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INTERNATIONAL JANUARY 2015 IN THIS ISSUE While forum non conveniens often arises and is a significant tool in mass disaster litigation, it is also very frequently October 2014 used in any type of accident that arises in a foreign country. This piece by veteran attorney Barry L. Davis serves as a cautionary tale of the potential perils of forum non conveniens and counsels defendants to carefully consider their options before triggering it in an effort to escape U.S. courts where there is any prospect of having the case adjudicated in a foreign country. A Review of Forum Non Conveniens in the United States and the Factors in Deciding Whether to Pursue an FNC Dismissal ABOUT THE AUTHOR Barry L. Davis is an AV rated, board certified trial lawyer with the firm of Thornton, Davis & Fein, P.A. He has acted as lead counsel in more than 50 trials of complex civil litigation matters. Among them are mass disaster litigation, class actions, products liability cases involving drugs and medical devices, tires and industrial equipment, intellectual property, negligent security, construction and commercial litigation, insurance bad faith and fraud. Mr. Davis is also called upon to serve as national coordinating counsel and local counsel. He has been a member of the IADC since 1987 and has served on the Trial Academy Faculty. He can be reached at [email protected]. ABOUT THE COMMITTEE The International Committee is the core international group in IADC and serves those members who have an interest in transnational or international legal matters including transactions, litigation, and arbitration. Thus any member, whether in the USA or abroad, who does cases with a foreign element (inbound or outbound) will find involvement in this committee extremely useful. Many of the members of the committee are from outside the USA, and this provides a rich mix of experiences and expertise as well as great networking opportunities. The International Committee also organizes European Regional Meetings and contributes to the International Corporate Counsel College. Learn more about the Committee at www.iadclaw.org. To contribute a newsletter article, contact: Peter Pliszka Vice Chair of Newsletters Fasken Martineau DuMoulin LLP [email protected] The International Association of Defense Counsel serves a distinguished, invitation-only membership of corporate and insurance defense lawyers. The IADC dedicates itself to enhancing the development of skills, professionalism and camaraderie in the practice of law in order to serve and benefit the civil justice system, the legal profession, society and our members. w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected] - 2 - INTERNATIONAL COMMITTEE NEWSLETTER January 2015 West Caribbean Airways is a unique case in budget. It owned several aircraft including the annals of forum non conveniens and two vintage MD82 aircraft which it had presents a rather compelling argument for the acquired after they had flown for many years avoidance of forum shopping or endeavoring by U.S. Operators. to manipulate a case in such a fashion as to make its retention by a U.S. Court inevitable.1 On August 16, 2005, during a return from For a great many of the plaintiffs who had Panama City with a full load of passengers, the legitimate claims as a consequence of the aircraft stalled at a high altitude, and the disaster involving West Caribbean Airways pilots were unable to recover. The aircraft Flight No. 708, their tactical decisions and crashed in a remote area in Venezuela those of their counsel have or may very well resulting in the deaths of all passengers and have grave consequences. It also provides crew members. All of the passengers were insight regarding the decision on whether to either citizens and/or residents of Martinique invoke an FNC challenge. (France). Furthermore, all of the tickets were purchased in Martinique. Martinique was PHASE I also the destination of the flight. West “THE PLAINTIFFS’ GAMBLE” Caribbean was an airline incorporated in Colombia with its principal place of business The accident, which gave birth to numerous in Bogota. Because both France and Panama decisions related to the crash of Flight No. were signatories to the Montreal Convention, 708, had as its origin in a series of tours which it was obvious that Article 33 would govern originated in Martinique, a Department of the choice of jurisdictions which could France, with scheduled flights to Panama City, entertain suits. Panama. The tours were negotiated by a small travel agency located in South Florida Seizing on a Warsaw Convention decision called Newvac Corp. Newvac Corp. was in fact from the Ninth Circuit Court of Appeals, a double wide trailer, occupied by several Hosaka v. United Airlines, several hundred computers with two employees. The claimants filed suit in the United States principal, Jacques Cimetier, was an District Court for the Southern District of experienced organizer of tours and had Florida. Although