[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15828 Oct. 8, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-61165-CV-UU
ANNICK JOELLE PIERRE-LOUIS,
ANTOINE VINCENT GUYARD,
THIBAUD GUYARD, a minor, by
his father Antoine Vincent Guyard, individually as
heirs of Abdon Joesph Pierre-Louis, deceased and individually
as heirs of Lawrence Pierre-Louis, deceased,
LEON NOEL EDMOND LORNE,
MELANIE SUZIE MARTINE, a minor, by her mother Marie-Nelly
Martie individually as heirs of Serge Nal, deceased.
Plaintiffs-Appellants,
versus
NEWVAC CORPORATION,
a Florida corporation,
GO 2 GALAXY, INC.,
a Florida corporation,
WEST CARIBBEAN AIRWAYS, S.A.,
a Columbian corporation,
Defendants-Appellees.
________________________
No. 07-15830
________________________
D. C. Docket No. 06-61813-CV-UU
SYLVIA BAPTE,
Individually and as personal representative
of the Estates of CHRISTIANE BAPTE, deceased,
and SYLVAIN BAPTE, deceased,
STEPHANIE ISABELLE BAPTE,
AUBIN CASIMIR,
MARYVONNE BAPTE, et. al.,
Plaintiffs-Appellants,
versus
NEWVAC CORPORATION, a Florida corp.,
GO 2 GALAXY, INC., a Florida corp.,
WEST CARIBBEAN AIRWAYS, S.A., a Columbian Corp.
Defendants-Appellees.
________________________
No. 07-15902
________________________
D. C. Docket No. 06-22748-CV-UU
HENRI GALBERT, as personal representative of the
Estate of Nicolas Massal, Deceased, et al.,
Plaintiffs,
2
NICOLAS MASSAL, MURIELLE MASSAL, MAEVA MASSAL,
JOSEPH GALBERT, MARIE GALBERT, JOACHIM-ARNAUD,
PAUL BERISSON, GEORGES BERISSON, RAPHOSE,
MARIE LUCE, JOSEPH BONIFACE, SCAGLIONI, LANOIR,
MONTLOUIS FELICTE, ALEX PETERS, BERTON,
RAPHAELLE COUFFE, ROBERT COUFFE, MARIE PETERS,
VIOLTON, SOHAN VENTAKAPEN, MICHEL VENTAKAPEN,
EUDARIC, BERTIN MARIE-LUCE, CHARLES CABRERA,
ROSAMOND, CATHERINE CABRERA, DENIS RAMIN,
LAURENCE RAMIN, DURANVILLE, HENRI HOSPICE,
ADREE HOSPICE, MAQUIABA, VICTORIN, IPHAINE,
LEGENDART, BERMONT, FLORINE, LAURENT, MAGLOIRE,
SAINTE-ROSE, ANTISTE, JEREMIE BOCLE, NAL,
DIJON, PEPINTER, PORRO, BAPTE, TAUPIN,
Plaintiffs-Appellants
Cross-Appellees,
THE ESTATE OF FRANCIS BERTON,
THE ESTATE OF MARIE-PIERRE CADARE,
THE ESTATE OF RAPHAELLE COUFFE,
MARIE-ODILE MONLOUIS-FELICITE,
THE ESTATE OF DAVID SCAGLIONI,
Plaintiffs,
versus
WEST CARIBBEAN AIRWAYS, a Colombian corporation,
ASEGURADORO COLSEGUROS, S.A., a Colombian
corporation,
Defendants-Appellees,
NEWVAC CORPORATION, a Florida corporation,
GO 2 GALAXY, INC., a Florida corporation,
JAQUES CIMETIER, individually,
3
Defendants-Appellees
Cross-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(October 8, 2009)
Before BARKETT and HULL, Circuit Judges, and QUIST,* District Judge.
