# Petition for Writ of Certiorari — Bapte v. West Caribbean Airways > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1817%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 560 U.S. 952 ## Text 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 ae Pe ee Si hacax ks venue acsindesasesssaxdasdetivaceioeae iil Re Ee Te Me ams Ne iiev sco insta tapsndcesdousesess iV ge YOR Ge) we ayy) 8. ly y |: > nnn vil See IE I II is oa otk n sss sa hesepsk sans ca vaseanncanaxes 1 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 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) . 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 (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 f [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1817%3A1. Public record. Not legal advice.