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SUITS BY FOREIGNERS IN US COURTS FOR AIR

ACCIDENTS OCCURRING ABROAD:

FORUM NON CONVENIENS AFTER THE

COUR DE CASSATION’S DECISION

by

Beixiao Liu

S Y N O P S I S

SYNOPSIS .......................................................................................................347 ABSTRACT .....................................................................................................349 RÉSUMÉ ..........................................................................................................349 KEYWORDS ...................................................................................................349 I. INTRODUCTION ...............................................................................350 II. THE WEST CARIBBEAN CASE ........................................................350 III. THE AVAILABILITY OF FORUM NON CONVENIENS IN

US COURTS UNDER THE WARSAW AND MONTREAL CONVENTIONS .................................................................................352 A. THE DOCTRINE OF FORUM NON CONVENIENS ...........352 B. THE CIRCUIT SPLIT UNDER THE WARSAW

CONVENTION .........................................................................353 1. IN 1987, FORUM NON CONVENIENS WAS

AVAILABLE UNDER THE WARSAW CONVENTION ..............................................................353

2. IN 2002, FORUM NON CONVENIENS WAS UNAVAILABLE UNDER THE WARSAW CONVENTION ..............................................................354

C. FORUM NON CONVENIENS IN THE US UNDER THE MONTREAL CONVENTION PRIOR TO THE COUR DE CASSATION DECISION .......................................356 1. THE 2007 WEST CARIBBEAN CASE: FORUM

NON CONVENIENS IS AVAILABLE UNDER THE MONTREAL CONVENTION .............................356

Principal, Promontory Financial Group, Washington, DC. JD (2015), Georgetown University; MBA (2010), Yale University; BS (2007), Tsinghua University.

348 ANNALS OF AIR AND SPACE LAW VOL XL

2. THE 2010 KHAN CASE: DOCTRINE OF FORUM NON CONVENIENS IS AVAILABLE UNDER THE MONTREAL CONVENTION .............357

3. THE 2010 RE AIR CRASH OVER THE MID-ATLANTIC LITIGATION: FORUM NON CONVENIENS IS AVAILABLE UNDER THE MONTREAL CONVENTION ......................................358

IV. AN EVALUATION OF WEST CARIBBEAN AND THE COUR DE CASSATION DECISION UNDER INTERNATIONAL LAW ...................................................................359 A. TREATY INTERPRETATION UNDER

INTERNATIONAL LAW ........................................................359 B. TREATY INTERPRETATION UNDER THE US

LAW ...........................................................................................360 C. THE WEST CARIBBEAN COURT CLOSELY

FOLLOWS TREATY INTERPRETATION PRINCIPLES UNDER INTERNATIONAL LAW ................360

D. THE COUR DE CASSATION’S DECISION DOES NOT APPEAR TO FOLLOW TREATY INTERPRETATION PRINCIPLES UNDER INTERNATIONAL LAW ........................................................362

E. THE COUR DE CASSATION’S DECISION FAILED TO CONSIDER THE TRAVAUX PRÉPARATOIRES ..........363

F. THE COUR DE CASSATION’S DECISION FAILED TO CONSIDER PRIOR US COURT DECISIONS ................364

G. THE COUR DE CASSATION’S DECISION FAILED TO FULLY CONDUCT A TEXTUAL ANALYSIS ...............365

V. THE EFFECTS OF THE COUR DE CASSATION’S DECISION ON FORUM NON CONVENIENS IN THE US COURTS ...............................................................................................366 A. US COURTS STILL HELD FORUM NON

CONVENIENS AVAILABLE UNDER THE MONTREAL CONVENTION AFTER THE COUR DE CASSATION DECISION ...................................................366

B. COMPARISON WITH BLOCKING STATUTES ..................367 1. BLOCKING STATUTES ................................................368 2. US COURTS HAVE CONSISTENTLY HELD

FORUM NON CONVENIENS TO BE AVAILABLE DESPITE BLOCKING STATUTES. .....................................................................369

C. THE COUR DE CASSATION’S DECISION HAS LIMITED PRECEDENTIAL VALUE .....................................371

VI. CONCLUSION ....................................................................................372

2015 SUITS BY FOREIGNERS IN US COURTS FOR AIR ACCIDENTS OCCURRING ABROAD: 349 FORUM NON CONVENIENS AFTER THE COUR DE CASSATION’S DECISION

A B S T R A C T

In light of the decisions of the United States Court of Appeals for the 11th Circuit and French Cour de Cassation in the West Caribbean case, the US and French judiciary systems seem to be in a standoff on the issue of the availability of forum non conveniens under the Montreal Convention. This paper reviews the history of the US judicial rulings on forum non conveniens in air crash cases under the Montreal Convention and its predecessor, the Warsaw Convention. The article then evaluates the US and French rulings in the West Caribbean case against treaty interpretation principles under international law, and compares this standoff between two countries’ judiciaries with similar situations arising under blocking statutes enacted by legislatures in several Latin American and Asian countries. This paper concludes with an assessment of the continued availability of forum non conveniens in the US courts under the Montreal Convention.

R É S U M É

À la lumière des décisions de la Cour d'Appel pour le 11ème circuit des États-Unis et de la Cour de Cassation française, dans l'affaire West Caribbean, les systèmes judiciaires français et américains semblent se trouver dans une impasse, quant au forum non conveniens résultant de la Convention de Montréal. Cet article passe en revue l'historique des décisions de justice aux États-Unis, concernant le forum non conveniens relatif aux accidents aériens visés par la Convention de Montréal et son ancêtre, la Convention de Varsovie. Il examine ensuite les jugements américains et français dans l'affaire West Caribbean, au regard des principes d'interprétation des traités, en droit international, et compare cet affrontement entre systèmes judiciaires de deux pays, avec des situations semblables ayant découlé de lois de blocage élaborées par les législateurs de différents pays d'Amérique Latine et d'Asie. L'article termine par une analyse sur la possibilité constante d’invoquer le forum non conveniens, devant les cours américaines, en vertu de la Convention de Montréal.

K E Y W O R D S Montreal Convention, Forum Non Conveniens, US jurisprudence, blocking statue, jurisdiction


I. INTRODUCTION

ord Denning, an English judge, once said “as a moth is drawn to the light, so is a litigant drawn to the United States”. 1 It is widely perceived that an air crash case, if litigated in the United States (US),

will likely have a substantially greater value than in the forum of the accident or in a decedent’s place of residence abroad, because of the availability of trial by jury, publicity and lack of consistent damage caps for noneconomic damages.

