Significant Federal Court FNC Decisions
By: Justin T. Green
(Reprinted from 2011 Aviation Litigation CLE Seminar paper)
Summary of Significant Federal Court Forum Non Conveniens Decisions
Justin T. Green, Kreindler & Kreindler LLP, New York, NY
TAM Airlines Flight 3054 Disaster
In Tazoe v. Airbus S.A.S.,2 the Eleventh Circuit affirmed the forum non conveniens dismissal of claims arising from the worst aviation disaster in Brazilian history.
On July 17, 2007, TAM Airlines Flight 3054 overran a rain-soaked runway as it attempted to land in Sao Paulo, Brazil and crashed into a warehouse and fueling station killing 187 people on board the airplane and twelve people on the ground. Roberto Tazoe, a U.S. citizen living in Florida, was among the victims. The airplane had an inoperative thrust reverser on its number two (right) engine. The thrust reversers help slow the airplane down upon landing along with the airplane’s brakes. TAM knew that the number two engine’s thrust reverser was not working, but decided that the airplane was still safe to fly as long as its pilots followed proper procedures. When they attempted to land in Sao Paulo, however, the pilots made a mistake: they left the throttle of the number two engine in “climb” mode instead of pulling it back to idle. This meant the number two engine produced more thrust and created an asymmetrical thrust condition when the pilots deployed the number one engine’s thrust reverser. The mistake also caused the airplane’s spoilers not to deploy and its auto brakes not to engage. As a result, the pilots could not stop the airplane and it ran off the runway.
After the Flight 3054 disaster, many lawsuits were filed in the Southern District of Florida. The plaintiffs settled all of their claims against TAM, and the forum non conveniens issue before the court related to the claims against the manufacturer defendants. The manufacturers agreed to submit themselves to the jurisdiction of Brazil and to toll the statute of limitations there, and the district court accordingly concluded that Brazil was an available and adequate alternative forum. The court then concluded that the balance of private and public interest factors favored Brazil, even for Mr. Tazoe’s estate’s claims.
On appeal, the Eleventh Circuit first noted that it would only disturb the district court’s dismissal if it determined that the district court had abused its discretion and that the district court was entitled to substantial deference. The court then considered whether the district court was entitled to dismiss the complaints filed by the families of the Brazilian victims. The court found that Brazil was an adequate alternative forum, based largely on the manufacturer’s agreement to submit to jurisdiction and to waive the statute of limitations.
The court also agreed with the district court that the “vast majority [of evidence] appears to be in Brazil or France.” The wreckage was in Brazil, the “results of five governmental investigations of the accident” were in Brazil, damages information was in Brazil, the court lacked authority to compel certain witnesses to attend proceedings, the manufacturers could not implead certain potential responsible parties in the U.S. litigation, the accident site was in Brazil, and a trial in the Southern District of Florida would incur significant document translation costs.
The court separately considered the Tazoe claim because the family was entitled to “somewhat more deference” in the choice of a U.S. forum than the choices of the foreign plaintiffs. Nevertheless, the court affirmed the dismissal, finding that the district court did not abuse its discretion when it concluded that “material injustice is manifest” in the claims of the Tazoe family against the manufacturers since those defendants could not compel certain witnesses and evidence and implead potentially liable third-parties.
Air France Flight 447 Disaster
In a widely-followed decision, Judge Stephen Breyer of the Northern District of California recently dismissed the claims of a U.S. citizen based on the forum non conveniens doctrine — even claims brought under the Montreal Convention, which provides that the plaintiff’s principal and permanent residence has the jurisdiction to hear the case if the carrier is subject to jurisdiction there.
In re Air Crash Over the Mid-Atlantic on June 1, 20093 arose from the crash of Air France Flight AF447, which took off from Rio de Janeiro bound for Charles de Gaulle Airport in France. The aircraft used for Flight 447 was an Airbus A330-200. The last contact from the crew was a routine message to Brazilian air traffic controllers over the Atlantic Ocean. Forty minutes later, the airplane emitted a four-minute- long series of automatic radio messages, identifying numerous difficulties. The aircraft then disappeared off radar. The disaster took the lives of 216 passengers and twelve crew members.
