United States: 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:

1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.
2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft or on another carrier's aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
3. ...
4. 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 Florida. However, Martinique, France is and was also an available forum both under Article 33(1) – because Martinique was the place of destination, as well as under Article 33(2) – because Martinique was likewise the State where all the passengers had their 'principal and permanent residence' at the time of the accident. In other words, both the United States and France were very clearly available forums under Articles 33(1) and 33(2) of Montreal. Once the Plaintiffs opted to sue in the United States, however, the defendants, Newvac and Cimetier, moved for dismissal on the grounds of forum non conveniens under Article 33(4). They did so for at least two significant reasons: first, neither Newvac nor Cimetier carried insurance to cover such a tragedy, whileWest Caribbean Airways did and had voluntarily consented to subject itself to jurisdiction in Martinique; and second, because it is always far easier and more just for a domiciliary forum to determine proper and appropriate damage compensation for its domiciliaries than for a foreign court (such as a US court would be in these circumstances) to do so.

Under the well-established Supreme Court precedent in Piper Aircraft Co. v. Reyno, 454 US 235 (1981), a party seeking dismissal on forum non conveniens grounds must demonstrate: (1) that an adequate alternative forum is available; (2) that relevant public and private interests weigh in favour of dismissal, and; (3) that the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice. The Defendants in this instance further argued that, because forum non conveniens is a question of procedure, it was in fact an available procedural tool under Article 33(4) and was specifically intended by the framers of the 1999 Montreal Convention to be available as such a tool in US and other courts that employed the forum non conveniens doctrine. On the other hand, the Plaintiffs argued that the court could not defeat the plaintiffs' choice of forum, as afforded by Montreal Article 33(1), through the application of a procedural rule of domestic law and, accordingly, forum non conveniens should not be deemed to be an available tool under Montreal Article 33(4).

5 COURT DECISIONS DISMISSING ON FNC GROUNDS

In an extensive Preliminary Order that analyzed in detail the legislative history of the 1999 Montreal Convention, the US District Court (Judge Ursula Ungaro) concluded, as had the US Department of Justice in its Statement of Interest, that forum non conveniens was – and was intended by the drafters of the 1999 Montreal Convention to be – an available procedural tool under Article 33(4).Two months later, the court granted the defendants' Motion to Dismiss on the grounds of forum non conveniens, on the basis that the balance of interests favoured litigation in Martinique, and the Martinique courts were adequate and available. Judge Ungaro first determined that Martinique was a competent forum under the Montreal Convention where Plaintiffs could have originally brought suit and could still initiate their action without inconvenience or prejudice. Particularly, Judge Ungaro noted that West Caribbean Airways had conceded liability, waived jurisdictional objections, waived statute of limitations and waived damage caps under the Montreal Convention in the Martinique court. Since all of the passengers were residents of Martinique, all but one of the passengers were French citizens, none of the passengers were United States citizens or residents, and given that only damages would be at issue, all the relevant evidence would be located in Martinique and none would be located in the United States.These circumstances, plus the public interest factors weighing in favour of Martinique's superior interest in redressing injuries to its own residents, whose damages would be determined under French law, moved Judge Ungaro to find that Martinique was the more convenient forum to resolve Plaintiffs' claims, and she accordingly dismissed the case. Following Plaintiffs' appeal of this decision, the US Court of Appeals for the Eleventh Circuit affirmed the decision, and the US Supreme Court later denied Plaintiffs' petition for certiorari.

Meanwhile the Plaintiffs had brought an action before the lower court in Martinique seeking a decision from that court that it would not defer to the US District Court's forum non conveniens dismissal, and would, accordingly, neither accept nor allow the settlement of the cases in the Martinique courts. It is important to note at this point that the Plaintiffs' action in the French lower court did not necessarily seek compensation as Judge Ungaro and the US Court of Appeals had contemplated they would; rather, the plaintiffs or, rather, their counsel sought primarily to defeat French jurisdiction and thus, in fact and in effect, to deprive themselves of French jurisdiction over their cases.The grounds in support of Plaintiffs' argument were that, as the 152 plaintiffs had chosen to sue in a US court, that choice, under and in accordance with Article 33(1), must be treated for all practical purposes as inviolate and could not be defeated by a defendant's Motion to Dismiss based on forum non conveniens. Alternatively, the Plaintiffs argued that, as they had initially chosen to file suit in the United States pursuant to Article 33(1), the French court simply lacked jurisdiction.