Forum non conveniens refers to the discretion of a court to refuse to hear a case if the forum is inappropriate or inconvenient for the defendant or the jurisdiction. US courts have routinely utilised the forum non conveniens doctrine to assess whether an air crash litigation should occur in a more convenient foreign forum, including in cases arising out of the Warsaw Convention2 and the Montreal Convention.3

The central issue this paper addresses arose out of the decision reached by the US Court of Appeals for the Eleventh Circuit in Pierre-Louis v. Newvac Corp.4 In that case, the Eleventh Circuit and the Cour de Cassation, France’s court of final appeal for civil and criminal matters, reached entirely opposite conclusions regarding the availability of forum non conveniens under the Montreal Convention. The divergent opinions handed down by the superior appeal courts of the US and France resulted in a standoff between the judiciaries of the two countries which are host to the largest aircraft manufacturers in the world and arguably cast doubt on the availability of such a procedural tool in future air crash litigations in the US courts.

II. THE WEST CARIBBEAN CASE West Caribbean Airways S.A. (West Caribbean) is a Colombian airline corporation. On 16 August 2005, a McDonnell Douglas MD–82 aircraft that was en route from Panama to Martinique crashed in Venezuela and all the passengers aboard the plane were killed. The heirs of the

1 Smith Kline & French Laboratories Ltd. and Others v Bloch [1983] 1 WLR 730 at 730. 2 Convention for the Unification of Certain Rules Relating to International Carriage by Air, 12 October 1929, ICAO Doc 7838, 49 Stat 3000, 137 LNTS 11 (entered into force 13 February 1933) [Warsaw Convention]. 3 Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999, 2242 UNTS 309; S Treaty Doc No 106-45 (2000) (entered into force 4 November 2003) [Montreal Convention]. 4 Pierre-Louis v Newvac Corp., 584 F (3d) 1052 (11th Cir 2009) [Pierre-Louis].

L


victims brought an action against West Caribbean; both the plaintiffs and decedents were residents of Martinique, an Overseas Department of France. Besides West Caribbean, the other defendants, Newvac Corporation and Go 2 Galaxy, Inc., were both Florida corporations that entered into a charter contract with West Caribbean to provide air travel to the passengers aboard the MD–82 aircraft. The plaintiffs first filed the lawsuit in the US District Court for the Southern District of Florida, which agreed with the plaintiffs that it might recognise jurisdiction in this case under Article 33 of the Montreal Convention because Newvac is a “contracting carrier” pursuant to Article 39 of the Montreal Convention and is domiciled in southern Florida.5 However, the US District Court eventually dismissed the complaint on the grounds of forum non conveniens,6 because all the plaintiffs were French citizens and the crash site was in Venezuela. The US Court of Appeals for the Eleventh Circuit affirmed.7 Subsequently, certain plaintiffs refiled the suit in Martinique arguing that, because they chose to sue in the US, the Court of First Instance in Martinique did not have jurisdiction under the Montreal Convention. After both the Court of First Instance in Martinique and the Court of Appeals at Fort–de–France rejected this argument, the plaintiffs appealed to the Cour de Cassation. In December 2011, the Cour de Cassation overruled the lower French courts and held that as the plaintiffs had first filed their Montreal Convention claims in the United States, French courts were precluded from ruling on the matter. The Cour de Cassation stated that Articles 33 and 46 of the Montreal Convention “require the plaintiff to have the sole option of deciding on the forum in which the action will be brought, without the possibility of a national rule of procedure thwarting the plaintiff's imperative choice of jurisdiction”.8 Consequently, the Cour de Cassation declared the “current unavailability of the French

5 In re West Caribbean Airways, S.A., No. 06-22748, 32 Av Cas. (CCH) 15,764, 619 F Supp (2d) 1299 (SD Fla 2007) [re West Caribbean]. Article 39 of the Montreal Convention, supra note 3, provides:

The provisions of this Chapter apply when a person (hereinafter referred to as "the contracting carrier") as a principal makes a contract of carriage governed by this Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as "the actual carrier") performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part a successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary.

6 Ibid. 7 Pierre-Louis v Newvac Corp., 584 F (3d) 1052 (11th Cir 2009), cert. denied, 130 S Ct 3387 (2010). 8 Galbert v West Caribbean Airways, 715 F (3d) 1290 (11th Cir 2009) at 1294.


venue”,9 meaning that the French courts were without jurisdiction if the plaintiff had initially chosen to sue elsewhere. Relying on the Cour de Cassation’s decision, the plaintiffs asked the US District Court for Southern District of Florida to vacate its order dismissing the complaint on the basis of forum non conveniens. The District Court denied the motion 10 and the Court of Appeals for the Eleventh Circuit affirmed the District Court's decision, albeit on slightly different grounds.11 In December 2013, the US Supreme Court denied certiorari.12 This litigation marathon ended without a definitive conclusion. The plaintiffs exhausted all judicial avenues provided by both the US and France, but the outcome was that the judicial system of neither country would agree to adjudicate this matter. This case presents an intellectually intriguing issue regarding the availability of the forum non conveniens doctrine under the Warsaw and Montreal Conventions. This paper attempts to tackle this issue by answering the following two questions:

1. Under international law, is the Cour de Cassation’s decision a legitimate interpretation of the Montreal Convention, or a result of judicial error?

2. Going forward, is the doctrine of forum non conveniens still a permissible ground for dismissal of cases by the US courts to other foreign courts under the Montreal Convention?