Florida obviously did not operated numerous excursions through the qualify under Article 33 as a jurisdiction in Caribbean and Central and South America which the suit could be brought against WCA, chartering aircraft owned by various airlines. the claimants made the unique argument that Newvac Corporation, who had arranged the In 2005, unable to secure an arrangement tours by chartering the aircraft from West satisfactory to him, he entered into an Caribbean and then leasing the entire aircraft agreement with a Colombian airline known as to a local tour operator in Martinique, was a West Caribbean Airways. WCA, as it became “contracting carrier” under the Montreal known, was a Colombian based and certified Convention. Although the concept of a airline, operating essentially on a shoestring “contracting carrier” was alien to the prior 1 Galbert v. West Caribbean Airways Case No. 06-CV- 22748 (USDC So Dist FL) w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected] - 3 - INTERNATIONAL COMMITTEE NEWSLETTER January 2015 Warsaw Convention, it was the subject of the The next question the court addressed was Guadalajara Convention which the United rather simple and that was whether the case States never ratified. When the Montreal should be dismissed on the basis of forum non Convention was negotiated, essentially the conveniens. Because the case was governed intent of Guadalajara including the by the Montreal Convention, the only issue to implications of a contracting carrier was be decided was damages. Because 100% of incorporated within it. Thus the plaintiffs the plaintiffs were French citizens and/or argued that the court had jurisdiction over residents, French law would clearly apply. Newvac as the contracting carrier since under Noting that France is a civil code jurisdiction Article 46, the plaintiffs, in their discretion, and that its judges were obviously more may file suit in any jurisdiction in which either familiar with the method of evaluating the contracting carrier or the actual carrier damages and determining who were rightful (who in this case was WCA), maybe found. claimants, and the ease with which the claims Like any document, however, negotiated by could be adjudicated in France and the countries with disparate judicial and legal difficulty in obtaining evidence if the cases systems, the civil code jurisdictions obviously were maintained in the United States, the did not appreciate the concept or the notion case was dismissed in favor of the alternative of personal jurisdiction. Thus the plaintiffs and available venue of Martinique. were suing an uninsured, modest tour operator and in all likelihood would have The plaintiffs appealed the decision to the never been able to establish personal Eleventh Circuit Court of Appeal. The court jurisdiction over WCA despite the notion in was not receptive to the argument that the Article 46 to the contrary. court abused its discretion in dismissing the case and was equally unpersuaded by the fact In an exhaustive opinion, Judge Ungaro, the that the court was not empowered to apply district court judge presiding over the case, forum non conveniens to a Montreal made the initial decision that the penultimate Convention case. Distinguishing Hosaka, the clause of Article 33 which reserved to the court noted that while Hosaka seemed to rely court of the jurisdiction seized to the case the on the fact that the contracting parties had right to apply its procedural rules, that the not addressed the concept of forum non doctrine of forum non conveniens was conveniens, the court observed that it would available. The court reviewed extensively the be have been quite impractical to consider various negotiations by the contracting such since the doctrine did not come into its parties to the convention and made the modern iteration until many decades after the conclusion that although certain jurisdictions ratification of the Warsaw Convention. On declined to apply forum non conveniens, the the other hand, during the negotiations of the United States, during negotiations had made Montreal Convention, the issue of forum non it clear that it had and would continue to apply conveniens was addressed at length and forum non conveniens in circumstances in specifically the United States insistence that it which the court found that its discretion would continue to apply same, is replete permitted same. throughout the negotiations. Accordingly, the court of appeals affirmed both the court’s w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected] - 4 - INTERNATIONAL COMMITTEE NEWSLETTER January 2015 right to exercise her discretion to apply the plaintiffs to refile their suits. Remarkably, the procedural tool of forum non conveniens in a plaintiffs’ position was not only that they Montreal Convention case and further affirm should have the right to select the fora in that her decision to do so in the WCA matter which to bring the action and that no foreign was proper.

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