
most identical language as contained in the prede-
cessor Warsaw Convention. After extensive analysis
in its opinion, the Hosaka Court concluded that the
Warsaw Convention did not permit application of
forum non conveniens.’ In an effort to distance itself
from the Hosaka precedent and to find a method by
which to apply forum non conveniens, the Eleventh
Circuit declared the Montreal Convention to be a new
and different treaty from the Warsaw Convention.
The Eleventh Circuit also made clear note that the
Warsaw Convention was drafted in 1929 implying
* See also Milor v. British Atrways, Pic. [1996] Q.B. 702
(Eng. C.A.), a decision by a treaty sister state, wherein the Brit-
ish Court of Appeals also rejected application of forum non
conveniens to a Warsaw Convention claim.
9
that its provisions were dated and that the I/osaka
decision was ruling on the Warsaw Convention. What
the Eleventh Circuit glossed over was that the
Hosaka decision interprets the same language from
the Warsaw Convention as is currently at issue and
that the Hosaka decision was rendered in 2002,
making it considerably more contemporary.
Perhaps more important to the instant case and
to the value of Hosaka, as conflict precedent, is that
although the 1999 Montreal Convention was called to
modernize and make changes to some portions of the
Warsaw Convention (mainly having to do with com-
pensation to victims of air disasters), the negotiators
for the various contracting states (including the
United States) when negotiating the Montreal Con-
vention intended to preserve the language and sub-
stance of the Warsaw Convention in order to preserve
the large body of judicial rulings and precedent (such
as Hosaka) that had been previously rendered by its
member states under the Warsaw Convention.
Such consistent interpretation is what the Senate
Foreign Relations Committee expressed when it sub-
mitted the 1999 Montreal Convention to the full
Senate:
In the nearly seventy years that the Warsaw
Convention has been in effect, a large body of
judicial precedent has been established in
the United States. The negotiators of the
Montreal Convention intended to preserve
these precedents. According to the Executive
Branch testimony, “[wJhile the Montreal
10
Convention provides essential improvements
upon the Warsaw Convention and its related
protocols, efforts were made in the negoti-
ations and drafting to retain existing lan-
guage and substance of other provisions to
preserve judicial precedent relating to other
aspects of the Warsaw Convention, in order
to avoid unnecessary litigation over issues
already decided by the courts under the
Warsaw Convention and its related proto-
cols.” S. Exec. Rep. 108-8, at 3 (2003). Baah
v. Virgin Atlantic Airways, Ltd., 473 F.Supp.2d
591, 596 (S.D.N-Y. 2007).
Accordingly, the fact that Hosaka interprets the
Warsaw Convention’s Article 28 on jurisdiction versus
the Montreal Convention’s Article 33 on jurisdiction is
of limited relevance. The pertinent provisions of both
conventions were retained and the language as to
jurisdiction remain nearly indistinguishable in both
Conventions maintaining consistency. Further, when
there were attempts to include forum non conveniens
language into the Montreal Convention, those at-
tempts were voted down. Even the District Court
acknowledged in its Preliminary Forum Non Con-
veniens Order, “l|aJjlthough not conclusive, the mean-
ing attributed to treaty provisions by the Government
agencies charged with their negotiation and enforce-
ment is entitled to great weight,” citing to Sumitomo
Shojt America, Inc. v. Avagliano, 457 U.S. 176, 184-85
(1982).
11
The Senate Foreign Relations Committee’s report
on the Montreal Convention to the Senate contradicts
the Eleventh Circuit’s suggestion that because the
treaty is different, prior rulings such as Hosaka are
distinguishable. To the contrary, it appears that por-
tions were purposefully left untouched so that the
precedential value of decisions such as Hosaka, al-
though made under the Warsaw Convention, would
be preserved for interpreting the jurisdictional provi-
sions contained in the Montreal Convention and to
avoid the unnecessary relitigation of issues already de-
cided. Hosaka is still good law. Accordingly, the deci-
sion of the Eleventh Circuit Court of Appeals in this
matter conflicts with the Ninth Circuit Court of Ap-
peals decision in Hosaka. Relief to the passengers of
WCA Flight 708 based on conflict with Hosaka is in
order.
B. The Eleventh Circuit failed to follow
Sinochem Int’l Co. Ltd. v. Malaysia Int'l
Shipping Corp., 549 U.S. 422 (2007) and
Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 585 (1999) when it accepted a
domestic Defendant’s confession of liabil-
ity provided it was dismissed on forum
non conventens grounds which resulted
in dismissal to a foreign tribunal for
only a damage determination.
The Eleventh Circuit Court of Appeal’s decision is
contrary to Sinochem and Ruhrgas regarding the
application of a forum non conveniens analysis after
the District Court had already resolved Newvac’s
12
liability issues. Further, the forum non conveniens
analysis performed by the District Court at that junc-
ture was performed only as to the remaining damage
issues, rendering same incomplete and defective. A
court that fails to balance all relevant forum non
conventens factors abuses its discretion. La Seguridad
v. Transytur Line, 707 F.2d 1304 (llth Cir. 1983)
(ciling Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839,
91 L.Ed. 1055 (1947). The forum non conveniens anal-
ysis by the District Court was performed too late in
the litigation since all merits issues save for damages
had already been resolved. Forum non conveniens is a
threshold venue issue, and is to be applied before a
court exercises its jurisdiction or significantly ad-
dresses the merits of an action.
A forum non convenitens analysis should be per-
formed without addressing the merits of a lawsuit,
since “Resolving a forum non conventens motion does
not entail any assumption by the court of the sub-
stantive law-declaring power.” Sinochem, 549 U.S. at
424: citing Ruhrgas AG v. Marathon Oil, 526 U.S.
574, 584 (1999) (forum non conveniens is a threshold
ground for “denying audience to a case on the mer-
its”); accord Bryant v. Rich, 530 F.3d 13868, 1376 (11th
Cir. 2008) (“it is proper for a judge to consider facts
outside of the pleadings and to resolve factual dis-
putes so long as the factual disputes do not decide the
merits and the parties have sufficient opportunity to
develop a record.”) (fn. omitted).
In the instant case, it was only after it became
evident that the District Court would find Newvac to
13
be a “contracting carrier” that Newvac gamed the
court by stipulating to liability, attempting to whittle
down the forum non conveniens factors to damages, to
avoid trial in South Florida so that it would allow an
escape to Martinique to face nominal damages. In so
doing, Newvac invoked the “Law Declaring” judicial
power and the exercise of the District Court’s
jurisdiction with its confession of lability. At that
instant, all matters up to and through liability and
causation were decided in their entirety, leaving only
the assessment of damages. To then perform a forum
non conventens analysis at that late juncture only on
the remaining damage isSues was improper and con
stituted error under Sinochem and Ruhrgas, supra.
Looking at the inverse, all that was sent to the Judge
in Martinique was a case to determine damages,
albeit under French law. In order to get to that point,
the District Court exercised its jurisdiction and re-
solved all of the merits issues in the action except for
damages. It could not thereafter “bifurcate” or apply a
“damages only forum non conveniens” analysis which
is a preliminary threshold venue challenge.
A party can waive venue by clear, overt acts
evidencing an intent to waive, or impliedly, by taking
some action inconsistent with an intent to pursue a
venue challenge motion, and generally, these actions
invoke the judicial power and jurisdiction of the
courts. Manley v. Engram, 755 F.2d 1463, 1468 (11th
Cir. 1985). Newvac’s act of stipulating to liability was
not only the equivalent of admitting to all liability
14
allegations in the Petitioners’ Complaint [venue alle-
gations included] but it also invoked the District
Court’s jurisdiction which was inconsistent with and
waived any subsequent right to a venue challenge
(“forum non conveniens is a Supervening venue pro-
vision”).
As to the evaluation of forum non conveniens
factors addressed by the District Court, once having
done the limited forum non conventens analysis, one
cannot dispute that the factors analyzed were less
than would have been taken into consideration had
all hability and damage issues been addressed. By
that measure alone, the forum non conveniens analy-
sis was flawed as less than all of the relevant public
and private interest factors were considered.
The District Court clearly erred three times; first,
it disregarded Sinochem and Ruhrgas by exercising
its jurisdiction over the merits of the case to the point
that only the damages issues remained and there-
after performing the forum non conveniens analysis
on damage issues only; second, it allowed Newvac to
stipulate to liability, invoke the District Court’s juris-
diction, and then seek a forum non conveniens venue
analysis when the stipulation effectively waived
venue challenges; and third, when it failed to con-
sider all of the relevant liability factors as part of its
forum non conventens analysis.
Accordingly, relief to the passengers of WCA
Flight 708 is in order as the Eleventh Circuit’s deci
sion is in conflict with Sirochem and [Ruhrgas.
+
CONCLUSION
The Eleventh Circuit’s decision has raised not
only conflict between the Districts but also conflict
with prior decisions of the United States Supreme
Court. Air travelers are now left uncertain as to
me |
t r aan . ” ”
Appis A wv. *¥ , P » , A
f
Iu Ww AA ae
States District Court pursuant to the Montreal Con-
vention and if so, the nature and extent of the
application of the doctrine of forum non conventens
This Court should grant the Petition and resolve the
conflict between the Districts and between the Elev-
enth Circuit’s decision and this Court, providing
uniformity for the international carriage by air, the
very foundation of the Warsaw System
Respectfully submitted,
JORGE DUARTE
ANDREW ‘I’. ‘TRAILOR
JORGE A. DUARTE, P.A.
5975 Sunset Drive, Suite 601
Miami, Florida 33143
(305) 358-2400
Attorney for Petitioners
Dated: March 30, 2010
App. 1
|PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 07-15828
D. C. Docket No. 07-61165-CV-UU
ANNICK JOELLE PIERRE-LOUIS, ANTOINE
VINCENT GUYARD, THIBAUD GUYARD,
a minor, by his father Antoine Vincent Guyard,
individually as heirs of Abdon Joesph [sic] Pierre
Louis, deceased and individually as heirs of Lawrence
Pierre-Louis, deceased, LEON NOEL EDMOND
LORNE, MELANIE SUZIE MARTINE, a minor,
by her mother Marie-Nelly Martie individually as
heirs of Serge Nal, deceased,
Plaintiffs-Appellants,
versus
NEWVAC CORPORATION, a Florida corporation,
GO 2 GALAXY, INC., a Florida corporation,
WEST CARIBBEAN AIRWAYS, 8.A.,
a Columbian corporation,
Defendants-Appellees.
App. 2
No. 07-15830
D. C. Docket No. 06-61813-CV-UU
SYLVIA BAPTE, Individually and as
personal representative of the Estates of
CHRISTIANE BAPTE, deceased, and
SYLVAIN BAPTE, deceased,
STEPHANIE ISABELLE BAPTE,
AUBIN CASIMIR, MARYVONNE BAPTE, et. al.,
Plaintiffs-Appellants,
versus
NEWVAC CORPORATION, a Florida corp.,
GO 2 GALAXY, INC., a Florida corp.,
WEST CARIBBEAN AIRWAYS, S.A.,
a Columbiay Corp
Defendants-Appellees
No. 07-15902
I) C. Docket No. 06-22748-CV-UU
HENRI GALBERIT, as personal representative
of the Estate of Nicolas Massal, Deceased, et al..
Plaintiffs,
NICOLAS MASSAL, MURIELLE MASSAL,
MAEVA MASSAL, JOSEPH GALBERT,
MARIE GALBERT, JOACHIM-ARNAUD,
PAU, BERISSON, GEORGES BERISSON,
RAPHOSE, MARIE LUCE, JOSEPH BONIFACE,
App. 3
SCAGLIONT, LANOIR, MONTLOUIS FELICTE,
ALEX PETERS, BERTON, RAPHAELLE COUFFE,
ROBERT COUFFE, MARIE PETERS, VIOLTON,
SOHAN VENTAKAPEN, MICHEL VENTAKAPEN,
EUDARIC, BERTIN MARIE-LUCE, CHARLES
CABRERA, ROSAMOND, CATHERINE
CABRERA, DENIS RAMIN, LAURENCE
RAMIN, DURANVILLE, HENRI HOSPICE,
ADREE HOSPICE, MAQUIABA, VICTORIN,
IPHAINE, LEGENDART, BERMONT, FLORINE,
LAURENT, MAGLOIRE, SAINTE-ROSE,
ANTISTE, JEREMIE BOCLE, NAL, DIJON,
PEPINTER, PORRO, BAPTE, TAUPIN,
Piaintifis-Appeliants
Cross-Appellees,
TIE ESTATE OF FRANCIS BERTON,
THE ESTATE OF MARIE-PIERRE CADARE,
THE ESTATE OF RAPHAELLE COUFFE,
MARIE-ODILE MONLOUIS-FELICITE,
THE ESTATE OF DAVID SCAGLIONT,
Plaintiffs,
versus
WEST CARIBBEAN AIRWAYS, a Colombian
corporation, ASEGURADORO COLSEGUROS, 8.A.,
a Colombian corporation,
Defendants-Appellees,
NEWVAC CORPORATION, a Florida corporation,
GO 2 GALAXY, INC., a Florida corporation,
JAQUES CIMETIER, individually,
Defendants-Appellees
Cross-Appellants.
App. 4
Appeals from the United States District Court
for the Southern District of Florida
(October 8, 2009)
3efore BARKETT and HULL, Circuit Judges, and
QUIST,* District Judge.
BARKETT, Circuit Judge:
This consolidated appeal arises from several]
wrongful death actions brought by the survivors of
passengers killed in the crash of a McDonnell
Douglas MD-82 aircraft, operating as West Caribbean
Airways Flight 708, in the mountains of Venezuela.
All of the appellants/cross-appellees, plaintiffs in the
proceedings below (“Plaintiffs”), are natural persons
and residents of Martinique, a Department of the
Republic of France, and represent the deceased pas-
sengers of Flight 708.' The appellees/cross-appellants,
defendants below (“Defendants”), are (1) West Carib-
bean Airways, a Colombian corporation operating the
chartered plane that crashed, (2) two Florida Corpo-
rations, Newvac and Go 2 Galaxy, Inc., and (3) the
president of Newvac and Go 2 Galaxy, Jacque
* Honorable Gordon J. Quist, United States District Judge
for the Western District of Michigan, sitting by designation.
' The crew members of Flight 708 are not plaintiffs in this
action and have filed a separate action in the Southern District
of Florida.
App. 5
Cimetier.. Newvac is the entity that chartered the
West Caribbean plane for round-trip flights from
Martinique to Panama. After entering into the char-
ter contract with West Caribbean, Newvac contracted
with Globe Trotter Agency, a Martinique travel
agency, and agreed to provide the aircraft it had
chertered, as well as hotel, transportation, and sight-
seeing services, for excursions between Martinique
and Panama. These excursion packages were then to
be sold by Globe Trotter to individual passengers in
Martinique.
Newvac moved to dismiss the suit on the basis of
forum non conveniens and the district court granted
the motion, finding that Martinique was the more
convenient forum for resolution of the survivors’
claims.’ Plaintiffs appeal that ruling, arguing that the
doctrine of forum non conveniens does not apply
because the international treaty that regulates the
hability of carriers to passengers on international
flights, the Convention for the Unification of Certain
Rules for International Carriage by Air (the “Mon-
treal Convention” or “Convention”), precludes appli-
cation of the doctrine as a matter of international
* We will refer to Newvac, Go 2 Galaxy, and Cimetier
collectively as “Newvac.”