III. THE AVAILABILITY OF FORUM NON CONVENIENS IN US COURTS UNDER THE WARSAW AND MONTREAL CONVENTIONS

A. THE DOCTRINE OF FORUM NON CONVENIENS

Under the doctrine of forum non conveniens, a federal district court may dismiss an action if a foreign court is a more appropriate and convenient forum for adjudicating the matter. 13 To obtain a dismissal

9 See Allan I Mendelsohn & Carlos J Ruiz, “US. Court Rebuffs French High Court's Attack on. Forum Non-Conveniens Doctrine” (2012) 37: 4 & 5 Air & Space Law 305 at 311. 10 In re West Caribbean Airways, 2012 WL 1884684 (SD Fla 2012). 11 Galbert v West Caribbean Airways, 715 F (3d) 1290 (11th Cir 2009) [Galbert]. 12 Bapte v West Caribbean Airways , 134 SCt 792 (Mem) (2013). 13 See Sinochem International Co. Ltd. v Malaysia International Shipping Corp., 549 US 422 at 425 (2007).


under this doctrine, the moving party must demonstrate that the plaintiff can reinstate its suit in an adequate alternate forum without undue inconvenience or prejudice and that the public and private factors weigh in favour of the dismissal.14

B. THE CIRCUIT SPLIT UNDER THE WARSAW CONVENTION

The text of the Warsaw Convention is silent on the availability of the doctrine of forum non conveniens. Questions of jurisdiction and procedure, however, are governed by Article 28, which states:

1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination. 2. Questions of procedure shall be governed by the law of the Court seised of the case.15

1. IN 1987, FORUM NON CONVENIENS WAS AVAILABLE

UNDER THE WARSAW CONVENTION On 9 July 1982, Pan American Flight 759 crashed in Kenner, Louisiana, shortly after take-off from Moisant International Airport (now Louis Armstrong New Orleans International Airport). All 154 persons aboard the plane perished. Personal representatives of many of the deceased passengers filed wrongful death suits in the US District Court for the Eastern District of Louisiana against Pan American World Airways, Inc. (Pan American), the Boeing Company (manufacturer of the airplane), and the New Orleans Aviation Board (operator of Moisant International Airport). Pan American invoked the doctrine of forum non conveniens, insisting that the plaintiffs' home country of Uruguay is the proper forum for the resolution of plaintiffs' claims. The motion was denied by the district court.

14 See Tazoe v Airbus S.A.S., 631 F (3d) 1321 (11th Cir 2011) at 1330. 15 Warsaw Convention, supra note 2, art 28.


In 1987, the Court of Appeals for the Fifth Circuit, sitting en banc, pointed out that the fact that plaintiffs are foreign is not, in and of itself, sufficient to require dismissal under forum non conveniens.16 Meanwhile, the Court held that Article 28 of the Warsaw Convention does not grant plaintiff an “absolute and inalterable right”17 to choose a national forum in which claims will be litigated. Instead, the choice is subject to procedural requirements and devices that are part of the forum's internal law, including the doctrine of forum non conveniens. After granting a certiorari review, the Supreme Court vacated this decision and remanded it to the Fifth Circuit for further consideration in light of Chan v. Korean Air Lines, Ltd.,18 which held that an air carrier did not lose the benefit of damages limitation of the Warsaw Convention, as modified in 1966 by the Montreal Agreement, by failing to provide a notice of that limitation in 10-point type on passenger tickets. The Fifth Circuit noted “the Supreme Court neither expressed nor intimated any disagreement with or criticism of any part of” the opinion other than that relating to the ticket size.19 Accordingly, except for the font size issue, the Fifth Circuit reinstated the opinion of the en banc court, including its ruling on forum non conveniens. Thus, long before the Montreal Convention was negotiated and signed in 1999, the Fifth Circuit already held that form non conveniens is an available procedural tool to remove a suit from US courts.

2. IN 2002, FORUM NON CONVENIENS WAS

UNAVAILABLE UNDER THE WARSAW CONVENTION Despite the ruling of the Fifth Circuit in the late 1980s, the Ninth Circuit in 2002 denied the availability of forum non conveniens, even though the decision was issued after the Montreal Convention was negotiated and signed in 1999. Thus, the Hosaka case arose from United Airlines Flight 826 on 29 December 1997, which encountered severe turbulence over the Pacific Ocean on its way from Tokyo to Hawaii. The turbulence resulted in the death of one passenger and injuries to many others, and several of the injured passengers, and in some cases family members who were not passengers on the flight, brought suit to recover damages under the Warsaw Convention. The US District Court for the Northern District of California dismissed the actions in favour of a more convenient forum in

16 In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982, 821 F (2d) 1147 (5th Cir 1987), cert. granted, at 1161. Judgment vacated by Pan American World Airways, Inc. v Lopez, 490 US 1032 (1989). 17 re Air Crash Disaster Near New Orleans, Louisiana, supra note 16 at 1161. 18 Chan v. Korean Air Lines, Ltd., 490 US 122 (1989). 19 In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982, 883 F.2d 17 (5th Cir 1989) at 17.


Japan on the ground of forum non conveniens, and plaintiffs appealed. The US Court of Appeals for the Ninth Circuit held that Article 28 of the Warsaw Convention overrides the discretionary power of federal courts to dismiss an action on the ground of forum non conveniens in favour of a forum in another country.20

In rejecting the decision of the Court of Appeals for the Fifth Circuit in the Pan American crash, the Ninth Circuit in Hosaka found the text of Article 28 to be ambiguous. To support its decision, the Hosaka Court turned instead to the Treaty's purposes, its drafting history, as well as evidence of the parties' post-ratification understanding and the treatment of the issue in other treaties and by other courts.21 The Ninth Circuit found that the Warsaw Convention was negotiated at a time when the doctrine of forum non conveniens as it exists today, was not even recognised by US courts.22

The Ninth Circuit in Hosaka noted that the Montreal Convention is an entirely new treaty and that Article 33 of the Montreal Convention, although similar to Article 28 of the Warsaw Convention, has its own distinct drafting history and therefore does not shed light on the intention of the drafters of the Warsaw Convention with respects to the availability of forum non conveniens.23 The Ninth Circuit made clear in Hosaka:

We offer no opinion as to whether the text and drafting history of the Montreal Convention demonstrate whether forum non conveniens would be available in an action brought under that as-yet-unratified treaty.24

Probably this is why the US Supreme Court denied certiorari. There clearly was a conflict but the Supreme Court probably recognised that this issue would not likely arise again in the context of the Warsaw Convention.

20 Hosaka v United Airlines, Inc., 305 F (3d) 989 (9th Cir 2002), cert denied, 537 US 1227 (2003) [Hosaka]. 21 Ibid at 1003–04. 22 Ibid at 999, n 13. 23 Ibid at 999–1001. 24 Ibid at 1001 n 17.


