On December 7, 2011, the French high court, the Cour de Cassation, ruled that a United States District Court could not use the doctrine of forum non conveniens under Article 33 of the 1999 Montreal Convention to transfer to Martinique suits brought because of the crash of a Colombian air carrier. The case had been dismissed by the U.S. District Court on the grounds that forum non conveniens is an available procedural tool under Article 33, and that the doctrine favored litigation in Martinique where all of the crash victims resided or were citizens. That decision was affirmed by the Eleventh Circuit Court of Appeals. It is expected that the plaintiffs will soon refile their suit in the United States.
On August 16, 2005, West Caribbean Airways, a Colombian flag carrier that did not fly to or do business in the United States, crashed over Venezuela during a charter flight between Martinique, a French possession in the Caribbean, and Panama City, Panama. All on board the aircraft—152 residents/citizens of Martinique—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, dba Newvac Corporation, a Florida corporation, were named as defendants. Newvac was sued as a “contracting carrier” under then new Article 39 of the 1999 Montreal Convention, as it had entered a charter contract with West Caribbean to provide the aircraft and crew to carry the Martinique passengers on the charter trip.
West Caribbean 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 did not rule 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 appropriate forum, and West Caribbean Airways was subject to and would consent to jurisdiction there.
The two main issues facing the 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 Article 33(4) was one of first impression in any U.S. court, defense counsel asked the court to invite the U.S. government to participate in the case and present its views on that critically important issue. The court did so, and the U.S. Department of Justice submitted a Statement of Interest that outlined the history of the negotiations at Montreal, concluding that forum non conveniens is an available procedural tool under Article 33(4).
In an extensive Preliminary Order that analyzed the legislative history of the 1999 Montreal Convention, U.S. District Court Judge Ursula Ungaro concluded, as did the DOJ, that forum non conveniens was 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 favored litigation in Martinique, and the Martinique courts were adequate and available. The Eleventh Circuit Court of Appeals affirmed this decision, and the U.S. Supreme Court denied the plaintiffs’ petition for certiorari.
Meanwhile French counsel in Martinique (presumably retained by plaintiffs’ counsel in the United States) brought an action before the Martinique Court seeking a decision that the court would not respect the U.S. District Court’s forum non conveniens dismissal, and would accordingly not accept nor allow the settlement of the cases in the Martinique courts. The grounds in support of this argument were that, as the 152 plaintiffs had opted to sue in a U.S. court, that preference, in accordance with Article 33, must be given priority and could not be defeated by a defense motion to dismiss based on forum non conveniens.
A three-judge court in Martinique rejected this argument, ruling that forum non conveniens was an available tool under Article 33, and that the U.S. District Court’s dismissal was a legitimate exercise of its authority. We are informed that this decision was affirmed by a French Cour d’Appel.
But following a subsequent appeal to the French high court, the Cour de Cassation, that court held on December 7, 2011, that U.S. courts could not properly employ the doctrine of forum non conveniens under Article 33 in this particular case. The high court ruled that the litigation must therefore be returned to the U.S. court where suit should proceed against the “contracting carrier,” Newvac Corporation. The decision has not yet been translated.
It is anticipated that the plaintiffs who sought the appeal and obtained the ruling will soon refile their cases in the U.S. District Court for the Southern District of Florida.
There is thus a clear conflict between the decisions of the French high court and the U.S. Eleventh Circuit Court of Appeals. It is very possible that if the decision of the French high court is not in some manner modified or overturned, other nations may follow the French position and in so doing diminish the importance of Article 33(4), and the use of forum non conveniens by U.S. courts in future 1999 Montreal Convention cases.
Allan Mendelsohn (Of Counsel in the Washington, D.C. office of Cozen O’Connor) was counsel for Jacques Cimetier and Newvac Corporation in both the United States District Court for the Southern District of Florida and the United States Court of Appeals for the Eleventh Circuit. He has written extensively on the subject of forum non conveniens and is an Adjunct Professor at Georgetown University Law Center where he teaches International Transportation Law.