° Defendant West Caribbean Airways filed a motion to
dismiss for lack of personal jurisdiction which has been held in
abeyance until the forum non conveniens issue is finally decided.
App. 6
law.* Alternatively, Plaintiffs argue that, even if the
Convention permits application of the doctrine, the
district court abused its discretion in applying it here.
I.
The doctrine of forum non conveniens permits a
court with venue to decline to exercise its jurisdiction
when the parties’ and court’s own convenience, as
well as the relevant public and private interests,
indicate that the action should be tried in a different
forum. A defendant seeking dismissal for forum non
conveniens bears the burden of demonstrating:
G) that an adequate alternative forum is
available, (ii) that relevant public and
private interests weigh in favor of dismissal,
and (i) that the plaintiff can reinstate his
suit in the alternative forum without undue
inconvenience or prejudice. Pertinent private
interests of the litigants include relative ease
of access to evidence in the competing fora,
availability of witnesses and compulsory
process over them, the cost of obtaining
evidence, and the enforceability of a judg-
ment. Relevant public interests include the
familiarity of the court(s) with the governing
law, the interest of any foreign nation in
having the dispute litigated in its own
“ The district court’s conclusions regarding the availability
of forum non conveniens under the Montreal Convention is a
legal determination which we review de novo.
App. 7
courts, and the value of having local contro-
versies litigated locally.
Liquidation Comm’n of Banco Intercontinental, S.A.
v. Renta, 530 F.3d 1339, 1356-57 (11th Cir. 2008)
(quotations and citations omitted).
Plaintiffs argue that the district court was
precluded from applying this doctrine by _ the
Montreal Convention, which is the exclusive means
by which international air travel passengers can seek
damages for death or personal injury in cases covered
by it.. Chapter III of the Convention is entitled
“Liability of the Carrier and Extent of Compensation
for Damage.” Article 33, located in Chapter III, is the
jurisdictional provision which specifies in which fora
such suits can be brought:
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
* Both the United States and France are parties to the
Montreal Convention.
App. 8
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. .
Thus, under Article 33 of the Convention, suits
for damages by passengers on international flights
can be filed in a limited number of fora, including,
inter alia, the domicile of the “carrier” or the principal
place of business of the “carrier.” In the case of
damage resulting from the injury or death of a
passenger, suit may be brought in the passenger’s
permanent residence if the “carrier”
carriage services to or from that location.
operates air
The term “carrier” is undefined in the Conven-
tion. However, Chapter V of the Convention, entitled
“Carriage by Air Performed by a Person other than
the Contracting Carrier,” addresses situations in
which there is both a “contracting carrer” and an
“actual carrier.” Article 39, located in Chapter V of
the Convention, provides the definitions for “con-
tracting carrier” and “actual carrier”:
The provisions of |Chapter V] apply when a
person (hereinafter referred to as “the
contracting carrier”) as a principal makes a
contract of carriage governed by this
Convention with a passenger or consignor or
with a person acting on behalf of the
passenger or consignor, and another person
(hereinafter referred to as “the actual
App. 9
carrier”) performs, by virtue of authority
from the contracting carrier, the whole or
part of the carriage, but is not with respect
to such part a successive carrier within the
meaning of this Convention. Such authority
shall be presumed in the absence of proof to
the contrary.
These definitions are significant because Article 40,
in Chapter Y, provides that “[ijJf an actual carrier
performs the whole or part of carriage which,
according to the contract referred to in Article 39, is
governed by this Convention, both the contracting
+h
rier and the actual carrier shall, except as cther
wise provided in (Chapter VJ], be subject to the rules
of this Convention, the former for the whole of the
carriage contemplated in the contract, the latter
solely for the carriage which it performs.”
In turn, Article 45 provides that a plaintiff may
bring an action for damages under the Convention
against the actual carrier or the contracting carrier,
or against both together or separately, and Article 46
specifies the fora in which a plaintiff may bring such
a suit. Article 46 provides that “[a]ny action for
damages contemplated in Article 45 must be brought,
at the option of the plaintiff, in the territory of one of
the States Parties, either before a court in which an
action may be brought against the contracting carrier,
as provided in Article 33, or before the court having
jurisdiction at the place where the actual carrier has
its domicile or its principal place of business.” The
district court found that Newvac and/or Go 2 Galaxy
App. 10
was the “contracting carrier” for the flight at issue,
and thus the lawsuit was filed in an appropriate
. ‘ . 6
forum pursuant to the Convention.
The district court next found, however, that
although it had jurisdiction, the Convention did not
preclude application of forum non conveniens. In so
holding, the district court relied on Article 33(4) of
the Convention, which provides that “[qluestions of
procedure shall be governed by the law of the court
seised of the case.” The district court reasoned that
because the doctrine of forum non conveniens is part
of United States civil procedure, the Convention
unambiguously permits its application in accordance
with the law of the forum. The district court also
concluded that the shared expectation of the states
party to the Convention was that those states which
* Newvac challenges this holding on cross-appeal. We find
no merit to this contention. The district court properly concluded
that because “Newvac knowingly assumed the responsibility to
supply the aircraft and crew, and to otherwise conduct itself as a
carrier, for the transportation of Glebe Trotter’s customers,” it
was a “contracting carrier” within the meaning of Article 39 of
the Montreal Convention. The court correctly rejected Newvac’s
argument that because the actual passengers were not known to
Newvac at the time it contracted with Globe Trotter, Newvac
could not be a “contracting carrier” under the Convention. The
Newvac-Globe Trotter contract clearly provided that Globe
Trotter would procure passengers for the flights and tour
packages that would be supplied by Newvac and that, once the
passengers had been procured, Globe Trotter would forward
their information to Newvac so Newvac could issue the rclevant
travel documents, including individual passenger tickets.
App. 11
recognized the doctrine could continue to apply it. We
find no error in these conclusions.
When interpreting a treaty, we begin with the
words of the treaty in the context in which the words
are used. Volkswagenwerk Aktiengesellschaft v. Schlunk,
486 U.S. 694, 699 (1988). Plaintiffs concede that the
starting point of treaty interpretation is the relevant
text and recognize that the treaty expressly provides
that “[qjuestions of procedure” are governed by the
law of the forum in which the case is validly brought.
They argue, however, that because the Convention
does not specifically affirm the availability of forum
non conveniens, it should not be permitted in cases
arising under it. We find this argument untenable for
two reasons. First, there is no dispute that forum non
conveniens is a “question[ ] of procedure” under U.S.
law and thus it clearly falls within the ambit of
Article 33(4). Second, under Plaintiffs’ theory, all
state procedural rules would have to be specifically
enumerated in order to be applicable under the
Convention, and we do not believe the Convention’s
drafters intended such an absurd result.
Plaintiffs further argue that to permit the appli-
cation of forum non conveniens would undermine
the purpose and implementation of the Convention’s
jurisdictional provisions, which have already enumer-
ated the five “convenient” jurisdictions for purposes of
adjudicating international carrier liability. Although
we acknowledge Plaintiffs’ concerns, we think the
purpose of the Convention is adequately safeguarded
under traditional forum non conveniens analysis. As
App. 12
the district court pointed out, forum non conveniens
would permit dismissal under the Convention only if
the alternative forum was authorized to hear the case
under Article 33(1) or (2) and was “demonstrably the
more appropriate venue.”
We therefore find no ambiguity or limitation in
the express language of Article 33(4), which states in
no uncertain terms that questions of procedure —
which can only reasonably be read to include all
questions of procedure — are governed by the rules of
the forum state.’ As the district court correctly noted,
the doctrine of forum non convenience is “firmly
entrenched in the procedural law of the United
States.” In addition, we are satisfied that a district
court may — where appropriate — exercise its discre-
tion to apply forum non conveniens, without inter-
fering with the implementation of the Convention, so
The two cases on which Plaintiffs principally rely, Hosaka
v. United Atrlines, Inc., 305 F.3d 989 (9th Cir. 2002), and Milor v.
British Airways, Pic., [1996] Q.B. 702 (Eng. C.A.), are distin-
guishable and do not, as Plaintiffs suggest, create an ambiguity
in Article 33(4). Among other distinguishing factors, both cases
involved interpretation of the Warsaw Convention, a predecessor
to the Montreal Convention drafted in 1929, at which time
forum non conveniens, in its current form, was not recognized
under U.S. law. Indeed, the Hosaka court explicitly noted that it
was not addressing the applicability of forum non conveniens
under the (at the time unratified) Montreal Convention.
App. 13
long as another Convention jurisdiction is available
and can more conveniently adjudicate the claim.”
If.
Having found that the Convention is not a bar to
the application of forum non conveniens, we turn to
Plaintiffs’ alternative argument that the district court
abused its discretion in applying it here. As noted, a
party seeking dismissal for forum non conveniens
must demonstrate:
(1) that an adequate alternative forum is
available,
(2) that relevant public and private inter-
ests weigh in favor of dismissal, and
(3) that the plaintiff can reinstate his suit
in the alternative forum without undue in-
convenience or prejudice.
Plaintiffs do not challenge the district court’s deter-
mination that Martinique is an adequate alternative
forum or that they can reinstate their suit in
Martinique without undue prejudice or inconven-
ience. Rather, Plaintiffs argue that the district court
abused its discretion by failing to adequately analyze
* Contrary to Plaintiffs’ assertions, we think the drafting
history of the Convention is clear that it was the shared intent
of the states party that each state could continue to apply its
procedural rules, including forum non conveniens.
App. 14
the relevant private and public interest factors. We
find no merit to Plaintiffs’ arguments.
In determining whether to grant a motion to
dismiss for forum non conveniens, courts consider
such private interests as the comparative ease of
access to evidence in the competing fora, the avail-
ability of witnesses and compulsory process over
them, and the cost of obtaining evidence. See, e.g.,
Renta, 530 F.3d at 1356-57; Aing v. Cessna Aircraft
Co., 562 F.3d 1374, 1383-84 (llth Cir. 2009); La
Seguridad vu. Transytur Line, 707 F.2d 1304, 1307
(llth Cir. 1983).
Ordinarily, these private factors would weigh in
favor of a plaintiff residing in the forum state and
therefore, we apply a presumption of convenience to
U.S. residents suing in U.S. courts. See SME Racks,
Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382
F.3d 1097, 1100-01 (llth Cir. 2004). This deference,
though still applicable, is weakened when plaintiffs
are non-U.S. residents. Jd. Plaintiffs argue, however,
that although they are not U.S. residents, their choice
of forum is entitled to heightened deference because
their access to U.S. courts is granted by an inter-
national treaty with a specific venue provision. The
logic of this conclusion stems from the fact that the
Convention has already done part of the work in
selecting a convenient forum -- all potential jurisdic-
tions under the Convention bear some connection,
broadly speaking, to the air crash. Thus, their choice
of forum is entitled to greater deference than non-
U.S.-resident plaintiffs not acting pursuant to a
App. 15
treaty. Among other things, Plaintiffs point out that,
unlike other defendants who may be surprised by
U.S. lawsuits by foreign plaintiffs, international air
carriers are aware of the Montreal Convention and
can prepare, with their insurers, for the possibility of
liability under it.
Regardless of the merits of Plaintiffs’ argument
on this point, however, the analysis cannot end with a
presumption of convenience, but must address the
actual convenience of the various available fora. See
Cessna Aircraft Co., 562 F.3d at 1383 (noting that
“although citizenship often acts as a proxy for conven-
ience in the forum non conveniens analysis, the
appropriate inquiry is indeed convenience”); see also
>
Aldana v. Del Monte Fresh Produce N.A., Inec., —__
F.3d__, No. 07-15471, 2009 WL 2460978, at *9 (11th
Cir. Aug. 13, 2009) (affirming the district court’s
dismissal on the basis of forum non conveniens where
plaintiffs were residents of the U.S., but all other
private interest factors favored dismissal). As the
district court correctly pointed out, the greater defer-
ence accorded to a U.S. resident follows from the
reasonable assumption that a plaintiff choosing her
home forum does so because it is convenient. See
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56
(1981).
In this case, as the district court noted, Defen-
dants have conceded hability and waived applicable
damage caps under the Convention in the Martinique
court. Thus, the only issue to be tried — and therefore
the principle focus of the convenience analysis — is
App 16
the amount of damages to which each Plaintiff is
entitled. Therefore, with respect to the availability of
evidence and witnesses, the analysis strongly favors
Martinique, the residence of all the Plaintiffs.
Plaintiffs do not dispute that all of the witness and
documentary evidence regarding damages, as well as
all or virtually all of the non-party factual] witnesses,
are located in Martinique, beyond the compulsory
process of the district court. To the extent that non-
party witnesses in Martinique would be willing to
testify in Florida, they would have to travel to the
United States at considerable expense and personal
inconvenience.
Plaintiffs counter that any expense or other
burden associated with gathering and producing
damages evidence will be theirs to bear, because it is
their burden to prove damages. They further point
out that Defendants have offered no details regarding
any actual inability to procure non-U.S. witnesses or
evidence on the damages issue and that, in the days
of satellite telephones and inexpensive air travel,
these arguments are entitled to less weight. Although
we acknowledge Plaintiffs’ arguments on this point,
we cannot say that the district court abused its
discretion in determining that the United States was
an inconvenient forum for both parties in which to
determine damages. In other words, the ability of the
Defendants to prepare their defensive case with
App. 17
respect to damages is a proper consideration in the
convenience analysis
Nor did the district court err when it rejected
Plaintiffs’ argument that because Defendants’ poten-
tial third-party claims against U.S. manufacturers
could more conveniently be brought in the United
States, private interest considerations militated
against dismissal. Plaintiffs do not contend that the
” The district court recently denied a dismissal on forum
non conveniens grounds in the related case brought by the crew
members who perished in the same crash as Plaintiffs. /n re
West Caribbean Crew Members, 632 F. Supp. 2d 1193 (S.D. Fla
2009). Plaintiffs point out that the crew members, like Plaintiffs,
are non-U.S. residents, and therefore litigation of their claim in
a U.S. court gives rise to the same evidence issues the district
court relied upon in dismissing their case on forum non
conveniens grounds. We disagree. The crew member claims are
product liability claims and thus are distinct from Plaintiffs’
claims under the Montreal Convention, pursuant to which
liability is presumed. We are therefore not persuaded that the
district court’s forum non conveniens analysis as to Plaintiffs’
claims is inconsistent with, or should be affected by, its adjudi-
cation of the crew member claims in a U.S. forum.