Among the Flight 447 passengers were Mr. and Mrs. Harris, U.S. citizens residing in Brazil. Their estates’ representatives sued Air France in the United States based on the Montreal Convention, which provides for jurisdiction, inter alia, in the jurisdiction where the plaintiff maintained his or her “principal and permanent residence.” Air France moved to dismiss the Harris claims, arguing that because Mr. and Mrs. Harris were living in Brazil and Mr. Harris worked in Brazil they had established Brazil as their residence and they could not sue in the United States. The court rejected Air France’s argument, finding that the Montreal Convention’s use of the word “permanent” required more than just determining where the victim was living at the time of the accident. The court examined the Montreal Convention’s drafting history and concluded that “principal and permanent residence” was akin to domicile and while Mr. and Mrs. Harris were residing in Brazil, they had not abandoned the U.S. domicile. This element of the decision may have significant influence on the law since there have been few reported decisions on the issue.
After finding that the Montreal Convention provided jurisdiction, the court found that it could still dismiss claims based on the forum non conveniens doctrine. The court reached this conclusion despite a prior ruling in which the Ninth Circuit had held that the forum non conveniens doctrine conflicted with jurisdictional provisions of the Warsaw Convention, the predecessor of the Montreal Convention. The Ninth Circuit had found that permitting forum non conveniens dismissals would conflict with the Warsaw Convention’s purpose of allowing plaintiffs flexibility in choice of forum and “would undermine the [Warsaw convention’s] goal[s] of uniformity [and balance].”4
The court found, however, that forum non conveniens dismissals were appropriate under the Montreal Convention. It noted that while the Warsaw Convention was drafted at a time when the doctrine of forum non conveniens was fairly new and, therefore, the Convention’s silence on the doctrine meant that it was not available, the doctrine was well established at the time the Montreal Convention was drafted. Secondly, the court noted the positions taken by the United States, including those taken during the Montreal Convention’s drafting.5
The court then recognized the trend toward dismissing the claims of foreign plaintiffs: “[c]ourts inside and outside the Ninth Circuit have dismissed on forum non conveniens grounds air crash cases brought by primarily foreign plaintiffs.”6 On private interest factors, the court relied heavily upon defendants’ agreement to “provide all of their evidence in France.” In contrast, the court found it would be very difficult to get the evidence, including all the physical evidence, located in Europe, into the U.S. litigation.
The court held that the public interest factors heavily favored dismissal, finding that France was more interested than the U.S. in the litigation since the flight was destined for France and had many more French citizens than U.S. citizens on board. The court found that the U.S. interests were not sufficient to justify the investment of “judicial time and resources” in the case. The court also noted that the foreign plaintiffs could name Air France as a defendant in France, but were not able to do so in the U.S.
In an aside, the court stated that if the defendants were to bring Air France into the U.S. litigation brought by the foreign plaintiffs, it would create tension with the Montreal Convention, which does not provide jurisdiction over Air France for the foreign plaintiffs’ claims. The court concluded that this tension, and the possibility that the defendants would be unable to successfully implead Air France into the suits brought by the foreign plaintiffs, weighed in favor of dismissal.
Following the dismissal, the U.S. plaintiffs filed a motion to reconsider, arguing that there was no basis to dismiss the “damages only” cases against Air France brought under the Montreal Convention. Under the Convention, Air France is strictly liable for the accident up to 100,000 Special Drawing Rights (approximately $158,000) and would have to show that it was not negligent to avoid liability beyond that amount for provable compensatory damages. The plaintiffs argued that dismissing the claims would create tension with the Montreal Convention, which provided for U.S. jurisdiction and that there was no justification under the forum non conveniens doctrine to dismiss what are essentially the damages claims of U.S. citizens. The court denied the motion, and the U.S. plaintiffs have appealed. The district court has not yet ruled on a motion to reconsider filed by the foreign plaintiffs.
The Gol Flight 1907 Disaster
In In re Air Crash Near Peixoto De Azeveda, Brazil on September 29, 2006, 574 F. Supp. 2d 272 (E.D.N.Y. 2008), wrongful death claims were brought in the Eastern District of New York by Brazilian plaintiffs representing decedents who were Brazilian citizens at the time of their deaths. The claims arose from the Gol Flight 1907 disaster on September 29, 2006.