In a lengthy and detailed decision, a three-judge lower court in Martinique rejected all of these arguments, ruling, as did Judge Ungaro, that under Article 33(4), forum non conveniens was in fact an available tool for use by and in US courts, and that the US District Court's dismissal was a proper and legitimate exercise of its authority. This ruling was subsequently affirmed by a French Cour d'Appel. But following a later appeal by the Plaintiffs to France's highest court, its Cour de Cassation, that court – failing even to cite much less discuss Judge Ungaro's decision or that of the US Court of Appeals or any aspect of the relevant travaux préparatoires of the 1999 Montreal Convention (or even the decisions of the three-judge lower court in Martinique or the Cour d'Appel affirmance of that decision) – held simply that US courts could not properly employ the doctrine of forum non conveniens under Article 33(4) in this case. The court ruled that the US court could not use a domestic rule of procedure to defeat plaintiffs' choice of a forum under Montreal Article 33(1) and, because the Plaintiffs chose the United States as their forum, that choice was inviolate, and the French courts lacked jurisdiction over the matter. Accordingly, the Court ruled that France was not an available forum, and the case must be returned to the US court where suit should once again proceed against the 'contracting carrier' – Newvac Corporation. Significantly, there was no mention by the Cour de Cassation how the case could proceed when, as was well-known to all the participants, neither Newvac nor Cimetier carried any insurance covering aviation crashes.

6 THE CONFLICT

In this posture, there was a very clear conflict between the decisions of the French High Court and those of the US District and Eleventh Circuit Court of Appeals. To be sure, and for the sake of argument, one might suggest that the results of both courts – individually considered – are not necessarily wrong nor in conflict, as the US courts were applying their law (including the forum non doctrine) while the Cour de Cassation was applying French law that does not use nor even acknowledge the forum non doctrine. But such an explanation would require two serious analytical stretches: first, that Judge Ungaro's decision and the decision of the three-judge court in Martinique be ignored in their entirety (as the Cour de Cassation apparently did); and second, and more importantly, that one must likewise ignore the fact that whatever conflict might exist is one that stems not from the interpretation only of French or US domestic law, but rather from the interpretation of an international treaty and that the failure of the Cour de Cassation to even mention – much less carefully examine – the travaux préparatoires of the 1999 Montreal Convention cannot but be viewed as an example of judicial irresponsibility. For if the Cour de Cassation had examined the travaux préparatoires,, it would surely and certainly have seen and understood that the delegates to the Montreal 1999 Convention, in adopting Article 33(4) as they did, knew and full well understood that United States courts would be using the forum non conveniens doctrine under and in accordance with that Article to do precisely what the US District Court and the US Court of Appeals had done in the West Caribbean case.

7 PLAINTIFFS' MOTION TOVACATE: SECOND ROUND

Needless to say, prompted by the Plaintiffs' repeated attempts to subvert the forum non conveniens dismissal, but this time buttressed by the decision of the French Cour de Cassation, a decision of the highest importance for the future of the forum non conveniens doctrine was now in the hands of Judge Ungaro in the United States District Court for the Southern District of Florida. In the Plaintiffs' Motion to Vacate Judge Ungaro's earlier order dismissing the case on forum non conveniens grounds, the Plaintiffs argued that extraordinary circumstances existed that warranted vacating that Order, namely: (1) that because the French high court ruled that Martinique/France is not an available forum, the threshold requirement for any forum non conveniens dismissal – that is, the availability of an adequate alternative forum – was not met; and (2) that the US court must now reopen the proceedings and go forward with the case, as otherwise the Plaintiffs would be left without a remedy at all.

In response, the Defendants argued that a party cannot purposefully defeat the availability of a foreign forum and then assert the unavailability of that forum as a basis to vacate the order dismissing the case on forum non conveniens grounds. Rather, the party must litigate in the foreign forum in good faith.The Defendants pointed out that, but for Plaintiffs' own actions seeking to deprive themselves of jurisdiction, France was and would clearly have been an available forum under Montreal Article 33 and, therefore, any harm suffered now by the Plaintiffs was self-inflicted. The defendants further pointed out that the Plaintiffs did not seek redress for their injuries in the French courts; rather, they devoted their principal resources to making France an unavailable forum, thus leaving the French court with little choice. In other words, so Defendants argued, the dismissal on forum non conveniens grounds could and should still be sustained because France could still be considered, and become, an available forum, if and should Plaintiffs themselves reverse course and agree to allow it.