Plaintiffs argue that the process of apportioning liability
between the carrier Defendants and the U.S. manufacturers in
France, with its complex evidentiary and translation issues, will
cause them an “inconvenient” delay. However, we are not con-
vinced that such a delay will be significantly worse in France
than in the United States, nor in any event do we believe that
the district court’s rejection of this argument constitutes an
abuse of discretion. Moreover, Plaintiffs’ reliance on Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981) is somewhat
misplaced. In that case, it was Defendants who argued that
Plaintiffs’ choice of forum would prejudice their abilitv to
implead third parties, and the Supreme Court agreed that it was
(Continued on following page)
App. 18
U.S. manufacturers cannot be impled [sic] in an
action in Martinique nor that evidence pertaining to
such third-party claims is not available’ in
Martinique.” Although access to U.S. manufacturers’
evidence is admittedly somewhat more difficult in a
foreign forum as opposed to the United States, the
district court did not abuse its discretion in finding
that this burden — which is Defendants alone to bear
in any event — was outweighed by the inconvenience
to both parties of accessing damages evidence in
Martinique, respecting over a hundred decedents and
their beneficiaries.
Public interest considerations include factors
such as (1) the forum’s interest in entertaining the
suit; (2) court congestion and jury duty generated by
more convenient to resolve all claims in one forum. Here, of
course, Defendants have proposed the alternative forum.
Plaintiffs argue that it is not their burden to demonstrate
that evidence regarding third-party claims will be accessible in
Martinique, Leon v. Million Air, 251 F.3d 1305, 1311 (11th Cir.
2001), and that the district court impermissibly shifted the
burden of persuasion to Plaintiffs to demonstrate why Martinique
would be inconvenient to them. While it is true as a matter of
law that Defendants bear the burden of persuasion on forum
non convemiens, we are not persuaded by this argument. The
district court’s observation that Plaintiffs would not be incon-
venienced by litigating third-party claims in Martinique did not
impermissibly shift the burden to Plaintiffs but instead was
simply one of many factors to be weighed in assessing the
various private interests of the litigants. And, we agree with the
district court that the relative ease of access to third-party
evidence, unlike damages evidence, ultimately will be of concern
only to Defendants.
App. 19
the lawsuit; (3) the desirability of having localized
controversies decided at home; and (4) the difficulty
in determining applicable law and applying foreign
law. La Seguridad, 707 F.2d at 1307. The district
court likewise did not abuse its discretion in deter-
mining that these factors weigh in favor of Mar-
tinique as the proper forum for Plaintiffs’ claims.
As the district court pointed out, although the
United States has an interest in deterring the alleged
tortious conduct of Newvac and other U.S. third-party
defendants, that interest is outweighed by Mar-
tiniaue’s interest in adjudicating actions that aim to
A
° ° . ° ace 12
redress injuries to its citizens.” Moreover, any
deterrent impact on Newvac is not eliminated merely
because damages are determined in Martinique
rather than in the United States. Therefore, the
United States’ interest in adjudicating Plaintiffs’
claims does not justify the enormous commitment of
time — both of the court and of jurors — and other
judicial resources that would be consumed by the
presentation of live testimony and documentary
12
Plaintiffs argue that Martinique has a state interest in
ensuring that the rights of its citizens to their choice of forum
under the Montreal Convention are respected. They further
argue that the United States has a significant interest in
deterring corporate misconduct like that of Newvac, which
continues to act as a contracting carrier under U.S. laws. Again,
while we acknowledge the competing public interests at work in
this analysis, we do not believe the district court abused its
discretion in crediting the undeniable interest of Martinique in
redressing injuries to its citizens.
App. 20
evidence in a foreign language. Finally, the district
court found that although litigating third-party
claims in Martinique would be more convenient in a
U.S. forum than in Martinique, the burden of transla-
tion in Martinique with respect to these claims is not
as great as the burden of presenting French damages
evidence in the United States. This is so because the
Martinique court designated to hear Montreal Con-
vention claims does so in writing only and will not
hear testimony. Thus, Defendants will not bear the
burden of translating live testimony in Martinique as
both parties would in the United States.”
In sum, the district court did not err in deter-
mining that the Montreal Convention does not pre-
clude the use of forum non conveniens in U.S. courts
nor did it abuse its discretion in dismissing Plaintiffs’
claims on forum non conveniens grounds.
AFFIRMED.
We are not persuaded by Plaintiffs’ argument that the
district court erred in failing to consider the fact that Defen-
dants made no argument that the congestion factor supports
dismissal. The failure of Defendants to make an argument on
this issue is not fatal to their forum non conveniens argument if,
as the district court determined, other factors clearly support a
dismissal.
App. 21
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 06-22748-CIV-UNGARO
IN RE: WEST CARIBBEAN
AIRWAYS, S.A., et al.,
Defendants.
PRELIMINARY ORDER ON DEFENDANTS’
MOTION TO DISMISS ON GROUNDS
OF FORUM NON CONVENIENS
(Filed Sept. 26, 2007)
THIS CAUSE is before the Court upon Defen-
dants’ Motion to Dismiss on Grounds of Forum Non
Conveniens. D.E. 54’ This order follows a May 11,
2007 status conference during which the parties
apreed to brief the following discrete issues per-
taining to Defendants’ Motion: (1) whether Newvac is
a “contracting carrier” within the scope of the Mon-
treal Convention;’ and, whether the Court may apply
the forum non conveniens doctrine in an action
arising under the Montreal Convention. See D.E.
94 (Order Setting Briefing Schedule); 95 (Order
Requesting a Statement of Interest from the United
' The Motion was filed by Defendants Jacques Cimetier,
Newvac Corporation, and Go 2 Galaxy, Inc.
* The Convention for the Unification of Certain Rules for
International Carriage by Air, May 28, 1999 (entered into force
on Nov. 4, 2003), reprinted in S. Treaty Doc. No. 106-45, 1999
WL 33292734 (hereinafter “Montreal Convention”).
App. 22
States);? 97 (Tr. of Status Conf.). The Court has con-
sidered the parties’ memoranda (D.E. 101, 113), the
United States’s Statement of Interest (D.E. 116), and
is otherwise fully advised in the premises.
Facts
This action arises out of the August 16, 2005
airplane crash in Venezuela of West Caribbean Air-
ways flight 708, while en route from Panama to
Martinique. Plaintiffs are, and the decedents were,
residents of Martinique, a Department of the Repub-
lic of France. See D.E. 152 (Am. Compl.) at paras. 7,
74. Defendant West Caribbean Airways, §8.A. is a
Colombian corporation with offices in Medellin, Colom-
bia. Jd. at para. 9. Defendants Newvac Corporation
and Go 2 Galaxy, Inc. are Florida corporations. /d. at
para. 15.
On March 15, 2005, Newvac entered into a
“charter contract” with West Caribbean Airways in
Medellin, Colombia, pursuant to which West Carib-
bean was to provide a 152-passenger MD-81 aircraft
and crew, for charter flights occurring during May,
July and August 2005. See D.E. 99 (McCune Decl.),
* The Court permitted the United States to submit a state-
ment of interest, pursuant to 28 U.S.C. § 517, respecting its
position as to the availability of the forum non conveniens
doctrine in a case governed by the Montreal Convention.
* See Brian Ellsworth, Airline Crash in Venezuela Kills 160
(visited Aug. 14, 2007) <http://www_npr.org/templates/story/story.
php?storyld=4802464>.
App. 23
Ex. “5” (English translation of Charter Contract,
originally in Spanish, executed by Jacques Cimetier
on behalf of Newvac, d/b/a Go-2 Vacations). There-
after, on April 25, 2005, Newvac entered into a “con-
tract for air chartering” with Globe Trotter Agency, a
travel agency in Martinique, whereby Newvac agreed
to provide the aircraft it chartered from West
Caribbean to Globe Trotter for a series of excursions
between Martinique and Panama. See D.E. 99 (McCune
Decl.), Ex. “7” (English translation of Charter Con-
tract, originally in French, executed by Jacques
Cimetier on behalf of Newvac, d/b/a Go-2 Vacations).
Newvac aiso provided Globe ‘lrotter with the hotel,
transportation and “sightseeing” for these excursions.
See D.E. 145 (Cimetier Depo.) at 185:6-186:4. All of
the passengers were killed when West Caribbean’s
aircraft crashed during their return trip from Pana-
ma following one of the excursions sold by Globe
Trotter. See D.E. 152 (Am. Compl.) at paras. 31-33,
41, 52, 75; D.E. 113 (Defs.’ Reply) at 5.
Contracting Carrier
The parties dispute whether Newvac is a “con-
tracting carrier,” as that term appears in Article 39 of
the Montreal Convention (titled “Contracting Carrier
— Actual Carrier”), which states:
App. 24
The provisions of this Chapter” apply when
a person (hereinafter referred to as “the
contracting carrier”) as a principal makes a
contract of carriage governed by this Con-
vention with a passenger or consignor or
with a person acting on behalf of the passen-
ger or consignor, and another person (here-
inafter referred to as “the actual carrier”)
performs, by virtue of authority from the
contracting carrier, the whole or part of the
carriage, but is not with respect to such part
a successive carrier within the meaning of
this Convention. Such authority shall be
presumed in the absence of proof to the
contrary.
Montreal Convention, art 39. This issue has impor-
tance because Plaintiffs wish to argue that this Court
has jurisdiction over, and is required to adjudicate
this dispute pursuant to Articles 33 and 46 of the
Montreal Convention due to Newvac’s domicile in the
Southern District of Florida. See, e.g., D.E. 101 (Pls.’
Mem. in Opp’n to Mot.) at 4-5.
Plaintiffs first submit that there must be a “con-
tracting carrier” in this case because the actual car-
rier — West Caribbean Airways — “had no opportunity
to enter into a direct contractual relation with the
passengers,” and according to Plaintiffs, only Newvac
fits within the term’s definition. /d. at 6. Specifically,
* “(This Chapter” refers to Chapter V of the Convention,
titled “Carriage by Air Performed by a Person other than the
Contracting Carrier.”
App. 25
Plaintiffs submit that Newvac acted as a principal in
this case because it profited by contracting for the
seating capacity on the West Caribbean aircraft,
thereafter reselling it for a higher price to Globe
Trotter, which acted on behalf of passengers when it
sold individual seats on the aircraft. Jd. Plaintiffs add
that West Caribbean performed “the whole or part of
the carriage” under the authority of its contract with
Newvac. Id. at 6-7 (also citing law review articles”
that Plaintiffs submit in support of their argument
that a tour operator that packages and resells air
transportation is a “contracting carrier” under the
Montreal Convention).
Plaintiffs further note that the term “carrier” is
not defined in the Warsaw’ or Montreal Conventions,
and therefore, urge consideration of how the United
States defines “carrier” in other related contexts.
Id. at 8. In this regard, Plaintiffs cite section
40102(a)(2) of the Federal Aviation Act (i.e., 49 U.S.C.
“
§ 40102(a)(2)), which defines an “air carrier” as “a
* Trevor Atherton, Unlimited Liability for Air Passengers:
The Position of Carriers, Passengers, Travel Agents and Tour
Operators Under the LATA Passenger Liability Agreement Scheme,
63 J. Air L. & Com. 405, 417-18 (1997); Tory A. Weigand, The
Modernization of the Warsaw Convention and the New Liability
Scheme for Claims Arising Out of International Flight, 84 Mass.
L. Rev. 175, 180 (2000).
" The Convention for the Unification of Certain Rules Relat
ing to International Transportation by Air, Oct. 12, 1929, 49
Stat. 3000, T.S. No. 876 (1934), note following 49 U.S.C. § 40105
(hereinafter “Warsaw Convention”).
App. 26
citizen of the United States undertaking by any
means, directly or indirectly, to provide air transpor-
tation.” Jd. (emphasis added). In addition, Plaintiffs
cite 14 C.F-R. § 380.2, promulgated thereunder, which
states in pertinent part: “Indirect air carrier means
any person who undertakes to engage indirectly in air
transportation operations and who uses for such
transportation the services of a direct air carrier.” Jd.
Plaintiffs also refer to the Air Transportation Opera-
tions Inspector’s Handbook of the U.S. Federal Avia-
tion Administration, Order 8400.10, Change 36, Vol.
2, Ch. 1, § 2 at 2-12, which provides in pertinent part
that:
An indirect air carrier is a company that
contracts aircraft and crew services from an
air carrier or commercial operator but may
not engage in control over the operational
function of any flight. Examples of indirect
air carriers include freight forwarders, brok-
ers, or public charter operators. An indirect
air carrier will act as an agent for either the
customer or the air carrier... .
See D.E. 99 (McCune Decl.), Ex. “12”. In addition,
Plaintiffs cite federal cases supporting the proposition
that travel agents, tour operators, charterers and
nominal “social clubs” that sell tours and air trans-
portation publicly may be considered “indirect air
carriers” subject to certification and similar require-
ments under the FAA. See D.E. 101 (Pls.’ Mem. in
Opp’n to Mot.) at 9 (citing Monarch Travel Servs. v.
Associated Cultural Clubs, 466 F.2d 552 (9th Cir.
App. 27
1972), cert. denied, 410 U.S. 967 (1973); Arkin uv.
Trans Int. Airlines, Inc., 568 F. Supp. Ll (E.D.N-Y.
1982); U.S. v. Caribbean Ventures, Lid., 387 F. Supp.
1256 (D.N.J. 1974)).
Plaintiffs also cite the U.S. Department of Trans-
portation’s “Notice on the Role of Air Charter Brokers
in Arranging Air Transportation,” which states in
pertinent part:
The Enforcement Office has become aware
that there are air charter brokers not hold-
ing economic authority from the Department
who solicit and directly with 2
charter customer for air transportation and
then solicit and separately contract directly
with a direct air carrier to operate the air
service promised to the charter customer
under the charter broker’s contract with that
customer. With respect to payment for the
proffered air transportation, two separate
transactions commonly occur: (1) The air
charter broker collects all of the monies paid
by the charter customer pursuant to the
broker’s contract with the customer, and
(2) the air charter broker then turns over a
portion of these monies to the direct air
carrier pursuant to the broker’s separate
contract with the carrier. In such instances,
the air charter broker is not acting as an
agent for the operating carrier or for the
charter customer. Rather, the air charter
broker is acting as a principal in both trans-
actions, and, with respect to its relation-
ship with the customer, is engaged in air
App. 28
transportation as an indirect air carrier
without economic authority in contravention
of the statutory and Department licensing
requirements described above.
Id. (citing 69 Fed. Reg. 61429-02, 61430 (2004)).
Plaintiffs submit that this description fits Newvac’s
role in the instant case, as Newvac made two sepa-
rate transactions, one with Globe Trotter and the
other with West Caribbean, making a profit on the
difference between what it paid for the air trans-
portation and the price it received from Globe Trotter.
Id. at 9-10.
Finally, Plaintiffs suggest Newvac is a “loophole
airline” and that public policy dictates that therefore,
Newvac be considered a “contracting carrier.” /d.
at 10. The “loophole airline” label is given to un-
regulated U.S. entities that compete with U.S. car-
riers by chartering cheaper foreign-flagged aircraft
with less stringent safety standards. /d. The problem
of “loophole airlines” was addressed in a 1991 hearing
before the Subcommittee on Investigations and Over-
sight of the U.S. House of Representatives’ Commis-
sion on Public Works and Transportation. /d.
In response to Plaintiffs’ arguments, Defendants
maintain that Newvac was not a “contracting carricr”
because there were no passengers with whom to con-
tract when Newvac entered into its contract with
Globe Trotter. See D.E. 113 (Defs.’ Reply) at 4. Thus,
Defendants submit that Newac [sic] could not have
made a “contract of carriage” with any “passenger”
App. 29
nor “a person acting on behalf of the passenger,” as
required by the literal terms of Article 39. /d.