C. FORUM NON CONVENIENS IN THE US UNDER THE MONTREAL CONVENTION PRIOR TO THE COUR DE CASSATION DECISION

The Montreal Convention came into force in the US on 4 November 2003, when the US Senate ratified the treaty. As of May 2015, 112 of the 191 Member States of the International Civil Aviation Organization (ICAO) plus the European Union have adopted the Convention. 25 A number of fast-growing aviation markets in Asia, such as Thailand, the Philippines, Indonesia, and Vietnam, have not signed the Convention yet. Russia is another notable absentee. At the time of the West Caribbean crash, both the place of departure, Panama, and the place of destination, France, had ratified the Montreal Convention, which is why the case was decided under the Montreal Convention. Article 33(1) of the Montreal Convention, similar to Article 28 of the Warsaw Convention, allows a suit to be brought against a carrier in the country (a) of its incorporation, (b) of its principal place of business; (c) where the ticket was purchased, and (d) of the destination of the passenger. Article 33(2) of the Montreal Convention, unlike the Warsaw Convention, also allows cases involving the death or injury of a passenger to be brought in the country of the passenger's principal and permanent residence, so long as the carrier provides services to that country, either directly or via code-share or other similar arrangement with another carrier. Article 33(4) of the Montreal Convention provides that “[q]uestions of procedure shall be governed by the law of the court seized of the case”.26

1. THE 2007 WEST CARIBBEAN CASE: FORUM NON

CONVENIENS IS AVAILABLE UNDER THE MONTREAL CONVENTION

As mentioned earlier, in West Caribbean, the Eleventh Circuit affirmed the District Court’s decision that “the Montreal Convention was not a bar to the application of the forum non conveniens doctrine”.27 In an exhaustive analysis, the US District Court for the Southern District of Florida held that it is the court's responsibility “to give the specific words of the treaty a meaning consistent with the shared expectations of the

25 ICAO, Status of the Convention for the Unification of Certain Rules for International Carriage by Air done at Montreal on 28 May 1999, online: ICAO <www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf>. 26 Montreal Convention, supra note 3, art 33(4). 27 Pierre–Louis, supra note 4, aff’g, In re West Caribbean Airways, supra note 10.


contracting parties”.28 The district court found the Hosaka decision to have limited precedential value on the ultimate issue of the availability of forum non conveniens under the Montreal Convention, because the Hosaka court was seeking to:

ascertain the shared expectations of the signatories to a treaty that was drafted in 1925 and 1929, at a time when the forum non conveniens doctrine was rarely utilized, its contours were undeveloped, and its procedural character was unsettled.29

By the time the Montreal Convention was negotiated and signed in 1999, however, forum non conveniens had been consistently used by the US federal and state courts to decline jurisdiction in mass tort litigations, including air accident litigations (such as case involving the Pan American crash in Kenner, Louisiana). Therefore, the Court held that it was a shared expectation of the Montreal Convention Member States to include forum non conveniens as a procedural tool under the US domestic law.

2. THE 2010 KHAN CASE: DOCTRINE OF FORUM NON CONVENIENS IS AVAILABLE UNDER THE MONTREAL CONVENTION

In 2008, plaintiff Mahmood Khan, a citizen and resident of Canada, travelled from Canada to the US to visit Jericho, New York. Khan was scheduled to take his return flight to Toronto aboard Delta Airlines Flight 5108 departing from John F. Kennedy Airport in New York. Because Delta failed to arrange a wheelchair for him, when Khan arrived in Toronto, he walked to the baggage area where he subsequently fell and fractured his hip. Thereafter, Khan initiated an action in the District Court for the Eastern District of New York asserting claims under the Montreal Convention and New York law.30 The District Court sua sponte raised the issue of forum non conveniens and ultimately dismissed the case on that ground, subject to the following conditions: should a Canadian court refuse to exercise jurisdiction, or the defendants refuse to submit to jurisdiction exercised by a Canadian court, the plaintiff may move the District Court to reopen this action. The District Court concluded that the text of the Montreal Convention unambiguously allows the court to employ its own procedural rules, which include the doctrine of forum non conveniens.

28 re West Caribbean Airways, supra note 5 at 1305. 29 Ibid at 1312. 30 Mahmood Khan v Delta Airlines, Inc. and Comair, Inc., 2010 WL 3210717 (EDNY 2010).


It is noteworthy that the Khan court, like the West Caribbean court, explicitly declined to follow the Hosaka decision. The court thoughtfully pointed out that, unlike today, at the time the Warsaw Convention was drafted, the doctrine of forum non conveniens was not firmly established as a procedural doctrine in the majority of the signatory countries. This was a key factor in the Hosaka court finding an ambiguity in the treaty and reaching the conclusion that it did.

3. THE 2010 RE AIR CRASH OVER THE MID-ATLANTIC LITIGATION: FORUM NON CONVENIENS IS AVAILABLE UNDER THE MONTREAL CONVENTION

The crash occurred on 1 June 2009, when an Air France Airbus A330 went missing over the Atlantic Ocean on a flight from Rio de Janeiro, Brazil to Paris, France. Of the 228 passengers and crew who perished in the crash, all were French citizens except for two Americans living abroad. The motion to dismiss for forum non conveniens in the District Court for the Northern District of California was granted in favour of a French forum.31

What is significant about this decision is that this District Court was bound by the rulings of the US Court of Appeals for the Ninth Circuit, which previously held in Hosaka that under the Warsaw Convention, forum non conveniens was contrary to the Treaty's purpose of allowing plaintiffs flexibility in choice of forum. Still, citing the recognition of the doctrine at the time the treaty was enacted and comments from the drafting history, the District Court in the Air France crash case distinguished the Ninth Circuit’s decision in Hosaka and found that forum non conveniens should be considered in a Montreal Convention case.32 As can be seen from the three cases discussed above, US courts had consistently upheld the availability of forum non conveniens under the Montreal Convention prior to the Cour de Cassation decision handed down in December 2011. Since 2012, despite the French high court’s decision, a US court upheld the availability of forum non conveniens in the Delgado case.33

31 In re Air Crash Over the Mid-Atlantic on June 1, 2009, 760 F Supp (2d) 832 (ND Cal 2010). 32 Ibid. 33 Delgado v Delta Air Lines, Inc., 43 F Supp (3d) 1261 (SD Fla 2013) [Delgado].


IV. AN EVALUATION OF WEST CARIBBEAN AND THE COUR DE CASSATION DECISION UNDER INTERNATIONAL LAW

An overview of US judicial opinions across the board about the availability of forum non conveniens under the Warsaw and Montreal Conventions has set the stage for a high-level evaluation of the Cour de Cassation’s decision according to treaty interpretation principles under international law, as compared to that in West Caribbean.