A Gol Flight 1907 aircraft had collided with a new Embraer EMB-135BJ Legacy 600 jet (the “Legacy jet”) operated by defendant ExcelAire, a New York company. The pilots of the Legacy Jet had picked it up at Embraer in Brazil and were ferrying it to the U.S. The pilots were U.S. citizens residing in New York. The plaintiffs sued ExcelAire and the pilots of the Legacy. The plaintiffs also sued Honeywell, another U.S. company, alleging that defects in avionics equipment in the Legacy were the cause of the collision. Other named defendants included Raytheon, Lockheed Martin and Amazon Tech., all U.S. companies, which had worked on the radar system for the Amazon region of Brazil. It is noteworthy that Brazil considers the radar system part of its national security infrastructure. Another U.S. defendant, ACSS, manufactured the Traffic Alert and Collision Avoidance System (“TCAS”).
The court noted “other [involved] entities” including Gol and Embraer, both headquartered in Brazil, A- Tech, a Brazilian technology company, Brazil’s air traffic control agency and Brazil’s government agency were charged with investigating accidents.
Like all cases involving foreign accidents, the Gol disaster spawned a massive investigation outside the U.S. It was principally investigated by the Brazilian authorities, but the U.S. National Transportation Safety Board and the Federal Aviation Administration also participated in the investigation. Following the disaster a criminal proceeding was commenced in Brazilian federal court and civil actions against Gol also were commenced (Gol is 100% liable to the passengers under Brazilian law). Many of the cases in Brazil had already been resolved when the U.S. court addressed the forum non conveniens question.
As in almost every case, the defendants, with the exception of the Legacy pilots and ExcelAire, agreed to Brazilian jurisdiction, to waive any statute of limitation defense and to make available witnesses and evidence in Brazil. ExcelAire agreed to everything except tolling the statutes of limitation. The pilots would not agree to return to Brazil for fear of criminal prosecution, but did agree to appear for a videotaped deposition in the U.S.
The court provided a detailed discussion regarding the deference it would accord to the foreign plaintiffs’ choice of forum and, while rejecting the defendants’ argument that the plaintiffs were entitled to no deference, the court decided that the deference had to be limited. The court rejected the plaintiffs’ reliance on a U.S.-Brazil Treaty that provided equality of access to the courts for citizens of each nation who are “transient or dwelling” in the territory of the other nation to argue that the court must give full deference because the plaintiffs were not present in the U.S. The court reduced the level of deference further because it found that none of the plaintiffs had convenient residence in relation to the forum. After weighing the factors set forth in the Second Circuit’s Iragorri v. United Tech., Corp.7 decision, the court found that they did not “move plaintiffs to any higher level of deference than they started with based on their foreign-citizen status.” In other words, the court set the bar the defendants had to hurdle to obtain a dismissal relatively low.
The court rejected plaintiffs’ arguments that Brazil was not an available alternate forum. It then found that the private and public interest factors fell “on both sides of the aisle, and down the middle ….” In the end, it decided to dismiss the case because of its concern that the court lacked jurisdiction over potentially liable parties and also lacked the power to compel the production of documents from Brazil, or the testimony of witnesses in Brazil. The Second Circuit affirmed the court’s ruling in a summary order, stressing the deference owed to the trial court in making forum non conveniens determinations.8
Other Recent Decisions
In Francois v. Hartford Holding Co., 2010 WL 1816758 (D.V.I. May 5, 2010), wrongful death actions were brought in the U.S. Virgin Islands on behalf of four Dominican nationals and a citizen of the Netherlands for their damages relating from a crash on Dominica. The flight originated in St. Maarten and its destination was Dominica. Cardinal Airlines, Ltd. (“Cardinal”), a Dominican airline, sold the tickets to the plaintiffs. Defendant Hartford Holding Company leased the airplane to defendant Air Anguilla, a St. Thomas corporation, which maintained it and operated it for Cardinal pursuant to a lease agreement entered into in Dominica. The Organization of Eastern Caribbean States Civil Aviation Authority, the United States National Transportation Safety Board and the Federal Aviation Administration investigated the accident.
The court found Dominica was an available forum based on defendants’ consent to jurisdiction and that Dominica was an adequate alternative forum, noting that Dominica recognizes a cause of action for personal injury arising from negligence. The court also relied on the defendants’ waiver of the statute of limitation, and rejected the affidavit of plaintiffs’ expert that the Dominican courts would not recognize a waiver of the statute of limitations.