The Defendants' argument found solid support in a recent decision in the well-known Air France Flight 447 disaster over the Mid-Atlantic, which also dealt with a dismissal on forum non conveniens to France. In Re Air Crash Over the Mid-Atlantic On 1 June 2009, 760 F. Supp. 2d 832 (N.D. Cal., 2010). In the Air France case, after the lawsuit was dismissed by District Court Judge Breyer on forum non conveniens grounds, the Plaintiffs, instead of pursuing their claim in good faith in the French forum, dropped all the French defendants and re-filed suit in the United States. The Plaintiffs then argued that the absence of French defendants made dismissal on forum non conveniens grounds impossible because France was now an unavailable forum. The defendants, in turn, made the exact same arguments now being made by the defendants in the West Caribbean case, namely: (1) that a party cannot purposefully defeat the availability of a foreign forum and then assert unavailability as a basis to defeat a forum non conveniens dismissal, and (2) that a party subject to a forum non conveniens dismissal order must litigate in the foreign forum in good faith and cannot contrive to defeat the foreign court's jurisdiction. Judge Breyer concurred with the defendants' arguments and, again, granted the motion to dismiss on forum non conveniens grounds.

Finding support mainly in the decisions issued in In Re Compañía Naviera Joanna S.A. v. Koninklijke BoskalisWestminster NV, 569 F.3d 189 (4th Cir. 2009) and Castillo v. Shipping Corp. of India, 606 F. Supp. 497 (S.D.N.Y. 1985), Judge Breyer found the Plaintiffs' conduct to be improper. He noted that the Plaintiffs had purposefully opted not to re-file their dismissed pleadings in France; instead, they opted to re-file the actions in the United States after having deliberately taken steps to defeat jurisdiction in France and thus circumvent the forum non conveniens dismissal order. Although (and unlike what Plaintiffs' counsel did in West Caribbean), the Plaintiffs in the Air France case did not file their actions in France, in an interesting hypothetical Judge Breyer reasoned that had the Plaintiffs gone to France and filed actions deliberately omitting the parties necessary to establish jurisdiction, the court would have been justified in not accepting them back. Further, in denying a request from the Plaintiffs to include a condition allowing them to return to the United States should the French court dismiss their actions on jurisdictional grounds, Judge Breyer stated that the Plaintiffs cannot defeat a forum non conveniens dismissal by filing complaints that a French court would not hear, and that (subject to the forum non conveniens order) they could have re-filed the actions in France without any jurisdictional barrier. This reasoning was certainly of critical importance in the circumstances faced by Judge Ungaro in the 'second round' of the West Caribbean litigation.

8 JUDGE UNGARO'S DECISION ON THE PLAINTIFFS' MOTION TO VACATE

On 16 May 2012, Judge Ungaro issued a decision denying the Plaintiffs' Motion to Vacate and making clear her sharp disagreement with the Cour de Cassation's unsupported and, indeed, unsupportable conclusion that, under the Montreal Convention, the Plaintiffs' choice of forum in the United States deprives Martinique of jurisdiction. Judge Ungaro first discussed the effect of the Cour de Cassation's decision on the United States District Court, then turned to applicable precedent in the United States, and finally addressed the Plaintiffs' claims of 'extreme and undue hardship' if their cases were not reinstated in the District Court.

Addressing the effect of the Cour de Cassation's decision on US courts, Judge Ungaro concluded simply and correctly that while the doctrine of comity might require a US court to accept a foreign court's interpretation of one of its own statutes, that doctrine could not be expanded to require the acceptance of a foreign court's interpretation of an international treaty – in this instance Article 33 of the Montreal Convention.This is especially true where, as here, the decision of the Cour de Cassation itself did not consider, much less even allude to, the comity doctrine, but instead totally ignored both the directly contrary decisions of two US federal courts as well as the clear and well-documented travaux préparatoires of Article 33.The travaux demonstrate conclusively that Article 33, as adopted, was in no way intended to deprive States that used and recognized the doctrine of forum non conveniens from applying that doctrine as a procedural tool in future Montreal Convention cases. If the Cour de Cassation wished to ignore all of this precedent, it could do so; but a US court, as Judge Ungaro so properly concluded, 'is not obligated to accept [the Cour de Cassation's] interpretation'. Nor is a US court required to 'blindly accept the jurisdictional rulings or laws of foreign jurisdictions that purport to render their forum unavailable'.