Defendants add that Newvac was an “indepen-
dent intermediary” not in privity with any passenger
in that: (a) Newvac sold the entire capacity of each
flight to Globe Trotter; (b) it was for Globe Trotter, at
its own risk, to sell individual seats to passengers;
and; (c) the “carrier” to operate the flights was West
Caribbean. /d. at 4-5. Further, Defendants note that
Globe Trotter advertised the subject flights, solicited
ihe passengers, and entered into “contracts of car-
riage” at the retail ievel with each of them. /d. Thus,
Defendants submit that it is impossible to argue that
Newvac, whether as principal or agent, entered into
any contracts of carriage with any of the passengers.
Id.
With respect to Plaintiffs’ argument that Newvac
acted as a principal because it sold the seats on the
aircraft for more than it paid West Caribbean, Defen-
dants submit that if that is the test, then Globe
‘Trotter was likewise acting as a principal in entering
into contracts of carriage with the passengers because
Globe Trotter sold the seats to each passenger for
more than it paid Newvac. /d. at 5. According to
Defendants, “it is an entirely illogical leap for plain-
liffs to argue that merely because Newvac was acting
as a principal vis-a-vis |West Caribbean], it was also
acting as a principal in making contracts of carriage
with the individual passengers.” [d
App. 30
Defendants also note, respecting Plaintiffs’ cita-
tion to U.S. Department of Transportation precedent
and law, that Newvac’s contracts with West Carib-
bean and Globe Trotter were executed abroad. ld. at
5-6. Accordingly, Defendants submit that “[f Jor plain-
tiffs to argue that U.S. or U.S.D.O.T. law should
apply to such foreign executed contracts, especially
when the flight had no contact with the United States
and none of the passengers was an American citizen
or resident, would represent an extraterritorial exten-
sion of U.S. jurisdiction that would be both unprece-
dented and highly precarious in the history and
current practice of international air law.” Jd. at 6.
Finally, Defendants submit that Plaintiffs’ posi-
tion would be bad policy in that it would expose
“ordinary travel agents, individuals and small com-
panies” to full common carrier liability. /d. at 6.
According to Defendants, the liability requirements of
a carrier operating to or from the United States are
minimally $300,000,000, and for France $450,000,000
Id. Thus, Defendants maintain that imposing such
requirements on individuals like Cimetier or com
panies like Newvac “would jeopardize the economic
viability of very substantial segments of the airline
industry.” Jd.
App. 3l
Treaty Interpretation Principles
As noted in Eastern Airlines, Inc. v. Floyd, 499
U.S. 530 (1991):
When interpreting a treaty, we begin with
the text of the treaty and the context in
which the written words are used. Other
general rules of construction may be brought
to bear on difficult or ambiguous passages.
Moreover, treaties are construed more liber-
ally than private agreements, and to ascer-
tain their meaning we may look beyond the
written words to the history of the treaty, the
negotiations, and the practical construction
adopted by the parties.
Id. at 534-35 (internal citations and quotation marks
omitted); see also El Al Israel Airlines, Ltd. v. Tsui
Yuan Tseng, 525 U.S. 155, 167 (1999) (stating: “It is
our responsibility to give the specific words of the
treaty a meaning consistent with the shared expec-
tations of the contracting parties. Because a treaty
ratified by the United States is not only the law of
this land, see U.S. Const., Art. II, § 2, but also an
agreement among sovereign powers, we have tradi-
tionally considered as aids to its interpretation the
negotiating and drafting history (travaux prépara-
toires) and the postratification understanding of the
contracting parties”) (internal citation and quotation
marks omitted). Further, “[allthough not conclusive,
the meaning attributed to treaty provisions by the
Government agencies charged with their negotia-
tion and enforcement is entitled to great weight.”
App. 32
Sumitomo Shojt America, Inc. v. Avagliano, 457 U.S.
176, 184-85 (1982).
Analysis
Again, Article 39 of the Montreal Convention
states:
The provisions of this Chapter apply when a
person (hereinafter referred to as “the con-
tracting carrier”) as a principal makes a
contract of carriage governed by this Con-
vention with a passenger or consignor or
with a person acting on behalf of the passen-
ger or consignor, and another person (here-
inafter referred to as “the actual carrier”)
performs, by virtue of authority from the
contracting carrier, the whole or part of the
carriage, but is not with respect to such part
a successive carrier within the meaning of
this Convention. Such authority shall be
presumed in the absence of proof to the
contrary.
Montreal Convention, art. 39. The Court finds that
the foregoing language is unambiguous and that un-
der the facts of this case, it applies to Newvac.
3y the plain terms of Article 39, Newvac is a
“contracting carrier” in this case if it was: (1) a person
(“the contracting carrier”) that made a contract of car-
riage governed by the Montreal Convention; (2) it did
SO as a principal; (3) the contract was with a passen-
ger or consignor, or with a person acting on either’s
behalf; and (4) another person (“the actual carrier”)
App. 33
performed the carriage by virtue of authority from
the [sic] “the contracting carrier.”
First, Newvac is “a person” that made a “contract
of carriage governed by [the] Convention.” In this
regard, the Court notes that the Convention “applies
to all international carriage of persons ... by air-
craft. ..” (id., art. 1(1)), and that the contract
between Newvac and Globe Trotter concerned the
“nternational carriage” of persons by aircraft (Z.e.,
carriage of passengers from Martinique-Panama-
Martinique onboard West Caribbean’s MD-81 air-
craft). See D.&. SS (McCune Deci.), Ex. “7” Cingiisn
translation of Newvac-Globe Trotter contract); Montreal
Convention, art. 1(2) (providing that “international
carriage means any carriage in which, according to
the agreement between the parties, the place of
departure and the place of destination ... are situ-
ated either within the territories of two States Par-
ties,” or within the territory of a single State Party if
there is an agreed stopping place within the territory
of another State, even if that State is not a State
Party... .”). Thus, the Court finds that the Newvac-
Globe Trotter contract is a contract of carriage gov-
erned by the Montreal Convention.
“ France and Panama became “State Parties” to the Con-
vention prior to the accident at issue herein. See International
Civil Aviation Organization List and Current Status of Inter-
national Air Law Multilateral Treaties/Montreal Convention
(available at <http://www.icao.int/icao/en/eb/mtl99.pdf> (visited
Sept. 4, 2007)).
App. 34
Further, Newvac acted as a “principal” when it
made the contract of carriage with Globe Trotter.
Under international and maritime law, a “person” can
act either as an ayent or a principal when contracting
for transportation, depending on whether it acts on
its own initiative or for another.” In this case, Newvac
acted as a “principal” because it contracted with West
Caribbean for its aircraft and crew, and then in-
dependently contracted to supply air transportation
and ancillary services to Globe Trotter. See D.E. 99
” Cf. James N. Kirby, Pty Ltd. v. Norfolk Southern Ry. Co.,
300 F.3d 1300, 1305-06 (11th Cir. 2002), rev'd on other grounds
sub nom. Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14
(2004) (explaining that freight forwarders may act as agents of
cargo owners or as principals and concluding that the freight
forwarder under consideration acted as a principal]); accord Clive
M. Schmitthoff, Schmitthoff’s Export Trade, The Law and Prac-
tice of International Trade 302-05 (9th ed. 1990) (also noting that
in the context of modern international transportation Conven-
tions such as the Guadalajara Convention, a “contractual carrier
is a person who has contracted to move the goods from one placc
to another, although he does not carry out the transportation
himself but leaves this task to the actual carrier with whom he
has contracted”); id. at 623 (noting that a “contracting carrier” is
one who “as a principal, makes an agreement for carriage with
the consignor or the consignor’s agent. In many cases the con-
tracting carrier will be the first or sometimes the only carrier by
air, but the contracting carrier may also be one who merely
issues a waybill, or an aircraft charterer, or a cargo consolidator
or forwarder”); see also 69 Fed. Reg. 61429-02, 61430 (2004)
(quoted above, outlining the scenario where an air charter brok-
er acts as a principal, not as agent, respecting its relationship
with both the air carrier and the customer, and with respect to
the latter, “is engaged in air transportation as an indirect air
Carrier. ...”).
App. 35
(McCune Decl.). Ex. “7” (English translation of Newvac-
Globe Trotter contract) at 1 (providing that “[Globe
Trotter] wishes to charter seats from [Newvac]” and
that “[Newvac] shall make available ... passenger
transport... .”).
In reaching this conclusion, the Court has con-
sidered Defendants’ contention that Newvac cannot
be deemed a “principal” because it merely assigned
the aircraft's seating capacity to Globe Trotter. But
this argument, as the Court understands it, assumes
that Newvac cannot be characterized as a “principal”
witnous the Court identifying a cerresponding agent,
in this case Globe Trotter. This assumption is un-
warranted. The language of Article 39 is derived from
the Guadalajara Convention’s definitions of “contract-
ing carrier” and “actual carrier.” See S. Treaty Doc.
No. 106-45, 1999 WL 33292734, at 10, 18, 34." The
term “principal” under Guadalajara did not contem-
plate the necessity of an agency relationship; that is,
that because there is a “principal” there must be an
agent. The term was specifically used to ciarify that
those acting solely as agents could not qualify as
“contracting carriers.” In any event, Defendants’
Citations are to the page numbers in the printed docu-
ment.
' See International Civil Aviation Organization Doc. 8301-
14°0/149-1, Minutes of the International Conference on Private
Air Law, Guadalajara, Aug.-Sept. 1961, at 39-48, 186-89, 199-
200, 262-64; Doc. 8301-LC/149-2, Documents, at 19, 46, 48;
Restatement (Third) of Agency § 1.01 cmt. b (2006) (recognizing
that: “the terminology of agency is widely used in commercial
(Continued on following page)
App. 36
argument relies on a distortion of the facts because
during the term of its contract with Globe Trotter,
Newvac remained responsible for supplying the air-
craft and crew, and monitoring and ensuring West
Caribbean’s performance of the Newvac-Globe Trotter
contract. See D.E. 99 (McCune Decl.). Ex. “7” (English
translation of Newvac-Globe Trotter contract) at 1;
D.E. 145 (Cimetier Depo.) at 178:16-179-12, 190:25-
191:7, 212:21-214:17. These facts show that West
Caribbean was acting “by virtue of authority from
[Newvac]}” in transporting the passengers. More im-
portantly, they illustrate that Newvac stepped into
the shoes of and assumed the role of “carrier.”
Finally, although Defendants advance an inter-
pretation of the language, “acting on behalf of the
passenger,” as requiring Globe Trotter to be acting on
behalf of passengers identified prior to Newvac’s
execution of the Newvac-Globe Trotter contract, the
Court declines to adopt this rigid construction. Courts
utilize flexible principles to interpret treaty provi-
sions and effect the drafters’ intentions. See Floyd,
499 U.S. at 535 (noting that treaties are construed
more liberally than private agreements); accord
Western Digital Corp. v. British Airways, PLC, [2001]
1 All E.R. 109 at paras. 38-40; Air France v. Saks, 470
settings and academic literature to characterize relationships
that are not necessarily encompassed by the legal definition of
avency.... In commercial settings, the term “principal” is often
used to designate one who benefits from or is affected by the acts
of another, or one who sponsors or controls another’).
App. 37
U.S. 392, 405 (1985) (defining the term “accident” in
the context of Article 17 of the Warsaw Convention
and noting that “[t]his definition should be flexibly
applied after assessment of all the circumstances sur-
rounding a passenger’s injuries”). Newvac and Globe
Trotter clearly contemplated that Globe Trotter would
procure passengers for the flights and the fully in-
clusive tour packages that were to be supplied by
Newvac, and that Globe Trotter would act on behalf of
the passengers in this regard. The parties’ expecta-
tions are evident from the Newvac-Globe Trotter
contract, which required that once the passengers
purchased their tour packages from Globe Trotter,
Globe Trotter was obligated to forward the passen-
gers’ information to Newvac so that Newvac could,
among other things, issue the corresponding travel
documents, including the individual passenger tickets.
See D.E. 99 (McCune Decl.), Ex. “7” (English trans-
lation of Newvac-Globe Trotter contract) at 4, para. 8;
145 (Cimetier Depo.) at 212:21-214:17. Thus, the fact
that the actual passengers were not known at the
inception of the Newvac-Globe Trotter contract should
not, in the Court’s view, be determinative. Cf. Block v.
Compagnie Nationale Air France, 386 F.2d 323, 334-
36 (5th Cir. 1967) (examining whether the Warsaw
Convention applied in the context of an accident
involving a chartered aircraft and determining, inter
alia, that under the facts of the case (e.g., the char-
terer “was to obtain the passengers for the flight”),
the charterer acted on behalf of the passengers in
entering into the charter agreement). Rather, the
focus should be on the fact that Newvac knowingly
App. 38
assumed the responsibility to supply the aircraft and
crew, and to otherwise conduct itself as an air carrier,
for the transportation of Globe Trotter’s customers.
Therefore, the Court finds that Newvac was a “con-
tracting carrier” within the meaning of Article 39 of
the Montreal Convention.”
Forum Non Conveniens
Plaintiffs, relying in large part on Hosaka uv.
United Airlines, Inc., 305 F.3d 989 (9th Cir. 2002),
contend that Newvac’s status as a “contracting car-
rier” confers mandatory jurisdiction on this Court
pursuant to Article 33 of the Montreal Convention,
thereby precluding dismissal of the actions based on
forum non conveniens. See, e.g., D.E. 101 (Pls.” Mem.
in Opp’n to Mot.) at 11-27. Defendants respond that
the Montreal Convention’s drafting history reflects
that the signatory countries contemplated that forum
non conveniens would remain a valuable procedural
* Although the Court is not persuaded that the authority
Plaintiffs cite from the Federal Aviation Act (see D.E. 101 (Pls.’
Mem. in Opp’n to Mot.) at 8-10) is applicabie to the issue of
whether Newvac is a “contracting carrier” under the Montreal
Convention, the citations were at least helpful in illustrating the
role that “indirect air carriers,” which engage in conduct not
unlike that of Newvac herein, play in relation to passengers and
carriers. See, e.g., Romualdo P. Eclavea, Annotation, Regulation
of air travel clubs, charter flights, and the like, by the Civil
Aeronautics Board, 27 A.L.R. Fed. 154 (1976) (outlining federal
decisions interpreting pertinent statutory and regulatory provi-
sions).
App. 39
tool for the dismissal of litigation with tenuous rela-
tionships to the United States. See, e.g., D.E. 113
(Defs.’ Reply) at 9-16.
The Ninth Circuit Court of Appeals held in
Hosaka that “Article 28(1)'’ of the Warsaw Conven-
tion overrides the discretionary power of the federal
courts to dismiss an action for forum non conveniens.”
Hosaka, 305 F.3d at 993, 1004. In so holding, the
Ninth Circuit rejected the decision of the Fifth Circuit
Court of Appeals, the only other United States appel-
late court to have considered the issue, that Article
28(1) of the Warsaw Convention did not prevent a
district court from considering and applying the
doctrine of forum non conveniens. See In re Air Crash
Disaster Near New Orleans, La., on July 9, 1982, 821
F.2d 1147 (5th Cir. 1987) (en banc), vacated on other
grounds sub nom. Pan American World Airways, Inc.
