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Silk Air Flight 185: Decision Won Denying Motion To Dismiss
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
In re AIR CRASH DISASTER NEAR
PALEMBANG, INDONESIA
ON DECEMBER 19, 1997
THIS DOCUMENT RELATES TO ALL ACTIONS
I. INTRODUCTION
This group of cases derives from the crash of SilkAir
Flight 185 on December 19, 1997. The Boeing Company, a defendant
in each case, has filed a motion to have the cases dismissed on
the ground of forum non conveniens. Having reviewed the papers filed
by the parties and determined that oral argument on this motion
is not necessary, the Court now denies the motion for the following
reasons.
II. ANALYSIS
Courts will rarely disturb the presumption in favor
of a plaintiff's chosen forum, and a defendant moving for forum
non conveniens dismissal has a substantial burden to meet. The defendant
must provide clear evidence that either (i) this forum is vexatious
or oppressive for the defendant to a degree that is out of proportion
to its convenience for the plaintiffs, or (ii) this forum is inappropriate
because of administrative or legal problems created for the Court.
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981).
A. IDENTIFICATION OF AN ALTERNATE FORUM.
Forum non conveniens analysis must begin with the
identification of an adequate alternate forum to hear the case.
Creative Technologies, Ltd. v. Aztech System PTE, Ltd., 61
F.3d 696, 701 (9th Cir. 1995). Here, Boeing offers both Indonesia
and Singapore as alternatives. Both countries recognize causes of
action for the decedents of the passengers in an air crash, and
Boeing would waive any possible jurisdictional or statute of limitations
defenses. Courts, including the Ninth Circuit in a case involving
a plane crash, have previously found both countries to be adequate
alternatives. Zipfel v. Halliburton Company, 832 F.2d 1477,
1483-84 (9th Cir. 1987). The Court therefore finds that Singapore
and Indonesia are adequate alternatives, and turns to the second
stage of the analysis.
B. WEIGHING OF PUBLIC AND PRIVATE INTERESTS.
At this stage the Court must determine whether
Boeing has succeeded in showing that the balance of public and private
factors at work in this case tips strongly in favor of dismissal.
Piper Aircraft, 454 U.S. at 257 . The Supreme Court
has identified a list of public and private interests for the Court
to consider when ruling on a motion for forum non conveniens dismissal.
The private interest factors include access to sources of proof;
the availability of compulsory process and cost of obtaining attendance
from unwilling witnesses; the possibility of viewing the site of
the accident, if appropriate; and any other relevant private interests.
The public factors include administrative difficulties created by
court congestion; the local interest in having local controversies
decided at home; the forum that is home with the law that governs
the action; the avoidance of conflict of law and application of
foreign law difficulties; and the unfairness of burdening citizens
in an unrelated forum with jury duty. See Gulf Oil Corporation
v. Gilbert, 330 U.S. 501, 508 (1947); Zipfel v. Halliburton
Company, 832 F.2d 1477, 1485 (9th Cir. 1987).
The access to evidence factor is central to Boeing's
argument in this motion. The crash occurred in Indonesia and therefore,
in Boeing's estimation, much of the physical evidence and many of
the witnesses are found there. In addition, the investigation into
the crash is being conducted by authorities in these countries.
SilkAir and its parent corporation Singapore Airlines are not amenable
to suit for these claims in the United States under restrictions
imposed by the Warsaw Convention.1
The plaintiffs dispute this claim, at least as it applies to a potential
third-party claim by Boeing against the carriers, but, for purposes
of this motion, the Court assumes that it is accurate. And damages
evidence for many of the decedents is primarily found overseas because
most of them were citizens of other countries.
It is true that the wreckage of the plane remains
overseas. The plaintiffs' theory in this case, however, is not based
on manufacturing defects or on maintenance problems particular to
this aircraft. Rather they allege that the crash was caused by a
design defect in the Boeing 737 rudder control mechanism. This defect
has already been extensively investigated by Boeing, the plaintiffs
allege, because it is allegedly the cause of other air crashes and
near crashes, including at least one crash in the United States.
Many of the witnesses and much of the tangible evidence related
to this alleged design defect theory is located in Washington State
or elsewhere in the United States. Of course, the plaintiffs will
need to establish that the alleged design defect was, in fact, the
cause of the SilkAir crash. But it is clear that a significant portion
of the evidence related to this theory of liability is to be found
at the place where the plane was designed, not the place where it
crashed.
Boeing's explanation for the SilkAir crash is that
the pilot committed suicide by deliberately flying the plane into
the ground. Several news stories have reported this theory, and
the Singapore government has recently opened an investigation into
the case, indicating that they are treating it as a potential homicide
and suicide. Boeing argues that conducting discovery and trial in
a jurisdiction apart from this investigation may unreasonably limit
the parties' access to important evidence about the crash.