A. TREATY INTERPRETATION UNDER INTERNATIONAL LAW

The general rule of interpretation laid down in Article 31 of the Vienna Convention on the Law of Treaties (the Vienna Convention) adopts a textual approach:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Under international law, the text of the treaty is normally the only authentic and the most recent expression of what the parties intended, and consequently interpretation may be thought of as essentially a textual matter.34 Although neither the US nor France is a party to the Vienna Convention, a textual approach is an accepted part of customary international law. If the application of the basic rule of interpretation (the textual approach) establishes a clear and reasonable meaning, then there is no need to have recourse to other means of interpretation. However, if the application of the basic rule leaves the meaning ambiguous or obscure, or if it leads to results which are manifestly absurd or unreasonable, recourse may also be had to supplementary means of interpretation, which include various discretionary aids, such as:

34 See Lassa Oppenheim, Robert Jennings & Arthur Watts, Oppenheim's International Law, 9th ed (Harlow: Longman, 1992) at 1271.


1. The travaux préparatoires – a record of the negotiations preceding the conclusion of a treaty, the minutes of the plenary meetings and of committees of the Conference which adopted a treaty, the successive drafts of a treaty, and so on; and

2. if the meaning of a provision is ambiguous, and one of the parties at a time before a case arises for the application of the provision makes known what meaning it attributes to it, another party cannot, when a case for its application does occur, insist upon a different meaning unless it has previously taken necessary steps (such as protest) to rebut the implication that it has acquiesced in the meaning put forward. 35

B. TREATY INTERPRETATION UNDER THE US LAW

The principles of treaty interpretation under US law are well aligned with those under international law articulated in the classic text of Oppenheim’s International Law. US courts begin with the text of the treaty and the context in which the written words are used. Where the text of the treaty is clear, courts have no power to insert a reinterpretation.36 General rules of construction may be brought to bear on difficult or ambiguous passages. Moreover, treaties are construed more liberally than private agreements, and to ascertain their meaning the US courts may look beyond the written words, such as to the history of the treaty, the negotiations, and the practical construction adopted by the parties.37 In addition, the US Supreme Court held that “absent a clear and express statement to the contrary, the procedural rules of the Forum State govern the implementation of the treaty in that State”.38

C. THE WEST CARIBBEAN COURT CLOSELY

FOLLOWS TREATY INTERPRETATION PRINCIPLES UNDER INTERNATIONAL LAW

Consistent with established international and US treaty interpretation principles, the West Caribbean court (Judge Ursula Ungaro) started with a textual analysis. The West Caribbean court noted that Article 33 of the Montreal Convention “expressly provides that questions of procedure shall be governed by the law of the forum”,39 and found the above language to be:

35 Ibid at 1278-1282. 36 See Chan v Korean Air Lines, Ltd., 490 US 122 (1989). 37 See Eastern Airlines, Inc. v Floyd, 499 US 530 (1991). 38 Breard v Greene, 523 US 371 (1998). 39 In re West Caribbean, supra note 5 at 1310.


unambiguous and dispositive: since the doctrine of forum non conveniens was firmly entrenched in the procedural law of the US by the time the Montreal Convention was drafted, the text by implication clearly permits the application of the doctrine in US domestic litigation.40

In addition, the West Caribbean court went the extra mile to fulfill its:

responsibility to interpret Article 33 consistently with the shared expectations of the contracting parties. Accordingly, the Court considers […] whether the historical context in which the Convention was drafted, the purpose, the drafting history, the post-ratification understanding of the contracting parties, if any, and the meaning accorded to Article 33 by the agencies responsible for its negotiation and enforcement, support the conclusion that forum non conveniens may be employed in Montreal Convention cases pursuant to Article 33(4).41

The West Caribbean court confirmed the textual analysis with an analysis of the intention of the drafters of the Montreal Convention. The Court found that the drafters did not view forum non conveniens as repugnant or incompatible with the Montreal Convention's jurisdictional provisions, and no proposal was made to preclude its application in the Montreal Convention cases. Instead, delegates considered various proposals that would have expressly sanctioned the use of forum non conveniens. Ultimately, however, the delegates did not reach a consensus on the issue due to fears that an express codification would be interpreted as requiring countries unfamiliar with the doctrine to apply it, while absence of such language indicated that courts familiar with the doctrine could and would continue to apply it in the Montreal Convention and other cases. In particular, the Court also considered the US government’s Statement of Interest filed in this regard, i.e., “[a]lthough not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight”. 42 The Statement of Interest makes clear that the US did not relinquish the ability of its courts to apply forum non conveniens in Montreal Convention cases because it and its component agencies are often named in suits arising under the Convention. Further, the US has a

40 Ibid. 41 Ibid at 1311. 42 Sumitomo Shoji America, Inc. v Avagliano, 457 US 176 (1982).


significant interest in avoiding forum shopping and congestion in its courts when a foreign forum provides a more just, convenient and suitable alternative. Accordingly, the US understands the text of Article 33(4) to mean that the Montreal Convention “defers to the forum's laws on all questions of procedure and manifests an intent by the drafters not to alter the judicial system of any country on questions of procedure”.43 In other words, as forum non conveniens is a procedural tool in the US, the Montreal Convention does not preclude the application of the doctrine to cases in courts of States adhering to the doctrine.

D. THE COUR DE CASSATION ’S DECISION DOES NOT APPEAR TO FOLLOW TREATY INTERPRETATION PRINCIPLES UNDER INTERNATIONAL LAW

The Cour de Cassation relied upon the language of Articles 33 and 45 of the Montreal Convention, which provide that an action for damages must be brought “at the option of the plaintiff”. Based on a rigorous application of these rules, the Cour de Cassation found that because plaintiffs in this case had chosen to litigate in America, the French lower courts erred in determining that they had jurisdiction to hear the plaintiff’s claims. The Cour de Cassation further found that an internal rule of procedure that contradicts the plaintiff's selected forum (i.e., a forum non conveniens dismissal) is improper, and once a plaintiff has made a choice of forum, “the other courts designated by the Montreal Convention are definitely devoid of the possibility of ruling on the dispute and must consequently waive exercising their jurisdiction”.44 The Cour de Cassation concluded that the plaintiff's choice of one of the competent jurisdictions enumerated in the Montreal Convention has an “imperative and exclusive character”45 such that it deprives all other competent jurisdictions of their power to rule on the plaintiff's claim. By the Cour de Cassation's interpretation, no foreign “internal rule of procedure”, 46 forum non conveniens included, can strip the plaintiff of that right. Accordingly, the Cour de Cassation declared the “unavailability of the French venue”.47

43 West Caribbean, supra note 5 at 1238. 44 Galbert, supra note 11. 45 Mendelsohn & Ruiz, supra note 9 at 305. 46 Ibid at 306. 47 Ibid at 311.