Judge Ungaro next referred to and discussed in some detail the holdings of two well-known cases, Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013 (Fla. 3d DCA 2008), and Morales v. Ford Motor Co., 313 F. Supp. 2d 672 (S.D.Tex. 2004). Both cases involved the application by foreign courts of the so-called 'blocking statutes' that preclude assertions of jurisdiction by the courts in those countries over cases that had first been filed elsewhere (i.e., in the United States).These types of statutes had been adopted in Panama andVenezuela in order to attempt to make their own courts not 'available' and thereby defeat forum non conveniens dismissals of suits brought by their nationals in US courts. In both cases, when the suits were rejected by the foreign courts and brought back by the foreign plaintiffs to be reinstated in the US courts, the US courts refused to do so and concluded that the rejection of jurisdiction by the foreign court under its blocking statute 'will not necessarily warrant reinstatement of the action' in the United States 'particularly where plaintiffs themselves have advocated against jurisdiction in the foreign forum'.

Focusing then on the obligations of plaintiffs once a US court dismisses a case on forum non grounds, Judge Ungaro specifically cited the holding by the Florida appellate court in Scotts, supra, at pp. 1017–1018, that:

Then, focusing on the obligations of foreign judiciaries, and again from the decision in Scotts, id.:

Focusing next on the intentions of plaintiffs or their counsel in bringing their suits first in US courts in the face of these blocking statutes or, similarly, in the face of a decision like that here of the Cour de Cassation, Judge Ungaro referred to the holding in Morales, supra, at p. 676 that, if after being forum non'd by a US court, plaintiffs are nonetheless allowed to return to US courts, it would amount to an: ...

Focusing finally on the Plaintiffs' argument that they will suffer 'extreme and undue hardship' (i.e., may well go without any compensation at all) should the US court not let them reinstate their cases, Judge Ungaro characterized the argument as being 'more than disingenuous – it is ridiculous'. For Judge Ungaro, by pursuing their case to the Cour de Cassation:

Marvelling at Plaintiffs' 'relentless four year campaign to subvert this court's order dismissing their case pursuant to forum non conveniens', Judge Ungaro very astutely observed that the Plaintiffs or their counsel waged this campaign with the apparent hope of 'a more financially generous forum'. Not content to be awarded damages by their own courts and in accordance with their own law, they cannot now use such 'transparent avarice' as a basis or grounds for seeking the reinstatement of their cases in a US court.To hold otherwise, Judge Ungaro concluded,would be to 'sanction disrespect . . . for the lawful order of this United States court and encourage other litigants to engage in similar conduct'.

In sum, and as applicable to the current and comparable future circumstances, if in the face of a blocking statute or a decision like that of the Cour de Cassation here, foreign plaintiffs or their counsel nevertheless first bring their suits in US courts, they do so with full knowledge and understanding that their decision to bring their suits first in the US: (1) will be viewed as a purposeful attempt to render their own courts unavailable, and (2) will not succeed in making the foreign forum unavailable under the requirements of the forum non conveniens analysis. Moreover, if they are then dismissed by the US courts on forum non conveniens grounds and their own courts will not accept the dismissal and will – as did the Cour de Cassation – reject jurisdiction, those plaintiffs will not be permitted to return to courts in the United States because there is simply no persuasive reason why, in the face of these circumstances, US courts should be forced to devote the time, energy and resources that are required to entertain and resolve their cases.

9 CONCLUSION

The importance of this conflict is plainly obvious and cannot be underestimated. There would seem to be two alternative solutions:

First Solution: The first and preferable resolution is for the Cour de Cassation's decision to in some way be revisited and revised so as to bring it into conformity with the interpretation of Montreal Article 33(4) that prevailed when the Montreal conferees adopted that provision, namely, that countries which used and applied the forum non doctrine as a procedural tool in their courts could continue to use it in future Montreal Convention cases. Given that the French Delegation to the 1999 Montreal Conference was not favourably disposed either to this interpretation or to the forum non conveniens doctrine generally, there can be no question but that they fully knew and understood that it was the US position on the issue that ultimately prevailed. In fact, the US Delegation to the Conference espoused two positions that were more or less represented as being absolutely essential in any new Convention if that Convention were to be deemed acceptable and ratifiable by the United States.