Although it is clear that Boeing's ability to make
its defense may be somewhat hwnpered in these circumstances, the
level of prejudice appears far from overwhelming. Boeing emphasizes
that the authorities conducting official investigations into the
crash are in Indonesia and Singapore, but it admits that these authorities
have not issued a final report and have been unwilling to release
much of any information from the investigation. Boeing does not
indicate that they would be any more forthcoming if these lawsuits
were moved to Indonesia or Singapore. In addition, at least some
of the investigators working on the crash are from the United States
and would therefore be available to testify here. Finally,
a substantial portion of the overseas evidence appears to have only
a tenuous connection to the issues in this case, even under Boeing's
theory of the accident. It is not clear, for example, what the maintenance
records of the airplane would contribute.
Boeing insists that the Court should grant more
credence to the defendants' suicide theory than to the plaintiffs'
design flaw theory because the plaintiffs' theory lacks evidentiary
support. The Court notes the inconsistency between this position
and Boeing's insistence at two earlier discovery conferences that
materials related to liability are irrelevant to the forum non conveniens
issues. More to the point, the contention that the plaintiffs' claims
are not supportable on the evidence should be raised in a motion
for summary judgment rather than a motion to dismiss for forum non
conveniens. Given the forum non conveniens presumption in favor
of plaintiffs, the Court must assume that the plaintiffs' theory
is viable. Although Boeing has made some showing that evidence supporting
its defenses is more accessible to litigants in Singapore or Indonesia
than to litigants here, this showing, on its own, hardly amounts
to clear evidence that the burden Boeing faces is out of proportion
to the benefit afforded to the plaintiffs by litigating in this
forum.
2. Other Private Factors.
Boeing's argument does not receive any significant
support from a consideration of the other private factors at stake,
which either echo the issue of access to evidence or are not important.
Althoug the availability of compulsory process to secure evidence
in Singapore and Indonesia would presumably assist Boeing in making
its case, Boeing has not identified any specific witness who refuses
to submit to discovery here but who would be wnenable to compulsory
process overseas. Also neither party has provided any reason that
viewing the crash site itself would be important for the Court or
the jury. Thus, the Court concludes that the private factors do
not support Boeing's motion for forum non conveniens dismissal.
The public factors also fail to persuade the Court
that this case should be dismissed. At least three of the crash
victims whose relatives have brought claims were United States citizens.
Granting Boeing's motion, then, would deny United States citizens
access to United States courts for wrongful death claims brought
on behalf of United States decedents against a United States manufacturer.
Although Boeing has cited some cases in which courts found the presence
of United States plaintiffs insufficient to overcome other factors
supporting forum non conveniens dismissal, there is no doubt that
this Court must be particularly deferential to the plaintiff's choice
of forum when that plaintiff is a United States citizen. See
Piper Aircraft Company v. Reyno, 454 U.S. 235, 255-56 (1981).
The Court also notes that there is a substantial
local connection to this controversy. Boeing is among the biggest
corporations and the largest employers in Western Washington. The
737 aircraft that the plaintiffs allege was defectively designed
is a very popular plane which carries a great number of passengers
into and out of this district every day. Although the relationship
to Indonesia and Singapore is arguably stronger, the connections
to this district are significant and certainly justify the expenditure
of public resources on resolution of the dispute.
Analysis of the choice of law issues is difficult
because the Court has not yet determined the substantive law governing
these claims. Boeing argues that any air crash occurring on navigable
waters more than three miles beyond the territorial limits of the
United States is governed by the Death on the High Seas Act. The
plaintiffs respond that at least some parts of the aircraft fell
to the ground, not into navigable water, and therefore that application
of DOHSA is far from certain. They argue instead that the claims
are governed by product liability and other United States state
tort law principles. Assuming that Boeing is correct and DOHSA governs,
the Court would then conduct a second layer of choice of law analysis.
The Court looks to principles set forth in admiralty cases to identify
which jurisdiction's tort law applies to the claims. The Court must
consider (1) the place of the wrongful act; (2) the law of the flag;
(3) the allegiance or domicile of the injured party; (4) the allegiance
of the defendant; (5) the place where the contract of carriage was
made; (6) the inaccessibility of the foreign forum; (7) the law
of the forum; and (8) the carrier's base of operations. See
In re Air Crash Near Bombay, 531 F. Supp. 1175, 1189
(W.D. Wash. 1982).
Boeing addresses these factors only briefly, and
the plaintiffs not at all. The Court is not prepared to decide the
question at this point. A cursory consideration suggests that a
majority of the factors favor application of the law of Indonesia
or Singapore, but it is not clear that this simple tally directs
application of foreign law without a more searching inquiry into
significance of these factors ai they relate to this case and as
they have been applied in other air crash cases.2
For example, the plaintiffs might challenge the unmodified application
of the "law of the flag" and "domicile of the carrier"
factors when the defendant in the suit is the manufacturer. Thus,
even under the assumption that the Death on the High Seas Act governs
these claims, the Court is unable to conclude with certainty that
foreign law governs the liability issues in the case.
III. CONCLUSION
In sum, neither the private nor the public factors
at issue here, nor the aggregate of all of these, clearly demonstrate
that this trial would be more fairly or more efficiently conducted
in a different forum. The Court finds that Boeing has failed to
show that these factors strongly favor dismissal on the ground of
forum non conveniens, and denies the motion to dismiss.
DATED this day of January, 2000.
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