US Court Rebuffs French High Court's Attack On Forum Non-Conveniens Doctrine

Article by Allan I. Mendelsohn & Carlos J. Ruiz* 1 INTRODUCTION

The forum non conveniens doctrine, as applied to aviation litigation under the 1999 Montreal Convention (Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999) seemed to be very seriously endangered by a decision issued by the Cour de Cassation, France's highest court, on 7 December 2011.That decision held that a United States Court could not use the doctrine of forum non conveniens under Article 33(4) of the 1999 Montreal Convention to dismiss and 'transfer' to Martinique (a French possession in the Caribbean) suits brought in the United States by the heirs of the 152 victims of the crash of a Colombian flag air carrier (West Caribbean Airways) overVenezuela in August 2005. Despite the fact that West Caribbean did no business in the United States and that the trip on which the accident occurred was between Martinique and Panama City, and thus had no relationship to the United States, the Cour de Cassation nonetheless concluded that a plaintiff's choice of one of the competent jurisdictions enumerated in Article 33 of the Convention has an 'imperative and exclusive character' such that it deprives all other competent jurisdictions of their jurisdiction to hear or rule on the plaintiffs' claims. It thus declared that because the plaintiff, and only the plaintiff, has the choice of deciding which jurisdiction will decide the dispute, that choice cannot be changed or defeated by use of an internal rule of procedure of another State – in this instance the use of the forum non conveniens doctrine by a US court. In short, because the plaintiff's choice is inviolate, French jurisdiction was simply not available.

The original case was filed in the United States District Court for the Southern District of Florida (Judge Ursula Ungaro) and was dismissed by Judge Ungaro in a lengthy and detailed decision in which she concluded that forum non conveniens was in fact an available procedural tool under Montreal Article 33(4), that the doctrine favoured litigation in Martinique where all of the 152 crash victims were citizens or permanently resided, and that the French courts in Martinique were both adequate and available. That decision was affirmed by the US Court of Appeals for the Eleventh Circuit, and certiorari was later denied by the US Supreme Court.

Plaintiffs' counsel filed their cases in the court in Martinique but argued to that court that it had no jurisdiction under Montreal Article 33. That argument was specifically rejected by a three-judge court decision in Martinique; and that three-judge court decision was subsequently affirmed by a decision of the French Cour d'Appel. But following the ruling of the Cour de Cassation, the Plaintiffs filed a motion with the US District Court asking that, pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, the Court vacate its earlier order dismissing the case. The Plaintiffs' motion was timely opposed by the Defendants on 30 March 2012. On 16 May 2012, Judge Ungaro denied the Plaintiffs' Motion to Vacate, issuing what may well become one of the most important decisions in the history of forum non conveniens as it pertains to international aviation litigation. In Re: West Caribbean Airways, (S.D.F.L. 16 May 2012).

2 DETAILED HISTORY OF THE CASE

On 16 August 2005,West Caribbean Airways, a Colombian flag carrier that did not fly to or otherwise do business in the United States, crashed over Venezuela during a charter flight returning to Martinique from Panama City, Panama. All on board the aircraft were killed.Within weeks, suit was brought on behalf of all the passenger victims in Miami, in the United States District Court for the Southern District of Florida.West Caribbean Airways and Jacques Cimetier, d/b/a Newvac Corporation, a Florida corporation, were named as defendants. Newvac was named and sued as a 'contracting carrier' under new Article 39 of the 1999 Montreal Convention, as Newvac (and its owner, Jacques Cimetier) had entered a charter contract withWest Caribbean Airways to provide the aircraft and crew to carry the Martinique passengers on the charter trip.

West Caribbean, for its part, moved to dismiss, arguing that the court had no jurisdiction over it, since it did no business in, and was not licensed to operate to or from, the United States. The court deferred ruling on that motion, mainly because Cimetier and Newvac moved to dismiss the case on the grounds of forum non conveniens.The two defendants argued that the Plaintiffs should be required to file suit in Martinique, since it was an available and adequate forum, andWest Caribbean Airways was subject to, and, indeed,would consent to jurisdiction there.

3 THE ISSUES AND THE RELEVANT TREATY PROVISIONS

The two main issues faced by the District Court were: (1) whether forum non conveniens was an available procedural tool under Article 33(4) of the 1999 Montreal Convention and, if so, (2) whether it was appropriate to dismiss the suit on this basis. Because the issue of whether forum non conveniens could be used as a procedural tool under Article 33(4) was one of first impression in any US court, defence counsel asked the court to invite the US Government to participate in the case and present its views on that critically important issue.The court did so, and the US Department of Justice submitted to the court a Statement of Interest that outlined in detail the legislative history (travaux préparatoires) of the negotiations at Montreal and concluded that forum non conveniens was clearly intended to be available to courts to use as an available procedural tool under Article 33(4). The Department of Justice later submitted an equally detailed Amicus Curiae brief to the US Court of Appeals for the 11th Circuit, reviewing again the legislative history of Article 33(4) and reiterating the same conclusion.

In relevant part for the issues at hand, Article 33 of the Montreal Convention provides as follows:

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. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft or on another carrier's aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement. ... Questions of procedure shall be governed by the law of the court seized of the case. 4 ANALYSIS

According to the foregoing text, the United States is an available forum for the Plaintiffs under Article 33(1) because Newvac, as a 'contracting carrier' under Article 39 of the Convention,was domiciled and had its principal place of business in the state of...