'* Article 28 provided:
(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 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 «f procedure shall be governed by the
law of the cour. to which the case is submitted.
Warsaw Convention, art. 28.
App. 40
v. Lopez, 490 U.S. 1032 (1989), vacated in part and
aff’d in part on remand 883 F.2d 17 (5th Cir. 1989).
In reaching its conclusion, the Ninth Circuit in
Hosaka found the text of Article 28 to be ambiguous,
but that the treaty’s purposes, its drafting history, as
well as evidence of the parties’ post-ratification
understanding and the treatment of the issue in other
treaties and by other courts, supported its decision.
See Hosaka, 305 F.3d at 1003-04. However, the War-
saw Convention was negotiated at a time when the
doctrine of forum non conveniens, as it exists today,
was not even recognized by United States courts. /d.
at 999, n.13, 1002-08; Piper Aircraft Co. v. Reyno, 454
U.S. 235, 248 n.13 (1981). Further, the Ninth Circuit
acknowledged in Hosaka that the Montreal Conven-
tion is an entirely new treaty and that Article 33,
although similar to Article 28, has its own distinct
drafting history shedding no light on the intention of
the drafters of the Warsaw Convention respecting the
availability of forum non conventens in a case arising
14
The only other published decision from a United States
court addressing the availability of forum non conveniens in
Warsaw Convention cases is In re Air Crash Off Long Island,
N.Y., on July 17, 1996, 65 F. Supp. 2d 207 (S.D.N.Y. 1999). In
that case, the district court held that “[f Jorum non conveniens is
a procedural tool available to U.S. courts and thus squarely falls
within the literal language of [Warsaw Convention] Article
28(2).” Id. at 214. On the other hand, in Milor S.R.L. v. British
Airways, PLC, [1996] Q.B. 702 (Eng. C.A.), the Court of Appeal
of England concluded that Article 28 of the Warsaw Convention
precluded application of the forum non conveniens doctrine in
Convention cases.
App. 41
thereunder. See Hosaka, 305 F.3d at 999-1001. Thus,
the Ninth Circuit made clear in Hosaka that it was
not opining on the availability of forum non conven
tens dismissals under the then unratified Montreal
Convention: “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.” Jd. at 1001 n.17.
For these reasons, Hosaka has limited preceden-
tial value on the ultimate issue of the availability of
tion. Accordingly, this Court is left with the duty to
resolve — apparently as a matter of first impression —
whether the doctrine of forum non conveniens can be
considered in a case arising under the Montreal Con-
vention. To do so, the Court again resorts to the
flexible principles applicable to treaty interpretation,
examining first the text of the treaty and the histori-
cal context in which it was drafted, the purpose of the
treaty, its drafting history, and the post-ratification
understanding of the Convention States. See Floyd,
499 U.S. at 534-35; Tseng, 525 U.S. at 167. The Court
also considers the United States’ Statement of Inter-
est filed in this action; “[aJlthough not conclusive, the
meaning attributed to treaty provisions by the
Government agencies charged with their negotiation
and enforcement is entitled to great weight.” Avagli-
ano, 457 U.S. at 184-85; accord Sanchez-Llamas ov.
Oregon, 126 S. Ct. 2669, 2685 (2006). In the final
analysis, however, it is the Court’s responsibility “to
App. 42
give the specific words of the treaty a meaning consis-
tent with the shared expectations of the contracting
parties.” Tseng, 525 U.S. at 167 (quoting Saks, 470
U.S. at 399).
a. Text of the Treaty
Article 33 (“Jurisdiction”) provides that:
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 men-
tioned 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 agree-
ment, 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 which it has
a commercial agreement.
App. 43
For the purposes of paragraph 2,
(a) “commercial agreement” means an
agreement, other than an agency agree-
ment, made between carriers and relat-
ing 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 passen-
ger 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.
Montreal Convention, art. 33.
Like Article 28 of the Warsaw Convention, the
text is silent respecting the forum non conveniens
doctrine, but it expressly provides that questions of
procedure shall be governed by the law of the forum.
However, unlike the Hosaka Court, this court finds
the above-quoted language to be unambiguous and
dispositive: since the doctrine of forum non conven-
lens was firmly entrenched in the procedural law of
the United States by the time the Montreal Conven-
tion was drafted, the text by implication clearly
permits the application of the doctrine in domestic
litigation.
This construction, moreover, comports with the
rules commonly used by courts to construe treaty
provisions. It is consistent with the international law
App. 44
principle endorsed by the Supreme Court of the
United States, that “absent a clear and express state-
ment to the contrary, the procedural rules of the
forum State govern the implementation of the treaty
in that State.” Breard v. Greene, 523 U.S. 371, 375
(1998) (per curiam); accord Sanchez-Llamas, 126
S. Ct. at 2682-83; Volkswagenwerk Aktiengesellschaft
v. Schlunk, 486 U.S. 694, 700 (1988): Société Nation-
ale Industrielle Aérospatiale v. U.S. Dist. Court for
Southern Dist. of Towa, 482 U.S. 522, 539 (1987); see
also Trans World Airlines, Inc. v. Franklin Mint
Corp., 466 U.S. 248, 262 (1984) (Stevens, J., dissent-
ing) (noting that “|gjiven the gulfs of language, cul-
ture, and values that separate nations, it is essential
in international agreements for the parties to make
explicit their common ground on the most rudimen-
tary of matters”). It harmonizes and gives effect to
every word of Article 33 by construing the language
“brought, at the option of the plaintiff” to mean the
place where the plaintiff may initiate the action,
subject to the application of the procedural dectrine of
forum non conveniens as provided for in subsection
(2)."°
It also avoids the need to graft language onto
lf ’ > ’ ‘ ‘ s , € ‘ »r7
See In re Commissioner’s Subpoenas, 325 F.3d 1287
, 1296
(llth Cir. 2003) (noting that “in treaty interpretation as in
statutory interpretation, particular previsions may not be
divorced from the document as a whole and read in insolation”);
Itel Containers Int’l v. Huddleston, 507 U.S. 60, 65-66 (1993)
(rejecting an interpretation of an international convention that
would render some of its language superfluous); see also
Maximov v. U.S., 373 U.S. 49, 54 (1963) (stating that “it is par-
ticularly inappropriate for a court to sanction a deviation from
(Continued on following page)
App. 45
subsection (2) so that it would read: “Questions of
procedure, other than forum non conveniens, shall be
governed by the law of the court seised of the case”
a result the law plainly does not permit.”
Notwithstanding the conclusion that the text un-
ambiguously permits application of the forum non
conventens doctrine in Montreal Convention cases, it
remains the Court’s responsibility to interpret Article
33 consistently with the shared expectations of
the contracting parties. Tkeng, 525 U.S. at 167.
Accordingly, the Court considers below whether the
the clear import of a solemn treaty between this Nation and a
foreign sovereign, when ... there is no indication that applica-
tion of the words of the treaty according to their obvious mean-
ing effects a result inconsistent with the intent or expectations
of its signatories”).
'* As early as 1821, the Supreme Court recognized that
(T)his Court does not possess any treaty-making power.
That power belongs by the constitution to another de-
partment of the Government; and to alter, amend, or
add to any treaty, by inserting any clause, whether
small or great, important or trivial, would be on our
part an usurpation of power, and not an exercise of
judicial functions. It would be to make, and not to con-
strue a treaty. Neither can this Court supply a casus
omissus in a treaty, any more than in a law. We are to
find out the intention of the parties by just rules of
interpretation applied to the subject matter; and
having found that, our duty is to follow it as far as it
goes, and to stop where that stops — whatever may
be the imperfections or difficulties which it leaves
behind.
The Amiable Isabella, 19 U.S. 1, 71 (1821); accord Sanchez-
Llamas, 126 S. Ct. at 2679.
App. 46
historical context in which the Convention was
drafted, the purpose, the drafting history, the post-
ratification understanding of the contracting parties,
if any, and the meaning accorded to Article 33 by the
agencies responsible for its negotiation and enforce-
ment, support the conclusion that forum non con-
veniens may be employed in Montreal Convention
cases pursuant to Article 33(4). Id.; Floyd, 499 U.S. at
534-35; Sanchez-Llamas, 126 S. Ct. at 2685.
b. Historical Context
In reaching the conclusicn that the plain lan-
guage of Article 33 permits the application of forum
non conveniens in Montreal Convention cases, the
undersigned acknowledges that subsection (1) and
subsection (4) of Article 33 are nearly identical to
Article 28(1),(2) of the Warsaw Convention, and that
the Ninth Circuit Court of Appeals in Hosaka, as well
as Lord Phillips in Milor S.R.L. v. British Airways,
PLC, [1996] Q.B. 702 (Eng. C.A.), concluded that the
sentence “[q]uestions of procedure shall be governed
by the law of the court to which the case is submitted”
in Article 28(2) did not authorize the application of
forum non conveniens in Warsaw Convention cases.
However, the authors of those opinions were seeking
to ascertain the shared expectations of the signatories
to a treaty that was drafted in 1925 and 1929, at a
time when the forum non conveniens doctrine was
rarely utilized, its contours were undeveloped and its
“procedural” character was unsettled. See Hosaka,
305 F.3d at 999, n.13, 1002-03; accord Milor S.R.L. v.
App. 47
British Airways, PLC, [1996] Q.B. 702 (Eng. C.A.);
Saks, 470 U.S. at 401." Therefore, there is little,
if any evidence, reflecting that the drafters of the
Warsaw Convention then understood that the inclu-
sion of the language “[q]uestions of procedure shall be
governed by the law of the court seised of the case”
encompassed forum non conveniens.
The same conclusion cannot be reached with
respect to the Montreal Convention; federal courts in
the United States faced with cases arising out of
international transactions and mass torts, among
others, have utilizea tne doctrine routinely since
1947 to assess whether litigation should occur in a
more convenient foreign forum, including in Warsaw
As of 1929, when the Warsaw Convention was negotiated,
the term “forum non conveniens” was not even in use in courts in
the United States, although some American courts had recog-
nized the discretion of trial courts to refuse jurisdiction in
certain types of cases. See Edward L. Barrett, Jr., The Doctrine
of Forum Non Conveniens, 35 Cal. L. Rev. 380, 386-89 (1947):
Alexander Reus, Judicial Discretion: A Comparative View of the
Doctrine of Forum Neon Conveniens in the United States, the
United Kingdom, and Germany, 16 Loy. L.A. Int'l & Comp. L.J.
455, 460-464. By 1941, Justice Frankfurter referred to the “fa-
miliar doctrine of forum non conveniens’” as a manifestation of a
civilized judicial system which is “firmly imbedded in our law.”
Baltimore & O.R. Co. v. Kepner, 314 U.S. 44, 55-56 (1941)
(Frankfurter, J., dissenting). Even then, however, the parame-
ters of the doctrine remained unclear until 1947, when the
United States Supreme Court decided Gulf Oil Corp. v. Gilbert,
330 U.S. 501 (1947), and Koster v. Lumbermens Mut. Cas. Co.,
330 U.S. 518 (1947). See Reyno, 454 U.S. at 248 n.13.
App. 48
Convention cases.” The historical context of the
Montreal Convention thus reflects that, by the time it
was drafted, the doctrine was widely understood to be
a procedural device frequently employed in United
States courts. See generally 14D C. Wright, A. Miller
& E. Copper [sic], Federal Practice and Procedure
§ 3828 (3d ed. 2007); American Dredging Co. v. Miller,
510 U.S. 443, 453 (1994) (noting that forum non
conveniens is a doctrine of procedure rather than
substance). Moreover, Hosaka had not been decided
in 1999, when the final draft of the Montreal
Convention was completed. At that time, the only
United States decision that had addressed directly
the availability of forum non conventens in Warsaw
Convention cases in the United States was the Fifth
Circuit’s decision in Jn re... New Orleans, and it had
“ McLoughlin v. Commercial Atrways (Pty) Ltd., 602
F. Supp. 29 (E.D.N.Y. 1985) (denying motion); Harpalani v. Air
India, Inc., 622 F. Supp. 69 (N.D. Ill. 1985) (denying motion); Jn
re Air Crash Disaster Near New Orleans, La., on July 9, 1982,
821 F.2d 1147 (5th Cir. 1987) (en banc) (affirming district court’s
denial of motion); Galu v. Swiss Air Transport Co., Ltd., No. 86
Civ. 5551, 1987 WL 15580 (Aug. 3, 1987) (denying motion);
Robert Bosch Corp. v. Air France, 712 F. Supp. 688 (N.D. II.
1989) (denying motion); Lu v. Air China Intern. Corp., No. CV
92-1254, 1992 WI. 453646 (E.D.N-Y. Dec. 16, 1992) (unreported
case granting motion, and agreeing (id. at *1 n.1) with the Fifth
Circuit’s reasoning in New Orleans that forum non conveniens 1s
applicable to a Warsaw Convention case); Thach v. China Air-
lines, Ltd., No. 95 Civ. 8468, 1997 WL 282254 (S.D.N.Y. May 27,
1997) (denying motion); In re Air Crash Off Long Island, N. Y.,
on July 17, 1996, 65 F. Supp. 2d 207 (S.D.N.Y. 1999) (denying
motion).
App. 49
held that forum non conveniens was available,
stating:
The delegates, however, recognized that
the [Warsaw] Conven''on’s provisions would
have to be applied and adopted to a variety
of legal systems, so they provided in Article
28(2) that “[q]uestions of procedure shall be
governed by the law of the court to which the
case is submitted.”
Plaintiffs insist that article 28(1)’s lan-
guage “at the option of the plaintiff” grants
thawm tha absolut ann emnlié¢arahtl a ann orl, + +
vwaswdii waav CAnmwovils = Caaarva Baataavwl Atiw dipjtiv vO
choose the national forum in which their
claims will be litigated. We cannot agree....
The party initiating the action enjoys the
perogative [sic] of choosing between these
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. ... 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 Disaster Near New Orleans, La., on
July 9, 1982, 821 F.2d 1147, 1161-62 (5th Cir. 1987)
(internal citations and footnotes omitted).
'? The Second Circuit also had stated in Smith v. Canadian
Pacific Airways, Ltd., 452 F.2d 798 (2d Cir. 1971), that:
[I]n a Warsaw Convention case there are two levels of
judicial power that must be examined to determine
(Continued on following page)
App. 50
Viewed in this context, the undersigned cannot
agree with Plaintiffs’ argument that interpreting
Article 33 to allow for application of forum non
conveniens would be inconsistent with Article 57 of
the Montreal Convention prohibiting “reservations.”
The difficulty with this argument is that it presup-
poses that the drafters did not understand that forum
non conveniens is part of the procedural law of the
United States and that they did not anticipate that
forum non conventens would continue to be employed
in United States courts. Neither the text of Article 33
nor its historical context support this pre-supposition
for the reasons explained above, and therefore no
“reservation” is necessary for a United States court
to be able to consider the “procedura! question” of
Whether an action under the Montreal convention
should be dismissed pursuant to forum non conven-
Lens,
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 pow-
er 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
ufter jurisdiction in both senses is had that the ques-
tion of venue is reached and a determination made
regarding the appropriateness and convenience for the
parties of a particular domestic court.