These positions were: the adoption of a new clause allowing for a 'fifth jurisdiction' that would permit passengers to bring suits in their domiciles or permanent places of residence (assuming the defendant airline did business and was subject to suit there); and, second, continuation of the ability of US courts to use and apply the doctrine of forum non conveniens so as to assure that US courts in the future were not inundated by foreign plaintiffs seeking the advantages of contingency fee arrangements and generous death/injury awards that were available in the United States but not in many foreign jurisdictions. Both of these positions were fully realized and incorporated into the text of Article 33 of the Convention as finally adopted.

Whether by a very high level diplomatic note or démarche from the US State Department to the French Foreign Ministry or an equivalent high level communication between the US Attorney General and his French Government counterpart, the French Government should be reminded of the foregoing facts and requested to take whatever action may be necessary to bring the Cour de Cassation's decision into conformity. If deemed necessary or appropriate, copies of the communication should be widely circulated within ICAO and elsewhere emphasizing that if the problem is not promptly corrected and if, as a consequence, foreigners (assisted by their US counsel) continue to flood US courts with their Montreal Convention lawsuits following future international air disasters, the US Government might in fact wish to consider if denunciation of the Convention may be appropriate.

Second Solution: The alternative, possible, but less definitive resolution is for Judge Ungaro's decision not simply to be affirmed (if appealed), but for it to become guiding precedent in and for all future Montreal Convention cases.There is little question but that, despite her decision and despite the clear legislative history of Article 33(4), other countries that share France's civil law aversion to the forum non conveniens doctrine may well follow France's example and decline to make their courts available to plaintiffs who have opted first to file their suits in a US court but, as in the West Caribbean litigation, have been forum non'd to their own or another foreign court. If, after rejection of their suits by the foreign court, they then attempt to reinstate their cases in the US court that had forum non'd them, the preferred solution would be for that court to follow the precedent established by Judge Ungaro and to decline to permit reinstatement while recommending to counsel that they return to the foreign court where, instead of opposing jurisdiction, they should plead with the court to accept jurisdiction lest their client not be compensated at all. Similarly, in the next US case involving French victims where their US counsel points to the Cour de Cassation's decision and argues that forum non cannot be granted because French courts are not available, again the preferred solution should be for the Court simply to grant a forum non dismissal, advising counsel that they should have been well aware of applicable precedent and should have known of the risks involved in first bringing their suits in the United States. In accordance with that forum non dismissal, plaintiffs' counsel can then file in the French judicial system and plead with the Court not to follow the Cour de Cassation's decision in West Caribbean but instead to accept jurisdiction – again, lest their clients not be compensated at all.

US counsel representing plaintiffs in these circumstances should be well aware of the serious risks they are courting by the flagrant forum shopping in which they are engaging. It may well be that, should the Plaintiffs in the West Caribbean case go back to the French judicial system and it once again declines to exercise jurisdiction, then the Plaintiffs' lawyers – who engineered and brought about this most unfortunate conclusion depriving their own clients of compensation by any court – may well be subject to a malpractice action by those same clients seeking much the same compensation as they would have received but for their lawyers' machinations.

^{* Allan I. Mendelsohn is a former US Deputy Assistant Secretary of State (2000–2001) who chaired the US Delegation that adopted the world's first multilateral open skies passenger and cargo agreement. He also worked on the 1963 Tokyo Convention on hijacking, on amendments to the liability provisions of theWarsaw Convention, on the 1966 Montreal Intercarrier Agreement, and on the 1968 Visby amendments to the Hague Rules. Mr Mendelsohn is a professor of International Transportation Law at the Georgetown University Law Center and practices law as of-counsel with the firm of Cozen O'Connor inWashington, D.C. He was also counsel for Newvac and Jacques Cimetier when the litigation was first in the US District Court and the US Court of Appeals. Carlos J. Ruiz-Irizarry is a professor of Aviation Law at the University of Puerto Rico School of Law and former Trial Attorney with the United States Department of Justice inWashington, D.C. He is currently a member of the Aviation Practice Group at Fiddler Gonzalez & Rodriguez, P.S.C. in San Juan, Puerto Rico. Mr Ruiz is also an FAA licensed Aircraft Technician (A&P) and holds an Aviation Maintenance Science degree from Embry Riddle Aeronautical University, a J.D. from the University of Puerto Rico School of Law, and an LL.M. from Georgetown University Law Center with a Certificate in National Security Law.}

^{Mendelsohn, Allan I. & Ruiz, Carlos J. 'US Court Rebuffs French High Court's Attack on Forum Non-conveniens Doctrine '. Air & Space Law 37, no. 4 & 5 (2012): 305–316.
© 2012 Kluwer Law International BV, The Netherlands}

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