The U.S. Court of Appeals for the District of Columbia Circuit recently affirmed the forum non conveniens dismissal of wrongful death and product liability claims brought by personal representatives and beneficiaries of deceased passengers on Malaysia Airlines Flight MH370, which disappeared en route from Kuala Lumpur International Airport in Malaysia to Beijing, China, on March 8, 20141. Of the 227 passengers, there were 152 Chinese citizens, 38 Malaysian citizens and three U.S. citizens. All 12 crew members were Malaysian citizens. The aircraft was a Boeing 777-2H6ER, designed and manufactured at Boeing's facility in Washington state and delivered to the airline in 2002. Although extensive searches followed the aircraft's disappearance, the official investigation ultimately concluded that the aircraft likely had run out of fuel and crashed into the Southern Indian Ocean. Neither the aircraft, flight data recorder nor cockpit voice recorder were ever recovered.
No Abuse of Discretion By the District Court
The wrongful death claims had been centralized into a multidistrict litigation (MDL) before the D.C. Circuit, which affirmed the MDL court's finding that Malaysia was an adequate and available forum to hear all of the plaintiffs' claims.2 Malaysia provided a remedy to plaintiffs, airline insurance was available to cover the claims, and Boeing had agreed to the jurisdiction of the courts in Malaysia and to make all evidence available there. Additionally, 77 of the 88 decedents represented in the MDL had pending claims against the airline defendants in Malaysia.
The D.C. Circuit further concluded that the MDL court had "careful[ly] consider[ed] the foreign appellants' interests in trying these cases in the United States, and [conducted] a thoughtful balancing of the private and public interest factors with respect to those individuals specifically." The Malaysian government had led the civil investigation into the cause of the disappearance. Its report concluded that the cause of the crash was more likely human error than aircraft or system malfunction. The government had conducted numerous interviews of witnesses located in Malaysia. Given the overwhelming amount of evidence in Malaysia, the MDL court held that the private interest factors favored trial in Malaysia. Additionally, the court held that Malaysia's public interest in hearing these claims outweighed that of the U.S., even with regard to tort claims against Boeing.
The D.C. Circuit affirmed on substantially the same grounds, but singled out two specific arguments by appellants: 1) whether the district court properly afforded the foreign plaintiffs any deference to their forum choice, and 2) whether the district court erred in declining to decide the airline defendants' sovereign immunity defense before ruling on the forum non conveniens motion.
Deference to Plaintiffs' Choice of Forum
The D.C. Circuit found no reversible error in regard to the MDL court's approach to the deference afforded the foreign plaintiffs. The MDL court had afforded the greatest deference to the sole U.S. citizen and resident plaintiff who was serving as personal representative of the estate of his U.S.-citizen brother. The court concluded, however, that this plaintiff's interest in trying the claims in the U.S. could not overcome the significant evidentiary problems posed by proceeding in a U.S. court. Thus, the MDL court reasoned that the foreign plaintiffs, who were entitled to less deference, also could not succeed in overcoming these evidentiary challenges.
Sovereign Immunity Considerations
The D.C. Circuit also found no issue with the MDL court's preliminary assessment of the sovereign immunity defenses raised by the airline defendants and the court's finding that such "intractable immunity questions" could stymie Boeing's ability to implead other defendants. The MDL court was not required to decide a threshold issue like sovereign immunity before ruling on forum non conveniens.3 Rather, "it was entirely proper" for the court to recognize that serious jurisdictional questions existed and weigh sovereign immunity as a private interest factor. Nor was any undue weight given to this factor as the MDL court considered all relevant circumstances as a whole in finding that the private interest factors favored dismissal.
The D.C. Circuit's affirmance is consistent with numerous foreign airline crash cases that have been dismissed on forum non conveniens grounds despite the involvement of a U.S. manufacturer and U.S. plaintiffs and/or decedents.4 Such dismissals are more likely where, as here, the foreign country's national interest predominates the litigation.
1. See In re: Air Crash Over the Southern Indian Ocean on Mar. 8, 2014, No. 18-7193, 2020 WL 110764 (D.C. Cir. Jan. 20, 2020). The defendants included Malaysia Airlines Systems Berhad (MAS), the national airline at the time of the accident; Malaysia Airlines Berhad (MAB), the current national airline; the airlines' insurers; and Boeing, the aircraft manufacturer. Pursuant to government legislation, MAS' assets were transferred to MAB after the accident. MAB is not a successor to MAS and has not assumed MAS' liabilities for Flight MH370.
2. See In re: Air Crash Over the Southern Indian Ocean on Mar. 8, 2014, MDL No. 2712, Misc. No. 16-1184, 2018 WL 6133070 (D.D.C. Nov. 21, 2018); see also MDL Court Dismisses Malaysia Airlines Flight MH370 Cases on FNC Grounds.
3. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 432 (2007) (holding that a court may elect to grant a motion to dismiss on forum non conveniens grounds before deciding threshold issues relating to the court's subject matter jurisdiction).
4. See, e.g., Van Schijndel v. Boeing Co., 263 Fed. App'x 555 (9th Cir. 2008); Lueck v. Sundstrand Corp., 236 F.3d 1137 (9th Cir. 2001); In re Air Crash Over Mid-Atlantic on June 1, 2009, 760 F. Supp. 2d 832 (N.D. Cal. 2010); In re Air Crash Near Peixoto de Azeveda, Brazil, on Sept. 29, 2006, 574 F. Supp. 2d 272 (E.D.N.Y. 2008), aff'd, sub nom., Lleras v. ExcelAire Servs. Inc., 354 Fed. Appx. 585 (2d Cir. 2009).
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