Id. at 800 (footnote omitted) (emphasis added); accord Campbell
v. Air Jamaica, Ltd., 863 F.2d 1 (2d Cir. 1988); Kapar v. Kuwait
Airways Corp., 845 F.2d 1100, 1104-05 (D.C. Cir. 1988).
App. 51
The Court also is not persuaded by Plaintiffs’
argument that the drafters’ failure to address the
location of the fora to which a case could be
“transferred” indicates that they did not intend to
allow the application of forum non conveniens in
United States courts and elsewhere the doctrine is
employed. While the drafters may have aspired to
achieve uniformity and predictability in the imple-
mentation of the Montreal Convention’s liability
regime, the historical record reflects that the drafters
were tasked with harmonizing the conflicting inter-
ests of numerous countries with different legal
systems, including widely disparate procedural rules.
The Montreal Convention, like most treaties, was the
product of consensus and the absence of a provision
does not necessarily imply anything more than mere
compromise. See, e.g., Franklin Mint Corporation, 466
U.S. at 262 (Stevens, J., dissenting) (noting that
“(tlhe great object of an international agreement is to
define the common ground between sovereign nations.
Given the gulfs of language, culture, and values that
separate nations, it is essential in international
agreements for the parties to make explicit their com-
mon ground on the most rudimentary of matters”).””
” That the Montreal Convention was the product of com-
promise and consensus is ®vident from the remarks of the
Chairman. quoted at page 44, infra, in advocating the adoption
of a “consensus package” that included the language now found
in Article 33.
App. 52
c. Purpose of the Treaty
Plaintiffs also submit that Hosaka’s reasoning
respecting the primary purposes of the Warsaw Con-
vention is equally applicable to cases arising under
the Montreal Convention. See D.E. 101 (Pls.’ Mem. in
Opp’n to Mot.) at 19. In Hosaka, the Court found that
application of the forum non conveniens doctrine
would undermine the Warsaw Convention’s dual
goals of (i) uniformity, and (11) the balance that the
drafters sought to strike between the interests of air
carriers and passengers. See Hosaka, 305 F.3d at 996-
97. In reaching this conclusion, the Hosaka Court
relied on the Milor Court’s reasoning, citing with
approval the statement that Article 28 of the Warsaw
Convention is “a self-contained code” harmonizing
different national views on jurisdiction. Jd. at 997.
Plaintiff ’s argument fails to take account of the
fact that the stated purpose of the Montreai Conven-
tion was to “modernize and consolidate the Warsaw
Convention and related instruments,” and to “en-
surle] protection of the interests of consumers in in-
ternational carriage by air and the need for equitable
compensation based on the principle of restitution.”
Montreal Convention, Preamble. As such, it was in-
tended to replace the system of liability contained in
the Warsaw Convention:
' Namely, the Hague Protocol of 1955, the Guadalajara
Supplementary Convention of 1961, the Guatemala City protocol
of 1971, and the Montreal Protocols 1-4 of 1975. See Montreal
Convention, art. 55.
App. 53
The Montreal Convention is the product of
an effort by the International Civil Aviation
Organization, a specialized agency of the
United Nations, to reform the Warsaw Con-
vention so as to ‘harmonize the hodgepodge
of supplementary amendments and _ inter-
carrier agreements’ of which the Warsaw
Convention system of liability consists...
The Montreal Convention is not an amend-
ment to the Warsaw Convention. Rather, the
Montreal Convention is an entirely new
treaty that unifies and replaces the system of
liability that derives from the Warsaw
Convention....
Ehrlich v. Am. Atrlines, Inc., 360 F.3d 366, 371 n.4
(2d Cir. 2004) (internal citations omitted).” Thus,
Hosaka’s reliance on the purposes of the Warsaw
Convention to conclude that forum ron conveniens
dismissals were unavailable in United States courts
under the earlier treaty, 1s not entirely persuasive to
* As noted by President Clinton in his letter of transmittal
to the Senate:
Among other benefits, the Convention eliminates the
cap op carrier liability to accident victims; holds car-
riers strictly liable for proven damages up to 100,000
Special Drawing Rights (approximately $135,000) ... ;
provides for U.S. jurisdiction for most claims brought
on behalf of U.S. passengers; clarifies the duties and
obligations of carriers engaged in code-share opera-
tions; and, with respect to cargo, preserves all of the
significant advances achieved by Montreal Protocol
No. 4.
S. Treaty Doc. No. 106-45, 1999 WL 33292734, at 8.
App. 54
this Court which is tasked with deciding the avail-
ability of this procedural tool under the new treaty.
Indeed, at least one of the purposes of the Mon-
treal Convention, modernization, actually supports
the viability of forum non conveniens dismissals in
cases arising thereunder. As already noted, at the
time the Montreal Convention was drafted, the only
case in the United States directly addressing the
availability of forum non conveniens in cases brought
under the Warsaw Convention had found the doctrine
to be applicable and other courts had applied the
doctrine in Warsaw Convention cases without engag-
ing in treaty interpretation. See supra note 18. Also,
at least one other foreign court had employed the
doctrine in a Warsaw Convention case. See Brinker-
hoff Maritime Drilling Corp. v. PT: Airfast Servs.
Indonesia [1992] SGCA 45 (available at http://app.
supremecourt.gov.sg/default.aspx?pgID=1127 (visited
Aug. 28, 2007)). Thus, utilization of the doctrine com-
ported with modern practice at the time the Montreal
Convention was negotiated and is consistent with the
Montreal Convention’s stated goal of “modernization.”
Nonetheless, the Court accepts Plaintiffs’ asser-
tion that the drafters of the Montreal Convention,
like the drafters of the Warsaw Convention, aspired
to uniformity and predictability in the implemen-
tation of its hability scheme. These goals, however, do
not necessarily suggest that the drafters of the
Montreal Convention viewed forum non conveniens as
repugnant or incompatible with its jurisdictional
provisions. Although the delegates clearly knew that
App. 55
United States courts were applying forum non con-
ventens in Warsaw Convention cases, not a single
proposal appears in the Minutes of the Conference
or related documents precluding the application of
forum non conveniens in Montreal Convention cases.
Instead, the drafting history, explained in greater
detail below, reflects that the delegates considered
various proposals which would have expressly sanc-
tioned the use of forum non convueniens in cases
brought in the fifth a or clarified its status
rwur noar A w+3 cle he 3(4): bhowev rer
e4e4ee\sAOi sae vl wu\ 4
no consensus veil reached due mainly to the fear
that codification would be interpreted as requiring
countries unfamiliar with the doctrine to employ it.
The absence of language articulating forum non con-
ventens principles in the final document, thus,
suggests that the drafters intended to maintain the
status quo: that United States courts, as well as the
courts of other States recognizing the doctrine, would
continue to apply forum non conveniens in Montreal
Convention and other cases, while others would not.
Moreover, Hosaka, in buying into the Milor
Court’s reasoning that the Warsaw Convention was
intended to include a “self contained jurisdictional
code” with which forum non conveniens conflicted,
appears to have overlooked that in the United States
the doctrine of forum non conveniens has co-existed
with the concept of jurisdiction for many decades. In
Smith, the Second Circuit Court of Appeals explained
pelucidly the relationship between jurisdiction and
venue in the context of a Warsaw Convention case.
App. 56
See supra note 19 (citing Smith, 452 F.2d 798). Forum
non conveniens is not a jurisdictional question, but
rather a supervening question of proper venue. See
Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994).
Therefore, whether under Warsaw or Montreal, the
first issue in any case should be whether there is
treaty jurisdiction, meaning whether the case has
been brought in one of the fora described by the
applicable treaty, the second issue should be whether
there is subject matter jurisdiction under domestic
law, and the third issue should be whether venue is
proper and appropriate. See supra note 19.
The record also does not reflect that drafters of
the Montreal Convention, assuming they understood
forum non conveniens to be a jurisdictional question,
accorded the objective of formulating a “self-contained
jurisdictional code” the primacy ascribed in the
Hosaka and Milor opinions to the drafters of the
Warsaw Convention. Like the Warsaw Convention,
the predominant objectives of the Montreal Conven-
tion were the creation of a new uniform system of
liability governing the international transportation of
passengers and cargo, and the balancing of the inter-
ests of the air carriers and passengers. However,
when the Warsaw Convention was drafted the doc-
trine of forum non conveniens was undeveloped and
rarely invoked. By 1999, its contours had been
defined and it had been widely employed in United
States courts in international cases, although never
App. 5%
to the detriment of a Warsaw Convention plaintiff in
a reperted case.” In other words, the dectrine did not
pose a significant threat to uniform implementation
of the Montreal Convention’s liability regime. Hence,
there were no proposals at the Conference to exclude
it as a procedural device.
In any event, the Court simply does not perceive
how application of the doctrine, as a practical matter,
undermines uniform implementation of the Montreal
Convention or the balance it seeks to strike between
the interests of the passengers and the airiines.
Forum non conventens, as it has developed in the
United States, requires, among other factors, that the
movant, in order to upset the plaintiff's choice of
forum, demonstrate the existence of an “adequate
alternative forum” that has a paramount private and
public interest in the case. See Reyno, 454 U.S. at 255
n.22, 257-261; 14D C. Wright, A. Miller & E., Copper
lsic], Federal Practice and Procedure §$§§ 3828.3,
3828.4 (3d ed. 2007). Since treaty jurisdiction can be
established only in one of the fora described in Article
33 (see, e.g., Smith, 452 F.2d at 802-03), it is difficult
to conceive of a dismissal based on forum non con
veniens in a Montreal Convention case in a United
See supra note 18. In an unreported case, the district
court for the Eastern District of New York dismissed a case
arising under the Warsaw Convention on the basis of forum non
conveniens, agreeing with the Fifth Circuit’s reasoning in Neu
Orleans that the doctrine is applicable to a Warsaw Convention
case. See Lu v. Air China Int'l. Corp., No. CV 92-1254, 1992 WL
453646, at *1n.1(E.D.N_-Y. Dec. 16, 1992)
App. 58
States court unless the alternative forum is (i) autho-
rized to hear the case pursuant to Article 33(1) or (2),
and (11) demonstrably the more appropriate venue.
Further, a decision to dismiss in favor of one of
the fora designated by Article 33 would not appear to
upset the balance the drafters of the Montreal Con-
vention intended to strike between the interests of
the passengers and the airlines. The requirements to
invoke the fifth jurisdiction show that the drafters
concluded that plaintiffs should have the initial choice
of furum, but that the choice should be constrained to
ensure litigation in a location with a significant
connection to the defendant.’ The doctrine of forum
non conventens, as established in the United States,
is consistent with that balance by requiring that
a court defer to plaintiff's choice of forum in assess
ing whether one of the other fora would be more
For a plaintiff to invoke a Convention State as the fifth
jumsdiction: (1) there must be damage resulting from the death
or injury of a passenger, (2) the State must be the “principal and
permanent residence” of the passenger at the time of the
accident, (3) the State must be one to or from which the carrier
operates services tor the carriage of passengers by air, either on
its own aircraft or on another carmer’s aircraft pursuant to a
“commercial agreement,” and (4) the State must be one in which
the carrier conducts its business of carriage of passengers by air
from premises leased or owned by the carrier itself or by another
carrier with which it has a “commercial agreement.” Se
Montreal Convention, art. 33(2)-(3); see also generally Devendra
Pradhan, The Fifth Jurisdiction Under the Montreal Liability
Convention: Wandering American or Wandering Evervbody?, 68
J. Air L. & Com. 717 (2003) (discussing the adoption and
potential impact of the fifth jurisdiction)
App. 59
appropriate in a case arising under the Convention.
See Reyno, 454 U.S. at 255; but see id. at n.23 (noting
that although not dispositive, citizens or residents
deserve “somewhat more deference” than foreign
plaintiffs); 14D C. Wright, A. Miller & E. Cooper, Fed-
eral Practice and Procedure § 3828.2 (3d ed. 2007).
Finally, forum non conveniens encourages uniform
implementation of the liability system and consis-
tency of results because it facilitates the consolidation
of multiple lawsuits arising out of a single air
disaster in a single forum state.
d. Drafting History
Plaintiffs argue that the drafting history of Article
33 is inconclusive with respect to the applicability of
forum non conventens in Montreal Convention cases:
“The only clear and verifiable truth is that ultimately,
the Montreal Convention, like its predecessor says
nothing about the FNC doctrine.” D.E. 101 (Pls.’
Mem. in Opp'’n to Mot.) at 24. The undersigned dis-
agrees. While it is certainly true that the Montreal
Convention does not expressly refer to the doctrine of
forum non conveniens, it was a subject of extensive
discussions in connection with the inclusion and
drafting of the fifth jurisdiction that in the final
instrument appears in Article 33(2). Those discus-
sions show that no consensus could be reached for the
inclusion of express language codifying the doctrine,
but they also show no inclination on the part of the
delegates to restrict existing practices among the
App. 60
signatory States. Importantly, the Minutes of the
Conference and related documents contain not a
single proposal that would prohibit the courts of
Convention States from employing forum non con-
veniens.
The discussion of forum non conveniens began in
the Conference meetings in response to the proposal,
supported by the United States, that the convention
include a fifth jurisdiction allowing passengers or
their heirs to sue in the state where the passenger
lived. In supporting the proposal, the United States
had anticipated that the addition of the fifth juris-
diction would aid in addressing the problem of “forum
shopping” in the United States: “U.S. courts are far
more likely to dismiss lawsuits brought by non-U.S.
residents on the grounds of forum non conveniens if a
convenient homeland court is available to the plain-
tiff because of the fifth jurisdiction.” D.F. 151 (Con-
ventional Filing of the Conference Minutes and
Documents (hereinafter “Minutes” or “Documents”))”
at 108 (DCW Doc. No. 12 (“forum shopping” aspect of
paper presented by the U.S. titled “Article 27 — Fifth
Jurisdiction”)).”” The United States also had provided
The Minutes and Documents are published hb, the
International Civil Aviation Organization, Doc. 9775.
The United States advocated for the addition of the fifth
jurisdiction, noting, unter alia, that it was “a matter of funda
mental fairness;” U.S. citizens had been prevented from filing
suits in Li.S. courts in a number of Warsaw Convention cases
due to the unavailability of a fifth jurisdiction. Jd. at 104. It was
the view of the United States that passengers or heirs with
(Continued on following page)
App. 61
a position paper to the Conference for its considera-
tion in the adoption of the fifth jurisdiction explaining
the operation of the doctrine of forum non conveniens
in United States courts. /d. at 151-54 (DCW Doc. No.
27 (paper presented by U.S. titled “Two Cases Reflect-
ing United States Law on Forum Non Conveniens”)).
In the paper, the United States had explained “[tJhe
primary purpose of forum non conveniens is to allow a
court to resist impositions upon its jurisdiction and to
protect the interests of parties to the litigation by
adiudiceting the claim in the most suitabie and
convenient forum. A forum is suitable and convenient
when the entire case and all the parties come within
the jurisdiction of that forum.” Jd. at 154.