E. THE COUR DE CASSATION’S DECISION FAILED TO CONSIDER THE TRAVAUX PRÉPARATOIRES

The Cour de Cassation’s decision did not address the travaux préparatoires of the Montreal Convention, which was analysed in great detail by the West Caribbean court. The later Court noted that the historical context of the Montreal Convention reflects that, by the time the Treaty was drafted, the doctrine was widely understood to be a procedural device frequently employed in the United States courts.48 In particular, during the Conference discussions, the US delegate made it crystal-clear that the US intends to continue applying forum non conveniens under the Montreal Convention. The US delegate also submitted a position paper explaining that:

[t]he primary purpose of forum non conveniens is to allow a court to resist impositions upon its jurisdiction and to protect the interests of parties to the litigation by adjudicating the claim in the most suitable and convenient forum.49

Although the French delegate raised concerns about adding the fifth jurisdiction (Article 33(2) of the Montreal Convention) and its implications for forum shopping, the French delegate never expressed objection to the availability of forum non conveniens in those countries where such a doctrine was already part of their domestic civil procedural law, including the United States. 50 According to the treaty interpretation principle mentioned earlier, France cannot claim now that it objects to US use of the doctrine of forum non conveniens in Montreal Convention cases.

Had the Cour de Cassation followed the treaty interpretation principles under international law and fully considered, as the West Caribbean court did, the Montreal Convention’s historical context, purpose, drafting history and post-ratification understanding of the contracting parties, it might well have reached a different conclusion. Precisely as Professor Allan Mendelsohn articulated:

48 See generally Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure 3rd ed (St. Paul: West Group, 2007) vol 14 D § 3828; American Dredging Co. v Miller, 510 US 443 (1994) (noting that forum non conveniens is a doctrine of procedure rather than substance). 49 re West Caribbean, supra note 5 at 1318. 50 See ibid at 1317-18.


[t]he failure of the Cour de Cassation to mention, much less carefully examine, the travaux préparatoires of the Montreal Convention in such a highly litigated and controversial case cannot but be viewed as an example of judicial irresponsibility.51

F. THE COUR DE CASSATION’S DECISION FAILED TO

CONSIDER PRIOR US COURT DECISIONS Not only had the US diplomatic delegation made it clear in the negotiation process that the US intended to continue to apply the doctrine of forum non conveniens, but, as detailed in the previous section, the US courts had also a history of employing the forum non conveniens to dismiss cases in favour of foreign courts under both the Warsaw and Montreal Conventions. Meanwhile, there was no evidence suggesting that during the negotiations and after the ratification and entry into force of the Montreal Convention, France took steps to protest against or to rebut the implication that it was acquiescing in the meaning put forward by the US delegation. Therefore, even if the meaning of Article 33(4) might be ambiguous, long before a case arose for the application of the provision, the US had made it known that the meaning of “procedure” under Article 33(4) would include the forum non conveniens doctrine. France cannot, therefore, insist upon a different meaning when a case for its application does occur. Furthermore, the basis on which the Cour de Cassation arrived at its conclusion has been argued in the US courtrooms and rejected by the US federal Court of Appeals as early as the 1980s.

In the Pan American air crash litigation, the Court of Appeals held that the “option of the plaintiff” language in Article 28 of the Warsaw Convention did not grant plaintiffs an absolute and inalterable right to choose a national forum in which their claims would be litigated.52 The Court of Appeals held that Article 28(1) of the Warsaw Convention offers an injured passenger or his representative four forums in which a suit for damages may be brought: where the carrier is ordinarily resident, or has its principal place of business, or has an establishment where the contract was made or at the place of destination. The party initiating an action enjoys the prerogative of choosing between these possible national forums but the selection is not inviolate. The choice is subject to the procedural

51 Allan Mendelsohn, “The United States vs. France: Article 33 of the Montreal Convention and the Doctrine of Forum Non Conveniens” (2012) 77 J Air L & Com 467 at 477. 52 See Katherine R Dieterich, “Forum Non Conveniens and the Warsaw Convention: Leaving the Turbulence Behind?” (2005) 33:4 Hofstra Law Review 1507.


requirements and devices that are part of that forum's internal laws.53

In West Caribbean, the plaintiff employed almost exactly the same argument. The US District Court rejected this argument again. Similarly, the West Caribbean court explicitly rejected the idea that the Montreal Convention conferred an inalienable right to passengers to choose a forum, another basis of the Cour de Cassation’s decision.

G. THE COUR DE CASSATION’S DECISION FAILED TO

FULLY CONDUCT A TEXTUAL ANALYSIS As the Hosaka court correctly pointed out, the Montreal Convention uses “portée” and “intentée” in a manner that undermines the Milor 54 court's analysis. In adopting its interpretation of Article 28 of the Warsaw Convention, the Milor court deemed it significant that the governing French text uses the word “portée” in Article 28(1) where it states that an action must be “brought” in one of the competent jurisdictions, while using the word “intentée” in Article 29 governing the timeliness of the lawsuit, where it states that an action must be “brought” within two years. It is a sound principle of treaty construction that where the drafters used two different words it “implies that the drafters of the Convention understood the word[s] […] to mean something different [...], for they otherwise logically would have used the same word in each article”.55 Applying this principle, the British court in Milor reasoned that the use of “intentée” in Article 29 must convey a “narrow meaning” of “brought”, namely “initiated”, whereas the use of “portée” in Article 28 must carry a “broader meaning”, namely “commenced and pursued”.56 The latter meaning, Milor reasoned, would foreclose a forum transfer. In other words, according to the British court, the use of two different words implies that the term “portée” requires the action to be litigated entirely in the forum selected by the plaintiff. Article 33(1) of the Montreal Convention, designed to replace Article 28(1) of the Warsaw Convention, states that “[a]n action for damages must be brought, at the option of the plaintiff”, in one of four jurisdictions, and uses the word “portée”, just like the 1929 treaty.57 Article 33(2) states that “[i]n respect of damage resulting from the death or injury

53 See Smith v Canadian Pacific Airways, Ltd., 452 F (2d) 798 at 800 (2d Cir 1971). 54 Milor S.R.L. and Others v British Airways Plc., [1996] QB 702 [Milor]. 55 Air France v Saks, 470 US 392 (1985). 56 Milor, supra note 54 at 707. 57 Montreal Convention, supra note 3, art 33.


of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory....”. The French text of this provision uses “intentée” rather than “portée”. Therefore, the logic of textual analysis on which Milor relied, if followed to analyse the Montreal Convention, would appear to yield an opposite outcome.