BARKETT, Circuit Judge:
This consolidated appeal arises from several wrongful death actions brought
by the survivors of passengers killed in the crash of a McDonnell Douglas MD-82
aircraft, operating as West Caribbean Airways Flight 708, in the mountains of
Venezuela. All of the appellants/cross-appellees, plaintiffs in the proceedings
below (“Plaintiffs”), are natural persons and residents of Martinique, a Department
of the Republic of France, and represent the deceased passengers of Flight 708.1
The appellees/cross-appellants, defendants below (“Defendants”), are (1) West
Caribbean Airways, a Colombian corporation operating the chartered plane that
crashed, (2) two Florida Corporations, Newvac and Go 2 Galaxy, Inc., and (3) the
*
Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
1
The crew members of Flight 708 are not plaintiffs in this action and have filed a
separate action in the Southern District of Florida.
4
president of Newvac and Go 2 Galaxy, Jacque Cimetier.2 Newvac is the entity that
chartered the West Caribbean plane for round-trip flights from Martinique to
Panama. After entering into the charter contract with West Caribbean, Newvac
contracted with Globe Trotter Agency, a Martinique travel agency, and agreed to
provide the aircraft it had chartered, as well as hotel, transportation, and
sightseeing services, for excursions between Martinique and Panama. These
excursion packages were then to be sold by Globe Trotter to individual passengers
in Martinique.
Newvac moved to dismiss the suit on the basis of forum non conveniens and
the district court granted the motion, finding that Martinique was the more
convenient forum for resolution of the survivors’ claims.3 Plaintiffs appeal that
ruling, arguing that the doctrine of forum non conveniens does not apply because
the international treaty that regulates the liability of carriers to passengers on
international flights, the Convention for the Unification of Certain Rules for
International Carriage by Air (the “Montreal Convention” or “Convention”),
2
We will refer to Newvac, Go 2 Galaxy, and Cimetier collectively as “Newvac.”
3
Defendant West Caribbean Airways filed a motion to dismiss for lack of personal
jurisdiction which has been held in abeyance until the forum non conveniens issue is finally
decided.
5
precludes application of the doctrine as a matter of international law.4
Alternatively, Plaintiffs argue that, even if the Convention permits application of
the doctrine, the district court abused its discretion in applying it here.
I.
The doctrine of forum non conveniens permits a court with venue to decline
to exercise its jurisdiction when the parties' and court's own convenience, as well
as the relevant public and private interests, indicate that the action should be tried
in a different forum. A defendant seeking dismissal for forum non conveniens
bears the burden of demonstrating:
(i) that an adequate alternative forum is available, (ii) that relevant public
and private interests weigh in favor of dismissal, and (iii) that the plaintiff
can reinstate his suit in the alternative forum without undue inconvenience
or prejudice. Pertinent private interests of the litigants include relative ease
of access to evidence in the competing fora, availability of witnesses and
compulsory process over them, the cost of obtaining evidence, and the
enforceability of a judgment. Relevant public interests include the
familiarity of the court(s) with the governing law, the interest of any foreign
nation in having the dispute litigated in its own courts, and the value of
having local controversies litigated locally.
Liquidation Comm'n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339,
1356-57 (11th Cir. 2008) (quotations and citations omitted).
Plaintiffs argue that the district court was precluded from applying this
4
The district court’s conclusions regarding the availability of forum non conveniens
under the Montreal Convention is a legal determination which we review de novo.
6
doctrine by the Montreal Convention, which is the exclusive means by which
international air travel passengers can seek damages for death or personal injury in
cases covered by it.5 Chapter III of the Convention is entitled “Liability of the
Carrier and Extent of Compensation for Damage.” Article 33, located in Chapter
III, is the jurisdictional provision which specifies in which fora such suits can be
brought:
1. An action for damages must be brought, at the option of the plaintiff,
in the territory of one of the States Parties, either before the court of
the domicile of the carrier or of its principal place of business, or
where it has a place of business through which the contract has been
made or before the court at the place of destination.