The Minutes of the Conference meetings from
May 17, 1999, reflect that the French delegate op-
posed the creation of a fifth jurisdiction because he
was concerned that its inclusion would both encour-
age forum shopping in high compensation states and
make it easier for courts applying forum non con-
ventens to dismiss foreign plaintiffs’ claims in favor of
courts located in poorer countries. See Minutes at
103-04, paras. 44-45.*° The United States delegate
claims arising under the new convention “should have the right
to bring suit in the courts of the State where the passenger
lived.” Jd. at 101
“ The French delegate’s views were endorsed by the dele-
gates from Madagascar, India, Lebanon, Saudi Arabia, Lesotho,
Cameroon, Korea, China and Gabon. /d. at 105, para. 49. More
importantly, the French delegate’s statements reflect that he
(Continued on following page)
App. 62
responded that he disagreed that inclusion of the fifth
jurisdiction would increase forum shopping since he
anticipated that the increase in the number of cases
brought in the United States due to the fifth jurisdic-
tion [i.e., by U.S. residents] would be offset by the
number of cases that would be dismissed on forum
non conveniens grounds due to the availability of a
“home court” convenient forum for a “forum shopping”
plaintiff. Jd. at 108, para. 62. He further suggested
that the French delegate’s concern that foreign plain-
tiffs would be consigned to litigation in their home
countries through the application of forum non con-
veniens was not well-founded because, under the
proposal, the fifth jurisdiction could not serve as an
alternative forum unless it was both the principal!
and permanent residence of the passenger and a loca-
tion where the carrier had a significant commercial
presence. /d. at 108-09, paras. 63-64.
On May 19, 1999, the discussions respecting the
fifth jurisdiction and forum non conveniens continued.
The Minutes reflect, among other comments on the
doctrine, that the Swedish delegate indicated that he
would welcome the inclusion of any language that
would authorize States to continue to apply forum
non conventens but would oppose any effort to impose
the doctrine on others. The Minutes show that he
commented as follows:
anticipated that forum non conveniens dismissals would remain
a possibility in some countries under the proposed jurisdiction.
App. 63
With reference to draft Article 27 [z.e., Article
33 in the final instrument], the Delegate of
Sweden recalled that reference had been
made to the possibility of provisions on
forum non conveniens and his Delegation
welcomed any such wording that would en-
able States presently applying that principle
to continue doing so. However, he advised
against any attempt to make that a standard
provision for all States. It had been proposed,
through lengthy discussions in other fora,
that it should be a standard requirement
applicable to all States, although no conclu-
sions had been reached at this point in time.
He stated that forum non conveniens was
unknown to most civil law countries and a
number of States had firm instructions on
such a position.
Id. at 144, pera. 18.
The fifth jurisdiction and forum non conventens
were also considered later that day in the “Friends of
the Chairman” Group.” In that meeting, the Chair-
man offered two ideas for further consideration in
addressing fears that there would be a tendency for
plaintiffs to favor a fifth jurisdiction “home base” as
being more favorable to them “even in circumstances
in which the critical connecting links between the
passenger, the accident and the injury might be such
that that forum could be regarded as an inconvenient
* For a listing of the Group’s members, see Minutes at 109,
para. 66.
App. 64
forum....” Jd. at 148-49, paras. 6-7. The first idea
concerned the possibility of codifying forum non
conveniens within Article 27 so that a court seized of
a case “would not be able to exercise its jurisdiction in
circumstances in which it would be inconvenient or
would create formidable difficulties, having regard to
the connecting links of the case.” Jd. The second idea
was to consider the first four bases of jurisdiction as
primary, and if a plaintiff resorted to the fifth juris-
diction, he would have to show that it would be highly
inconvenient or disadvantageous for him to resort to
the existing four jurisdictions. Id.
In the context of these discussions, the
Australian delegate proposed that Article 27 might be
made subject to a provision requiring a court to be
satisfied that it would be “manifestly unfair to permit
the matter to be heard and decided in that juris-
diction and that there existed another jurisdiction in
which the matter might properly, and with a view to
the interests of all the parties, more fairly and
conveniently heard and decided, in which case the
Court might dismiss the matter.” Jd. at 158, para. 17.
The Chairman understood the proposal to be applica-
ble to only the fifth jurisdiction: “The substance of the
proposal was that a resort to the fifth jurisdiction
would place a responsibility on the plaintiff to satisfy
the Court on two counts: that there was not another
jurisdiction in which the matter might properly,
and with a view to the interests of all the parties,
more fairly and conveniently be heard and decided;
and that it would be manifestly unfair in all the
App. 65
circumstances for the matter to be heard and decided
in that jurisdiction.” /d., para. 18. The proposal as
formulated by the Chairman was tentatively en-
dorsed by the delegates from Saudi Arabia and Cana-
da, with the Minutes reflecting that the Canadian
delegate observed that “while the doctrine of forum
non conveniens might have elaborated originally in
common law jurisdictions, it was now spreading
throughout the world and was taken into account in
modern Civil Codes, such as the new Quebec Civil
Code” and that the “doctrine was entirely compatible
with civil law systems... .” /d. at 158-59, para. 19.
The United States delegate underscored in his
response that his delegation was unalterably opposed
to any provision that would create a higher hurdle for
the application of the fifth jurisdiction than would be
applicable to the other four jurisdictions, as would be
the case if only the fifth jurisdiction was made subject
to forum non conveniens analysis. Jd. at 159, para. 21.
The United States delegate further made clear that,
regardless of the action ultimately taken by the
Conference on the issue of forum non conveniens, the
United States would continue to apply the doctrine in
any and all Convention cases in its courts. Id. The
Minutes recount his comments as follows:
Indicating that he [ze., the U.S. delegate]
was somewhat puzzled by the direction which
the debate had taken, he noted that DCW
Doc No. 27 presented by his Delegation
described the doctrine of forum non _ con-
veniens as it was currently applied in the
App. 66
Courts of the United States to the existing
four jurisdictions and as it would be applied
to a fifth, sixth, seventh or eighth juris-
diction, if such jurisdictions were created.
The Delegate of the United States noted that
the doctrine of forum non conveniens would
be applied to all five jurisdictions in his
country whether the Group prescribed that
or not. It seemed to him that that should
provide substantial comfort to those con-
cerned about judgments in his jurisdiction.
The Delegate of the United States was
concerned not only about not creating a
higher hurdle for the application of the fifth
jurisdiction than existed for the other four
jurisdictions but also about the ratifiability
of the new Convention. As has already been
noted, there were jurisdictions which did not
apply, understand or perhaps even desire
forum non conveniens. He was concerned
that, by proposing to impose such an alien
concept on such jurisdictions, it would make
it more difficult for them to accept the result.
The Delegate of the United States was also
concerned that, in attempting to codify on
paper a doctrine which already existed in his
country, the Group would do it in a way
which would alter the jurisprudence which
was already applicable in the United States
and that such an alteration would be found
to be obnoxious to the process which the
Group had to follow.
The Delegate of the United States thus
suggested that, to provide some measure of
comfort to those concerned about the level of
App. 67
judgments in his jurisdiction and perhaps
to others where forum non conveniens or
similar doctrines which perhaps did not bear
that precise name were applicable and to
avoid any concern that by having the fifth
jurisdiction, some Court would conclude that
the forum non conveniens doctrine should not
be applied, paragraph 4 of Article 27 (“Ques-
tions of procedure shall be governed by the
law of the Court seised of the case.”) should
be amended by adding the phrase “including
the doctrine of forum non conveniens or other
similar doctrines”. If any Delegate had such
a similar doctrine that had a name, it could
be included in that provision. The Delegate
of the United States hoped that with his
proposed amendment a certain degree of
comfort might be gained without, as in the
adage, throwing away the baby with the
bathwater.
Id., paras. 21-22.
Consistent with his remarks, it was also observed
by other delegates that the forum non conveniens
doctrine was relatively unknown in some European
countries (id., para. 20 (Swiss delegate’s comment in
this respect)), would be difficult to harmonize within
some countries’ legal systems (id. at 160, para. 26
(Chilean delegate’s comments respecting Chile and
several other unidentified Latin American countries)),
and in fact, in an apparent reference to Milor, that
the doctrine was inapplicable in England in cases
arising under the Warsaw Convention. /d. at 161-62,
paras. 31, 33.
App. 68
In the course of these discussions the Conference
Chairman questioned whether in the interest of
achieving predictability and uniformity, it might be
necessary to forge a common understanding of forum
non conventens. Id. at 159-60, para. 23; 162, paras.
32, 34; also 171, para. 15; 181, para. 28. The Minutes
present the following account:
To the point raised by the Delegate of the
United States that the imposition of that
alien concept — a term which he found
strange — might pose jurisdictional problems,
the Chairman emphasized that the Group
was involved in the process of seeking
uniformity. ... Recognizing, as he did, that
in some jurisdictions the concept of forum
non conveniens might not exist in a par-
ticular form, as well as that many of the
elements of the Convention relating to the
burden of proof, what was required to be
proved and the limits of liability also did not
exist in the domestic legislation of many
countries, the Chairman indicated that it
would be necessary to make adjustments to
such legislation in order to achieve uni-
formity. He therefore appealed to the Group
to search for solutions which were commonly
acceptable, even in the knowledge that they
might entail adjustments to domestic juris-
dictions.
Id. at 159-60, para. 23. The Chairman further noted
that “the Group would need to look most carefully as
to whether or not in all the circumstances it would be
achieving its purposes if it did not expressly provide
App. 69
for [forum non conveniens] in the Convention. It
would seem that if forum non conveniens was to play
a role, that would have to be clearly indicated, having
regard to the jurisprudence which might or might not
exist in some countries.” Jd. at 161-62, paras. 31-32.
Next, the Minutes reflect that the delegate from
the United Kingdom, apparently referring to the
Milor decision, indicated that “[i]t did not seem to
him that the Group would really be modernizing and
consolidating the Warsaw Convention if the Group
were to make it necessary tor the piaintiff to fight for
his existing right to bring his action at the place of
his choice and to leave a decision thereon to the
Court.” Jd. at 162, para. 33. In response:
The Chairman indicated that the last two
comments had left him in a state of some
confusion: the Delegate of the United King-
dom had stated that in his jurisdiction, it
was the option of the plaintiff to determine
which of the four jurisdictions would apply
and that the principle of forum non con-
veniens had been determined not to apply; it
had also been indicated that it was desirable
to add a fifth jurisdiction and to circumscribe
its application so as to ensure that the
mischief that was perceived by many to exist
in relation to that jurisdiction might indeed
be fenced in. Averring that the Group could
not have it both ways, he considered that
if the Group did recognize that it gave rise
to such mischief, then either it would de-
termine that the fifth jurisdiction had its
App. 70
peculiar problems and that it therefore
might be desirable to put fences in appro-
priate places to deal with those problems, or
it would recognize that all of the jurisdictions
would be subject to a forum non conveniens
rule and, to that extent, would modify even
the existing Convention rules. If, as indi-
cated by the Observer from the IUAI, there
were no cases in the United States in which
the principle of forum non conveniens had
been applied to Convention cases, then it
would indicate the importance of dealing
with that as an issue, certainly in relation to
the fifth jurisdiction. If it were to be dealt
with in relation to the other jurisdictions,
then it would have to be done on the basis
that the rules were being changed or
clarified so that there would be uniformity in
the application of the rules across the whole
spectrum of jurisdictions. The issue which
the Group would have to decide upon was
whether it was fair to circumscribe the
conditions under which the fifth jurisdiction
would be exercisable, in the knowledge that
concerns had been expressed and in the hope
that the Group would be able to deal with
the question of how to achieve uniformity
and a degree of universality in dealing with
the issue. The suggestion had been made
that perhaps it could be dealt with under
paragraph 4 of Article 27, in which questions
of procedure were governed by the Court
seised of the case, and that that could be
elaborated upon in dealing with the intro-
duction of the basic parameters of forum non
App. 71
conveniens. However, if, in hght of what had
just been said, it were dealt with in para
graph 4, which was of general application to
all of the provisions contained in Article 27,
then it would apply to all jurisdictions
ld., para. 34
The Minutes show that the delegate of Singapore
next remarked that:
[OjJne possible, logical] interpretation of
paragraph 1 of Article 27 would be that the
plaintiff had the option of bringing his action
for damages in one of the four jurisdictions
indicated. It was up to him to make the
choice. The rules in that chosen jurisdiction
would accordingly apply to him. He observed
that the doctrine of forum non conventens
was a common law doctrine which would
apply in all cases unless there were a statu-
tory provision against it. Thus all that the
expression “at the option of the plaintiff”
meant was that it was for the plaintiff to
decide in which jumsdiction to bring his
action. Even if he did not succeed in having
his case heard in the first jurisdiction so
chosen, nothing would prevent him from
bringing his action in one of the other juris
dictions. Thus even if that expression were
retained, the action would be initiated and
the preliminary question of whether the
jurisdiction chosen by the plaintiff was the
most appropriate forum would be overcome
The case would then proceed
ld. at 162-63, para. 36
App. 72
The Group returned to the discussion of Article
27 and the “fifth jurisdiction” during May 20-21,
1999, considering proposed language specifying that a
court could decline jurisdiction in certain circum-
stances where a plaintiff filed her action in the fifth
jurisdiction. /d. at 167, para. 1; 170-71, paras. 13-17;
Documents at 491 (DCW-FCG No. 1, “Draft Consen-
sus Package”), art. 27(4).~ Upon inquiry from the
Swiss delegate on whether the language under con-
sideration contained the same elements as when one
spoke about forum non conveniens, the Minutes
reflect that the Chairman explained:
[T]he concept of forum non conveniens Was a
concept which allowed the court to make a
determination that it was inappropriate for a
matter to be brought in a certain forum,
having regard to a variety of considerations
Che lanvuayve under
j Wuestions ol proced ire shall be
law of the Court seised of the cast
decline to exercise jurisdiction on the
additional jurisdiction set out in paragray
Article lt.e., the fifth jurisdictior
a) that having regard t
the accident and the issues t
would plac » onerous a burder
for the case to be heard and d
jurisdiction
b there exists
App. 73
The considerations which were outlined in
Article 27 were indicative of those which a
court could properly take into account. Sub-
paragraph b) of paragraph 4 addressed also
the need to highlight the fact that it was not
enough to say that it was an inconvenient
forum; it was necessary to also show that
there was access to another forum which was
more convenient. The Chairman was not
certain that in some jurisdictions, apart from
indicating that a forum was not convenient,
a court would in fact go further and indicate
where a more convenient forum could be
found. Recognizing, therefore, that the Con-
vention itself established other bases for
jurisdiction, it then became necessary to
examine the other bases in order to deter-
mine whether or not there was another
convenient forum. The Chairman therefore
regarded paragraph 4b) of Article 27 as being
appropriate because the Convention deline-
ated the forum. It was correct that the
provision covered more than the forum non
conveniens mentioned in Article 28, para-
graph 4. The fact remained, however, that
different jurisdictions applied, with different
rules in the application of forum non con
veniens. What the Conference was attempt-
ing to do was provide a Convention rule.