V. THE EFFECTS OF THE COUR DE CASSATION’S DECISION ON FORUM NON CONVENIENS IN THE US COURTS

International comity ordinarily requires the courts of one State to defer to foreign courts on the interpretation of the jurisdictional statutes of the latter. In this case, forum non conveniens is a US common law rule, but the availability of the doctrine is based on the US district court’s interpretation of an international treaty. Under international law, States are entitled to interpret treaty provisions when their meaning is ambiguous. French and American courts might reach different conclusions, but this merely reflects the realities of an international treaty being analysed by various sovereign nations under their own guiding principles. Clearly, neither court is bound by the analysis of the other.

A. US COURTS STILL HELD FORUM NON CONVENIENS

AVAILABLE UNDER THE MONTREAL CONVENTION AFTER THE COUR DE CASSATION DECISION

By refusing to exercise jurisdiction on the grounds that the plaintiffs initially selected the United States to litigate their claims, the Cour de Cassation stands in direct conflict with the Court of Appeals for the Eleventh Circuit. As noted above, while the Cour de Cassation may interpret the Montreal Convention as it sees fit, the US courts are not obligated to accept that interpretation. 58 The Court of Appeals for the Eleventh Circuit still found that France was an adequate alternative forum for passenger's survivors' wrongful death claims against the airline, even though France's highest court had ruled that forum non conveniens dismissals were improper and despite the fact France would not recognise pre-trial discovery work already accomplished by the parties.

58 See Osorio v Dole Food Co., 665 F Supp (2d) 1307 at 1325–26 (SD Fl. 2009) (denying recognition of a Nicaraguan judgment, finding that “Nicaraguan law cannot prescribe the legal effect that defendants' actions in Nicaragua will have in United States courts. Nicaraguan law can only determine what effect such actions will have in Nicaragua's own courts”.).


In Delgado, in May 2012, Mr. Delgado, a US citizen on a trip from Southern Florida to Paris, fell down a portable staircase while disembarking from Air France Flight 695 at Charles de Gaulle Airport. The fall caused Mr. Delgado to suffer an extensive head trauma, which led to his death in a French hospital shortly thereafter. His survivors brought a wrongful death suit against the defendant Delta Air Lines Inc., pursuant to the Montreal Convention in a United States district court. Plaintiffs alleged that even though Air France operated the flight from Miami to Paris, Mr. Delgado purchased his ticket in the US through Delta and, as a result, Delta was bound by the contractual code-share agreement with Air France and was required to accept the responsibility for the entire journey. Delta moved to dismiss on forum non conveniens grounds.59 Although the Delgado court ultimately decided that a dismissal on forum non conveniens grounds was not warranted, it recognized that forum non conveniens is available under the Montreal Convention. The Delgado court expressed doubt as to the ability of the plaintiffs to reinstate their suit in France without an “undue inconvenience or prejudice” after a forum non conveniens dismissal. However, the Court did not expand its discussion, much less rely on this issue to reach its conclusion. The Court pointed to other factors that weighed against a dismissal, including the fact that plaintiffs were US citizens, the suit was brought in their home forum,60 the case had been pending in a US court for over a year, the discovery was closed, the trial was imminent, and relevant reports had already been translated from French into English.

B. COMPARISON WITH BLOCKING STATUTES

The likely effects of the Cour de Cassation’s decision on US courts can be predicted based on US courts’ reactions to the blocking statutes enacted by Latin American and Asian countries in an attempt to ensure that their citizens suing US companies in US courts would not have their cases dismissed by US courts on forum non conveniens grounds. The Cour de Cassation determined that, pursuant to the Montreal Convention, a plaintiff's unilateral choice of forum strips all other Convention fora of the jurisdiction. Similarly, the blocking statutes at issue blocked jurisdiction in one forum based on the plaintiff's decision to litigate in another, i.e., the US. The US courts were particularly critical of the “unilateral” choice the

59 Delgado, supra note 31. 60 See Piper Aircraft Co. v Reyno, 454 US 235 at 255 (1981) (there is ordinarily a strong presumption in favour of a plaintiff's choice of forum, especially where that forum is its home forum).


blocking statutes afforded the plaintiffs.61

1. BLOCKING STATUTES A blocking statute is a law that closes the doors of a foreign country's courts in order to prevent a US court from finding that an alternative and available forum exists under the forum non conveniens doctrine. Several countries in Latin America, such as Costa Rica, Dominica, Ecuador, Guatemala, Honduras, Nicaragua, and Venezuela, as well as the Philippines in Asia, have enacted blocking statutes designed to counter dismissals of transnational tort actions brought by those countries’ citizens in US courts against US defendants. The plaintiff will be able to argue in the US court that, under the factors to be considered in deciding a motion to transfer, there is no “feasible, alternative forum,” because the US court is presumptively blocked from transferring a case to any of these fora. Accordingly, the plaintiff will contend that the suit must remain in the US.

These statutes are based on a Latin American Parliament “Model” statute, which provides:

Model Law on International Jurisdiction and Applicable Law to Tort Liability Art. 1 National and international jurisdiction. The petition that is validly filed, according to both legal systems, in the defendant’s domiciliary court, extinguishes national jurisdiction. The latter is only reborn if the plaintiff desists of his foreign petition and files a new petition in the country, in a completely free and spontaneous way. Art. 2 International tort liability. Damages. In cases of international tort liability, the national court may, at the plaintiff’s request, apply to damages and to the pecuniary sanctions related to such damages, the relevant standards and amounts of the pertinent foreign law.62

61 See Scotts Co. v Hacienda Loma Linda, 2 So (3d) 1013 (Fla App 3 Dist, 2008) (affirming that “a foreign plaintiff will not be accorded unilateral authority regarding choice of forum simply by filing first in the United States”). 62 For the text of the Model Law on International Jurisdiction and Applicable Law to Tort Liability, see “Forum non conveniens”, online: Boudreau & Dahl <www.boudreaudahl.com/en_fnc_parlatino.html>.