The plaintiffs, none of whom were United States citizens at the time the action was filed, and only one of whom, Mary Anthony, purportedly became a citizen since then, have given no reason why they chose the District of the Virgin Islands as the forum. None of them resides here. Their attorney has no office here and is appearing pro hac vice. None of the acts regarding liability or damages occurred here. The only connection to the Virgin Islands is that one defendant, Air Anguilla, had an office in St. Thomas. Thus, the plaintiffs’ choice of the District of the Virgin Islands is not entitled to a strong presumption of convenience, but will be given some deference.9
The court concluded that the Dominican courts are better than the U.S. courts at applying Dominican laws and dismissing the case avoids the U.S. court with its “already back-logged civil case inventory” from having to address any conflicts of laws issues. Id. Dismissing the case avoids U.S. citizens from having to serve on the jury and would eliminate one action from the congested docket. The private interest factors were significantly impacted by the defendants conceding liability, leaving damages the only issue to be determined.
Can v. Goodrich Pump & Engine Control Systems, Inc., 711 F. Supp. 2d 241 (D. Conn. 2010), arose from a helicopter crash in Turkey. The helicopter was manufactured in the United States by MD Helicopters, Inc., an Arizona company, which plaintiffs did not sue. Plaintiffs, who were all citizens and residents of Turkey, sued component parts manufacturers, including Rolls-Royce Corporation and Goodrich Control Systems, Inc. The forum non conveniens issue came before the court with an unusual procedural history because a state court in Indiana had already dismissed an almost identical claim on forum non conveniens grounds and the main issue before the court was whether the prior decision was entitled to collateral estoppel. Furthermore, plaintiffs brought a spoliation claim, which they argued was not subject to the prior order. The court found that it had addressed the issue and rejected the plaintiffs’ argument that the prior decision was not preclusive. The court found that Turkey was an adequate alternative forum for the litigation, that plaintiffs’ choice of the U.S. as a forum was entitled to little deference and the public and private interest analysis strongly favored dismissal.
In re Air Crash Disaster over Makassar Strait, Sulawesi,10 arose from the crash of Adam SkyConnection Airlines Flight DHI 571, a Boeing 737 airplane, off the coast of Sulawesi. The crash killed all 102 persons on board. The investigators found that the crash was caused because the pilots became engrossed with troubleshooting a system malfunction of the airplane’s inertial reference system and did not pay attention to their other flight responsibilities. While they were troubleshooting, the airplane’s autopilot disengaged and the airplane went out of control. When the pilots finally attempted to correct the problem, they over-stressed the airplane and caused a structural failure.
Plaintiffs, none of whom were U.S. citizens or residents, brought suit in the Northern District of Illinois against a number of U.S. entities, including Boeing. Defendants moved to dismiss on forum non conveniens grounds, arguing that the litigation belonged in Indonesia.
The court rejected plaintiffs’ argument that corruption in Indonesia rendered it an unavailable forum. The court decided that the case should be dismissed in favor of Indonesia, finding that it would be easier there to obtain necessary evidence and because defendants could implead the airline in Indonesia.
- The authors wish to acknowledge the assistance of Michael G. Koueiter of Condon & Forsyth LLP in the preparation of this paper.
- 631 F.3d 1321 (11th Cir. 2011)
- 2010 WL 3910354 (N.D. Cal. October 4, 2010)
- In re Air Crash Over the Mid-Atlantic on June 1, 2009, 2010 WL 3910354 (N.D. Cal. Oct. 4, 2010) (quoting Hosaka v. United Airlines, Inc., 305 F.3d 989, 993 (9th Cir. 2002)).
- Id. at § 5 (citing In re West Caribbean Airways, S.A., 619 F.Supp. 2d at 13426) (The U.S. filed statement of interest in the West Caribbean Airways case favoring the availability of forum non conveniens in Montreal Convention cases).
- Id at *6
- 274 F.3d 65 (2d Cir. 2001). The Iragorri factors for determining whether the plaintiff’s choice of forum was genuinely motivated by convenience include the following: 1. The convenience of plaintiff’s residence to the forum, 2. The availability of witnesses and evidence in the forum, 3. The defendants amenability to suit in the forum, 4. The “availability of appropriate legal assistance,” and 5. “other reasons related to convenience or expense.”
- Lleras, et al. v. Excelaire Services, Inc. et al., 354 Fed.Appx. 585, 2009 WL 4282112 (2d Cir. Dec. 2, 2009).
- Id. at *5
- 2011 WL 91037 (N.D. Ill. Jan. 11, 2011).