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). 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. 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: 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). 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. 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. 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. 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: if our courts determine that a foreign forum is available and
adequate, it is the obligation of the plaintiff to assent to
jurisdiction there and to support that court's
exercise of jurisdiction over the matter and the parties (emphasis
in original). Then, focusing on the obligations of foreign judiciaries, and
again from the decision in Scotts, id.: If the foreign country chooses to turn away its own
citizen's lawsuit for damages... and if the other . . . factors
warrant dismissal here, it is difficult to understand why Florida
courts should devote resources to the matter. 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: ... utter abrogation of the forum non conveniens doctrine
[because it affords foreign plaintiffs] the option of rendering
their home courts unavailable simply by [first]bringing suits . . .
outside of their own country [i.e., in the United States]. 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: [plaintiffs] ran the risk that this Court would not reconsider
its FNC order regardless of the consequences they would incur...
there is no question that [the Plaintiffs] advocated against
jurisdiction in Martinique and that jurisdiction would have been
proper in Martinique but for their opposition to it and preference
for the Southern District. If Martinique is unavailable, it is only
because Plaintiffs have made it so. 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. 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. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
1 INTRODUCTION
2 DETAILED HISTORY OF THE CASE
3 THE ISSUES AND THE RELEVANT TREATY PROVISIONS
4 ANALYSIS
5 COURT DECISIONS DISMISSING ON FNC GROUNDS
6 THE CONFLICT
7 PLAINTIFFS' MOTION TOVACATE: SECOND ROUND
8 JUDGE UNGARO'S DECISION ON THE PLAINTIFFS' MOTION TO
VACATE
9 CONCLUSION
© 2012 Kluwer Law International BV, The Netherlands