2. US COURTS HAVE CONSISTENTLY HELD FORUM NON CONVENIENS TO BE AVAILABLE DESPITE BLOCKING STATUTES.

Denying a motion to dismiss based on another country’s blocking statute permits foreign law to trump the doctrine of forum non conveniens. But is it correct for a foreign country to be able to dictate which cases a US court must hear? Where a forum non conveniens dismissal is concerned, American courts do not blindly accept foreign jurisdictional rulings or laws that purport to render an alternative forum unavailable. Both state and federal courts have refused to recognise foreign laws that aim to make the home forum unavailable because of a prior US filing.

In Scotts, a Panamanian corporation brought a product liability suit against a foreign manufacturer in a Florida state court. The court dismissed the case but retained jurisdiction in the event that the Panamanian court declined to hear the case. 63 At the time the Scotts lawsuit was filed in Panama, Panama enacted a law titled Special Procedure for Resolving International Disputes. Article 1421-J of the legislation purports to block any transfers based on forum non conveniens:

Suits brought in this country as a result of a foreign judgment of forum non conveniens preclude domestic jurisdiction. Thus, they must be rejected ex officio for lack of jurisdiction for constitutional reasons or based on provisions of preventive jurisdiction.64

Pursuant to this statute, the Panamanian court declined to exercise jurisdiction over the plaintiff's claim. 65 The plaintiff then returned to Florida and successfully moved to reinstate its case. On appeal, the Third District Court of Appeal of Florida reversed the trial court's order reinstating the case. It found that Panama remained an available forum in spite of the Panamanian court's ruling declining the jurisdiction. 66 It reasoned:

63 Scotts, supra note 61. 64 Cited in Scotts, supra note 61. 65 Ibid at 1015–16. 66 Ibid at 1017–18.


[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. Further, that plaintiff may not assume that a foreign country's preemption or blocking laws will be recognized here. If the foreign country chooses to turn away its own citizen's lawsuit for damages suffered in that very country, and if the other Kinney factors warrant dismissal here, it is difficult to understand why Florida's courts should devote resources to the matter.67

The Court held that:

Florida simply cannot become a courthouse for the entire world, our taxpayers should not pay for the resolution of lawsuits that are utterly unconnected to this state's interests […] The case plainly belongs in Panama [and US] courts cannot be compelled by other countries' courts and lawmakers to resolve cases that should be determined in those countries.68

In Del Istmo Assurance Corp. v. Platon,69 the plaintiff contended that Panama was not an adequate forum because if the case were dismissed on forum non conveniens grounds, Article 1421–J of the Panama Rules of Civil Procedure would preclude the plaintiff from reinstating its suit against the defendants in Panama.70 The United States District Court for the Southern District of Florida (the same court that decided the West Caribbean case and later the Delgado case) found that it was unclear that Article 1421–J would deny the plaintiff the opportunity to try its case in Panama. Furthermore because the defendants, Platon and Italkitchen, both consented to the jurisdiction in Panama, the court found that Panama was an available forum.

These cases, although not Montreal Convention cases, illustrate that the validity of an American court's forum non conveniens dismissal is not entirely dependent on the alternate forum's jurisdictional decisions. Rather, even where there is a barrier to jurisdiction in the alternate forum, US courts will make an independent evaluation of that alternate forum’s availability, informed by the circumstances and context. This is true even where refusing to reinstate the case may potentially leave plaintiffs without a forum.

67 Ibid at 1018 [emphasis in the original]. 68 Ibid at 1017. 69 Del Istmo Assurance Corp. v Platon, 2011 WL 5508641 (SD Fl 2011). 70 Ibid.


C. THE COUR DE CASSATION’S DECISION HAS

LIMITED PRECEDENTIAL VALUE

American lawyers are used to the stare decisis principle, according to which the US Supreme Court decisions always become binding precedents on lower court cases. Only an act of Congress or a later Supreme Court decision can change the established precedent. When and if this logic is applied to the Cour de Cassation's decision in question, it would seem that the Cour de Cassation may well have set the precedent for French lower courts, and that in the future all French courts may well hold that forum non conveniens is not available under the Montreal Convention. It is important to recognise, however, that there is no stare decisis doctrine under French law. For lower courts, Cour de Cassation’s decisions have a normative force at best, but are by no means binding. This is a characteristic of the French civil law system, which adheres to a tradition that judges simply apply statutory law to the facts of the case, but judges do not make precedential law, not even the judges at the Cour de Cassation. Therefore, the Cour de Cassation’s decision in the West Carribean case is merely a conclusion drawn by the Cour de Cassation judges in this specific judicial process, and nothing more. The decision does not become part of French law, and has little or no precedential value. The only scenario in which the Cour de Cassation’s decision may become a more persuasive precedent for lower court cases is where there is a long line of cases in which the Cour de Cassation has consistently ruled in the same way on a particular issue. It is outside the scope of this paper to examine the Cour de Cassation’s ruling history, but it does not appear that there has been any established precedent under French law on the issue of the availability of forum non conveniens under the Montreal Convention, as both the trial court in Martinique and the French appellate court had reached an entirely opposite conclusion before the Cour de Cassation handed down its decision. Despite the Cour de Cassation’s decision in West Carribean, when a similar situation arises in the future, the French courts may very well reach an entirely different conclusion from the Cour de Cassation and, without the intervention of the French government or legislation, hold that forum non conveniens is available under the Montreal Convention. In anticipation of this possible outcome, the US courts will be even less hesitant to dismiss cases to France on forum non conveniens ground.


VI. CONCLUSION In light of both treaty interpretation principles under international law, and judicial decisions in the US over the past decade, forum non conveniens, as a doctrine deeply embedded in the US civil procedural law, has always been available under the Montreal Convention, and rightly so. Even though there is currently a circuit split in the US with respect to its availability under the Warsaw Convention, such a discrepancy will be less and less important as the entire world and the vast majority of international air traffic transitions to be governed by the Montreal Convention regime in the coming years. As summarised by the Scott court in the context of a blocking statute, foreign plaintiffs suing in the US need to be advised that US courts are not in a position to spend precious judiciary time and resources on foreign plaintiffs’ lawsuits that are “utterly unconnected” to the United States. US courts do not like foreign plaintiffs manipulating the US judicial system, infringing upon its discretion and not complying with its orders in good faith. On the other hand, if US courts reinstated such cases, then forum non conveniens would be a meaningless doctrine since each plaintiff would be able to do exactly what the plaintiffs in the West Caribbean case did – sabotage their own case. Therefore, it is highly probable that, despite the Cour de Cassation decision, US courts will continue to find forum non conveniens available under the Montreal Convention to dismiss cases in favour of a French forum and that French courts should be deemed— and should deem themselves to be— available fora.

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