2. In respect of damage resulting from the death or injury of a passenger,
an action may be brought before one of the courts mentioned in
paragraph 1 of this Article, or in the territory of a State Party in which
at the time of the accident the passenger has his or her principal and
permanent residence and to or from which the carrier operates
services for the carriage of passengers by air. . . .
Thus, under Article 33 of the Convention, suits for damages by passengers
on international flights can be filed in a limited number of fora, including, inter
alia, the domicile of the “carrier” or the principal place of business of the “carrier.”
In the case of damage resulting from the injury or death of a passenger, suit may be
brought in the passenger’s permanent residence if the “carrier” operates air
carriage services to or from that location.
5
Both the United States and France are parties to the Montreal Convention.
7
The term “carrier” is undefined in the Convention. However, Chapter V of
the Convention, entitled “Carriage by Air Performed by a Person other than the
Contracting Carrier,” addresses situations in which there is both a “contracting
carrier” and an “actual carrier.” Article 39, located in Chapter V of the
Convention, provides the definitions for “contracting carrier” and “actual carrier”:
The provisions of [Chapter V] 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.
These definitions are significant because Article 40, in Chapter V, provides that
“[i]f an actual carrier performs the whole or part of carriage which, according to
the contract referred to in Article 39, is governed by this Convention, both the
contracting carrier and the actual carrier shall, except as otherwise provided in
[Chapter V], be subject to the rules of this Convention, the former for the whole of
the carriage contemplated in the contract, the latter solely for the carriage which it
performs.”
In turn, Article 45 provides that a plaintiff may bring an action for damages
under the Convention against the actual carrier or the contracting carrier, or against
8
both together or separately, and Article 46 specifies the fora in which a plaintiff
may bring such a suit. Article 46 provides that “[a]ny action for damages
contemplated in Article 45 must be brought, at the option of the plaintiff, in the
territory of one of the States Parties, either before a court in which an action may
be brought against the contracting carrier, as provided in Article 33, or before the
court having jurisdiction at the place where the actual carrier has its domicile or its
principal place of business.” The district court found that Newvac and/or Go 2
Galaxy was the “contracting carrier” for the flight at issue, and thus the lawsuit
was filed in an appropriate forum pursuant to the Convention.6
The district court next found, however, that although it had jurisdiction, the
Convention did not preclude application of forum non conveniens. In so holding,
the district court relied on Article 33(4) of the Convention, which provides that
“[q]uestions of procedure shall be governed by the law of the court seised of the
case.” The district court reasoned that because the doctrine of forum non
6
Newvac challenges this holding on cross-appeal. We find no merit to this contention.
The district court properly concluded that because “Newvac knowingly assumed the
responsibility to supply the aircraft and crew, and to otherwise conduct itself as a carrier, for the
transportation of Globe Trotter’s customers,” it was a “contracting carrier” within the meaning
of Article 39 of the Montreal Convention. The court correctly rejected Newvac’s argument that
because the actual passengers were not known to Newvac at the time it contracted with Globe
Trotter, Newvac could not be a “contracting carrier” under the Convention. The Newvac-Globe
Trotter contract clearly provided that Globe Trotter would procure passengers for the flights and
tour packages that would be supplied by Newvac and that, once the passengers had been
procured, Globe Trotter would forward their information to Newvac so Newvac could issue the
relevant travel documents, including individual passenger tickets.
9
conveniens is part of United States civil procedure, the Convention unambiguously
permits its application in accordance with the law of the forum. The district court
also concluded that the shared expectation of the states party to the Convention
was that those states which recognized the doctrine could continue to apply it. We
find no error in these conclusions.
When interpreting a treaty, we begin with the words of the treaty in the
context in which the words are used. Volkswagenwerk Aktiengesellschaft v.