Minutes at 174, para. 28
The delegate of the United States voiced his Oppo-
sition to the draft forum non conveniens provision,
again, because it lirmited the fifth jurisdiction in a
App. 74
manner not applicable to the other four jurisdictions;
in his view the provision would be counter-productive
to the notion that the fifth jurisdiction would help
minimize “forum shopping,” as he had suggested in
initially supporting its addition. Jd. at 180, para. 24.
Thus, the delegate from the United States suggested
that the provision should be clarified to state that it
was not intended “to limit the ability of courts, in
their discretion, applying the law of the court seised
of the case to dismiss cases that more properly
belonged in one of the other jurisdictions.” Jd. The
Chairman requested the United States delegate to
provide his proposal in writing. /d., para. 25. The
Swedish delegate expressed support for the clarifica-
tion proposed by the United States delegate because,
in conjunction with the language that “questions of
procedure shall be governed by the law of the court
seised of the case,” the clarification would be consis-
tent with an interpretation that States that currently
applied forum non conventens could continue to do so,
while not making it mandatory for States that did not
apply the doctrine to insert it into their national laws,
thus presenting problems of ratifiability. Jd. at 181,
para. 27; see also para. 29 (European Community
Observer echoing Swedish delegate’s comments, not-
ing that forum non conveniens was “foreign to the
legal system in a large number of courts” and that
“tijf it was to go in, it would have to do so in a very
careful manner, perhaps in the way that had been
suggested”).
App. 75
The Swiss delegate then summarized his under-
standing of the forum non conveniens doctrine, noting
that it is a matter of procedural, not substantive law.
Id. at 181-82, para. 30. He also observed that the
doctrine had been said to apply differently in differ-
ent legal systems, and that it was unknown in his
country, where a court had to take every case in
which there was jurisdiction. Jd. Thus, the Swiss
delegate proposed maintaining the language of
Article 28(2) of the Warsaw Convention — “[q]uestions
of procedure shall be governed by the law of the Court
seised of the case” — and not the additional language
under consideration that was intended to apply only
to cases brought in the fifth jurisdiction. Jd., paras.
30, 34. The Swiss delegate was of the view that
the additional language would not enhance the Con-
ference’s efforts to unify the law. /d., para. 32.
Specifically, he noted that the mandatory language of
Article 27(4) (z.e., “questions of procedure shall be
governed by the law of the court seised of the case”)
allowed a court to examine the forum non conveniens
issue, whether the parties argued it or not, in those
jurisdictions in which the doctrine was observed,
while the proposed additional language would intro-
duce the concept, albeit as a discretionary tool, even
in jurisdictions like Switzerland that did not apply
the doctrine. /d., paras. 30-33. Citing the uncertain
treatment that the proposed language would receive
in States where the doctrine was not part of the
local iaw, the Swiss delegate suggested that “[t]he
Conference should not try to unify one special ele-
ment of procedure by adding an unclear rule in the
App. 76
Convention.” Id., paras. 33, 34. Thus, the Swiss
delegate was of the opinion that the wording of
Article 28(2) of the Warsaw Convention should be
maintained and that the additional proposed lan-
guage should be deleted. Jd., para. 34.”
The Minutes reflect that by the conclusion of the
Group’s meetings, the Chairman had come to believe
that if the treaty expressly allowed for the application
of forum non conveniens by those States employing
the doctrine, its inclusion would not undermine the
delegates’ efforts to unify and codify the hability
regime of the Montreal Convention. They contain the
following account of the Chairman’s closing comments
respecting forum non conventens:
In relation to what was contained in para-
graph 4 of Article 27 in dealing with the
question of forum non conveniens, there nad
been a rather intensive discussion as to the
place it could occupy, having regard to the
different jurisprudential bases of the civil
law and common law systems in particular,
and that forum non conveniens was a foreign
concept in some jurisdictions. Indeed, there
was the view that in those countries which
did not recognize the concept there would be
“°° Whether as a result of this Swiss delegate’s suggesticn, or
for other reasons not reflected in the Minutes, the final instru-
ment maintains the language of Article 28(2) of the Warsaw
Convention, and not the additional language then under consid-
eration. Compare Warsaw Convention, art. 28(2), with Montreal
Convention, art. 33(4).
App. 77
problems of ratification. Without prejudice to
the legitimacy of the questions as to whether
or not an injustice could be brought about by
persons who would seek to resort to an in-
convenient jurisdiction and in the search for
uniformity and codification of law, the Charr-
man indicated that the suggestion made by
the Representative of the United States, to
indicate that it would be enough to indicate
that nothing in this article is intended to
limit the ability of the court seised of the case
to dismiss cases which could more properly
belong to another of the jurisdictions stated
in the Convention, would in fact preserve the
right of those States which had the forum non
conveniens principle and in no way derogated
from those who did not have it. It would leave
the door open to the latter to think tn the
future as to whether tt may well be appropri-
ate to change their own law if they so wished.
Id. at 183-84, para. 38 (emphasis added). According to
the Minutes, this was the last time the “Friends of
the Chairman Group” met; the Conference then pro-
ceeded with meetings of the “Commission of the
Whole” and “Plenary” meetings. Jd. at iv-vii (Table of
Contents).
Thereafter, in his report to the Commission on
Friday, May 21, 1999, the Chairman described the
status of the negotiations regarding the codification
of forum non conveniens in Article 27 as ongoing.
According to the record of proceedings, he reported:
App. 78
There had also been intense discussion on the
question of forum non conveniens; i.e. wheth-
er or not in relation to the jurisdiction pro-
vided by the Convention it might be possible
to find any appropriate language which
would assist in the elimination of the prac-
tice of “forum shopping”, whereby people
would go to what they considered to be the
jurisdiction in which they would be able to
get the best result. This matter had arisen
primarily in articulation of the fifth jurisdic-
tion, although it might well be appropriate to
other jurisdictions. Suggestions made in this
connection would have sought to require the
court to determine whether or not it was a
convenient jurisdiction. Those discusstons had
remained somewhat inconclusive, although
the Chairman was encouraged by the fact
that the Conference had reached a stage of its
discussions where specific suggestions for
addressing specific problems were now being
made. Therefore, to the extent that delega-
tions had problems, it was expected that they
would make specific proposals to resolve
those problems rather than simply assert
that the problems existed.
Id. at 187, para. 9 (emphasis added). The Chairman
indicated that consultations would continue bilater-
ally and across delegations during the weekend, and
that he expected that a revised draft of the language
under consideration would be available on Monday,
May 24, 1999. Id., para. 10. However, the drafts
circulated during this time reflect that all language
related to the forum non conveniens principle had
App. 79
been deleted from consideration by May 24, 1999. See
Documents at 495-502 (Revisions to DCW-FCG No. 1,
“Draft Consensus Package”), art. 27.
Late on Tuesday, May 25, 1999, the Chairman
presented the consensus package that included Artic-
le 27; it did not contain forum non conventens lan-
guage. See Minutes at 199, para. 1; Documents at 271
(DCW No. 50, “Consensus Package”), art. 27." In
31
Article 27 of the consensus package provided:
i. An action for damages must be brougnt, 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 prem-
ises leased or owned by the carrier itself or by another
carrier with which it has a commercial agreement.
3. For the purposes of paragraph 2,
{a) “commercial agreement” means an agree-
ment, other than an agency agreement, made
between carriers and relating to the provision of
their joint services for carriage of passengers by
alr;
{Continued on following page)
App. 80
advocating approval of the package as a whole, “[t]he
Chairman reiterated that the consensus package was
to be seen in the context of the Group’s having ex-
hausted all possible means of arriving at consensus.
It had done so on the basis of the widest possible
consultations, of taking into account the concerns of
all, of recognizing that no Delegation would find it an
ideal solution to all its States’ problems.” Documents
at 205, para. 17. The Chairman further noted that:
While it was not possible to solve the prob-
lems of the world in one Conference, the
Conference could make a beginning, an im-
portant step forward which would lead to
something which would be a significant
advance on that which the Conference had.
The Conference could do so in recognition of
the fact that the consequences of a failure to
make a beginning would be far more disas-
trous that [sic] not accepting a package of
this kind. Recalling that he had presented
the package as being indivisible, the
Chairman indicated that it was because he
firmly believed that the Conference had a
unique opportunity, a unique challenge, to
(b) “principal and permanent residence” means
the one fixed and permanent abode of the pas-
senger at the time of the accident. The nation-
ality of the passenger may be considered as a
factor, but 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.
App. 81
lay better foundations for the liability régime
in respect of the carriage of passengers,
baggage and cargo, and that if it allowed
that opportunity to pass, the consequences
would be far worse than accepting a package
in this form. The Chairman thus commended
the consensus package of the Conference for
its acceptance as a whole. He implored that
it be accepted as all possible means had been
exhausted. He affirmed that history would
not forgive the Conference if it lost this
opportunity.
Id.
The consensus package was adopted (id. at 206,
para. 19), and the final instrument, which was
ratified by the United States Senate on July 31, 2003,
contains substantially the same language from the
package,” renumbered as Article 33.
What the preceding drafting history shows is
that no State advanced a proposal which if adopted
would have precluded the application of forum non
conveniens to Montreal Convention cases in the
courts of States adhering to the doctrine. Instead, it
shows that the doctrine was extensively discussed,
“ The only difference between Article 27 in the consensus
package and Article 33 in the final instrument is the deletion of
the following italicized language in the final instrument: The
nationality of the passenger may be considered as a factor, but
shall not be the determining factor in this regard. Compare
supra note 31, with Montreal Convention, art. 33(3)(b), quoted
supra p. 16-17.
App. 82
mainly with respect to the creation of the fifth
jurisdiction, that proposals addressing the doctrine
were advanced, including proposals which would have
made forum non conventens applicable only to the
fifth jurisdiction or clarified its applicability to all
jurisdictions, and that the United States actively and
persistently opposed the inclusion of any forum non
conveniens language except to clarify its general
applicability, all while making it abundantly clear
that United States courts would continue to employ
the doctrine in Montreal Convention and other inter-
national cases. In the end, the consensus among the
delegates was to omit any language respecting the
applicability of forum non conveniens to avoid impos-
ing the doctrine on States that do not employ it and
distorting its application in States where it is com-
monly employed. In other words, the delegates deter-
mined to maintain the status quo: signatory countries
employing the doctrine would continue to do so pursu-
ant to subsection (2): “Questions of procedure shall be
governed by the law of the court seised of the case,”
and signatory countries that do not employ the doc-
trine would not be required to adjust their legal
systems to accommodate the doctrine in cases arising
under the Convention.
d.{sic] Post-Ratification Understanding
Plaintiffs concede the absence of any post-
ratification history reflecting the signatories under-
standing whether forum non conveniens would contin-
ue to be applicable in Montreal Convention cases
App. 83
brought in States adhering to the doctrine. See D.E.
101 (Pls. Mem. in Opp’n to Mot.) at 24. Nonetheless,
Plaintiffs argue on the basis of representations made
by the Executive Branch to the United States Senate
to secure ratification of the Montreal Convention that
“(1) preserving the right of U.S. Courts to apply
[forum non conveniens]| was not a central concern, and
(2) the jurisdictional provisions of the Montreal
Convention give plaintiffs a right to pursue their
claims in the enumerated forums.” Id. at 24-25
(emphasis in ori
wehbe =
In support of their first point, Plaintiffs quote
testimony of John R. Byerly, Deputy Assistant Secre-
tary for Transportation Affairs, to the Senate Foreign
Relations Committee, in which he stated that the
United States delegation achieved “all of America’s
core objectives” and that “[tlhe Convention contains
all of the key provisions sought by the United States
at the outset of the negotiations.” /d. at 25 (citing
http//www.state.gov/e/eeb/ris/rm/2003/21869.htm). These
statements do not show that the United States relin-
quished forum non conveniens in the negotiations for
the Convention. Moreover, Plaintiffs omit to acknowl-
edge that Mr. Byerly also stated that “prior judicial
interpretations under [the Warsaw Convention] are
expected to have continuing validity.” At the time of
these remarks, the Ninth Circuit’s Hosaka decision
stood in opposition to the Fifth Circuit’s decision in
In re... New Orleans, and the Southern District of
New York’s decision in /[n re... Long Island. There-
fore, Byerly’s remarks do not demonstrate that the
App. 84
United States or any other signatory State understood
at the time of ratification that forum non conveniens
was precluded in Montreal Convention cases.
As to the second point, Plaintiffs quote the fol-
lowing testimony of Jeffrey Shane, Under Secretary
for Policy in the U.S. Department of Transportation:
A second major passenger benefit provided
by the Montreal Convention is the right of
claimants to bring action in a forum related
to the passenger’s principal and permanent
residence. This provision will ensure in the
vast majority of cases that an injured Ameri-
can passenger or a claimant on behalf of a
deceased American passenger will be able to
bring action in a U.S. court.
Id. at 25 (quoting S. Exec. Rpt. 108-8, at 13) (empha-
sis added by Plaintiffs). Plaintiffs also point to
Deputy Secretary of State Strobe Talbott’s letter of
submittal to President Clinton:
[T)his fifth jurisdiction provision should en-
sure that nearly all U.S. Citizens and other
permanent residents of the United States
have access to U.S. Courts to pursue claims
under the convention.
Id. (quoting S. ‘Treaty Doc. No. 106-45, 1999 WL
33292734, at 15-16). According to Plaintiffs, these
statements “would have been singularly misleading if
they harbored an unstated belief that the new “right”
to file in the U.S. was qualified by the airlines’ “right”
to secure prompt dismissals on [forum non conven-
tens| grounds.” Jd. But these statements are not
App. 85
untrue or misleading. The fact is that in most cases,
United States citizens and permanent residents will
be able to maintain actions under the Montreal
Convention in United States courts because United
States citizens enjoy significant deference in their
choice of forum under the forum non conveniens
doctrine” and because, as required by Article 33(2),
the fifth jurisdiction, most airlines operate or con-
duct business in the United States either directly or
through a commercial agreement with another car-
rier
e. Position of the United States
“Although not conclusive, the meaning attributed
to treaty provisions by the Government agencies
charged with their negotiation and enforcement is
entitled to great weight.” See Avagliano, 457 U.S. at
184-85; accord Sanchez-Llamas, 126 S. Ct. at 2685.
That understanding is contained in the Statement of
Interest filed in this case pursuant to 28 U.S.C. § 517,
by attorneys from the United States Department of
Justice, with attorneys from the Department of State
and the Department of Transportation appearing as
of counsel. See D.E. 116 (Statement of Interest of the
United States).
The Statement of Interest makes clear that the
United States did not relinquish the ability of its
* See Reyno, 454 U.S. at 255; 14D C. Wright, A. Miller & E.
Cooper, Federal Practice and Procedure § 3828.2 (3d ed. 2007).
App. 86
courts to apply forum non conveniens in Montreal]
Convention cases because it and its component agen-
cies are often named in suits arising under the
Convention and because the United States has a
significant interest in avoiding forum shopping and
congestion in its courts when a foreign forum pro-
vides a more just, convenient and suitable allterna-
tive. Accordingly, the United States understands the
text of Article 33(4) to mean that the Montreal
Convention “defers to the forum’s laws on all ques-
tions of procedure and manifests an intent by
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