Schlunk, 486 U.S. 694, 699 (1988). Plaintiffs concede that the starting point of
treaty interpretation is the relevant text and recognize that the treaty expressly
provides that “[q]uestions of procedure” are governed by the law of the forum in
which the case is validly brought. They argue, however, that because the
Convention does not specifically affirm the availability of forum non conveniens,
it should not be permitted in cases arising under it. We find this argument
untenable for two reasons. First, there is no dispute that forum non conveniens is a
“question[] of procedure” under U.S. law and thus it clearly falls within the ambit
of Article 33(4). Second, under Plaintiffs’ theory, all state procedural rules would
have to be specifically enumerated in order to be applicable under the Convention,
and we do not believe the Convention’s drafters intended such an absurd result.
Plaintiffs further argue that to permit the application of forum non
10
conveniens would undermine the purpose and implementation of the Convention’s
jurisdictional provisions, which have already enumerated the five “convenient”
jurisdictions for purposes of adjudicating international carrier liability. Although
we acknowledge Plaintiffs’ concerns, we think the purpose of the Convention is
adequately safeguarded under traditional forum non conveniens analysis. As the
district court pointed out, forum non conveniens would permit dismissal under the
Convention only if the alternative forum was authorized to hear the case under
Article 33(1) or (2) and was “demonstrably the more appropriate venue.”
We therefore find no ambiguity or limitation in the express language of
Article 33(4), which states in no uncertain terms that questions of
procedure—which can only reasonably be read to include all questions of
procedure—are governed by the rules of the forum state.7 As the district court
correctly noted, the doctrine of forum non convenience is “firmly entrenched in
the procedural law of the United States.” In addition, we are satisfied that a district
court may—where appropriate—exercise its discretion to apply forum non
7
The two cases on which Plaintiffs principally rely, Hosaka v. United Airlines, Inc., 305
F.3d 989 (9th Cir. 2002), and Milor v. British Airways, Plc., [1996] Q.B. 702 (Eng. C.A.), are
distinguishable and do not, as Plaintiffs suggest, create an ambiguity in Article 33(4). Among
other distinguishing factors, both cases involved interpretation of the Warsaw Convention, a
predecessor to the Montreal Convention drafted in 1929, at which time forum non conveniens, in
its current form, was not recognized under U.S. law. Indeed, the Hosaka court explicitly noted
that it was not addressing the applicability of forum non conveniens under the (at the time un-
ratified) Montreal Convention.
11
conveniens, without interfering with the implementation of the Convention, so
long as another Convention jurisdiction is available and can more conveniently
adjudicate the claim.8
II.
Having found that the Convention is not a bar to the application of forum
non conveniens, we turn to Plaintiffs’ alternative argument that the district court
abused its discretion in applying it here. As noted, a party seeking dismissal for
forum non conveniens must demonstrate:
(1) that an adequate alternative forum is available,
(2) that relevant public and private interests weigh in favor of
dismissal, and
(3) that the plaintiff can reinstate his suit in the alternative forum
without undue inconvenience or prejudice.
Plaintiffs do not challenge the district court’s determination that Martinique is an
adequate alternative forum or that they can reinstate their suit in Martinique
without undue prejudice or inconvenience. Rather, Plaintiffs argue that the district
court abused its discretion by failing to adequately analyze the relevant private and
public interest factors. We find no merit to Plaintiffs’ arguments.
8
Contrary to Plaintiffs’ assertions, we think the drafting history of the Convention is
clear that it was the shared intent of the states party that each state could continue to apply its
procedural rules, including forum non conveniens.
12
In determining whether to grant a motion to dismiss for forum non
conveniens, courts consider such private interests as the comparative ease of access
to evidence in the competing fora, the availability of witnesses and compulsory
process over them, and the cost of obtaining evidence. See, e.g., Renta, 530 F.3d
at 1356-57; King v. Cessna Aircraft Co., 562 F.3d 1374, 1383-84 (11th Cir. 2009);
La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983).
Ordinarily, these private factors would weigh in favor of a plaintiff residing
in the forum state and therefore, we apply a presumption of convenience to U.S.
residents suing in U.S. courts. See SME Racks, Inc.v. Sistemas Mecanicos Para
Electronica, S.A., 382 F.3d 1097, 1100-01 (11th Cir. 2004). This deference,
though still applicable, is weakened when plaintiffs are non-U.S. residents. Id.
Plaintiffs argue, however, that although they are not U.S. residents, their choice of
forum is entitled to heightened deference because their access to U.S. courts is
granted by an international treaty with a specific venue provision. The logic of this
conclusion stems from the fact that the Convention has already done part of the
work in selecting a convenient forum–all potential jurisdictions under the
Convention bear some connection, broadly speaking, to the air crash. Thus, their
choice of forum is entitled to greater deference than non-U.S.-resident plaintiffs
not acting pursuant to a treaty. Among other things, Plaintiffs point out that, unlike
13
other defendants who may be surprised by U.S. lawsuits by foreign plaintiffs,
international air carriers are aware of the Montreal Convention and can prepare,
with their insurers, for the possibility of liability under it.
Regardless of the merits of Plaintiffs’ argument on this point, however, the
analysis cannot end with a presumption of convenience, but must address the
actual convenience of the various available fora. See Cessna Aircraft Co., 562
F.3d at 1383 (noting that “although citizenship often acts as a proxy for
convenience in the forum non conveniens analysis, the appropriate inquiry is
indeed convenience”); see also Aldana v. Del Monte Fresh Produce N.A., Inc.,
–F.3d–, No. 07-15471, 2009 WL 2460978, at *9 (11th Cir. Aug. 13, 2009)
(affirming the district court’s dismissal on the basis of forum non conveniens
where plaintiffs were residents of the U.S., but all other private interest factors
favored dismissal). As the district court correctly pointed out, the greater
deference accorded to a U.S. resident follows from the reasonable assumption that
a plaintiff choosing her home forum does so because it is convenient. See Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981).
In this case, as the district court noted, Defendants have conceded liability
and waived applicable damage caps under the Convention in the Martinique court.
Thus, the only issue to be tried—and therefore the principle focus of the
14
convenience analysis—is the amount of damages to which each Plaintiff is entitled.
Therefore, with respect to the availability of evidence and witnesses, the analysis
strongly favors Martinique, the residence of all the Plaintiffs. Plaintiffs do not
dispute that all of the witness and documentary evidence regarding damages, as
well as all or virtually all of the non-party factual witnesses, are located in
Martinique, beyond the compulsory process of the district court. To the extent that
non-party witnesses in Martinique would be willing to testify in Florida, they
would have to travel to the United States at considerable expense and personal
inconvenience.
Plaintiffs counter that any expense or other burden associated with gathering
and producing damages evidence will be theirs to bear, because it is their burden to
prove damages. They further point out that Defendants have offered no details
regarding any actual inability to procure non-U.S. witnesses or evidence on the
damages issue and that, in the days of satellite telephones and inexpensive air
travel, these arguments are entitled to less weight. Although we acknowledge
Plaintiffs’ arguments on this point, we cannot say that the district court abused its
discretion in determining that the United States was an inconvenient forum for
both parties in which to determine damages. In other words, the ability of the
Defendants to prepare their defensive case with respect to damages is a proper
15
consideration in the convenience analysis.9
Nor did the district court err when it rejected Plaintiffs’ argument that
because Defendants’ potential third-party claims against U.S. manufacturers could
more conveniently be brought in the United States, private interest considerations
militated against dismissal.10 Plaintiffs do not contend that the U.S. manufacturers
cannot be impled in an action in Martinique nor that evidence pertaining to such
third-party claims is not available in Martinique.11 Although access to U.S.
9
The district court recently denied a dismissal on forum non conveniens grounds in the
related case brought by the crew members who perished in the same crash as Plaintiffs. In re
West Caribbean Crew Members, 632 F. Supp. 2d 1193 (S.D. Fla. 2009). Plaintiffs point out that
the crew members, like Plaintiffs, are non-U.S. residents, and therefore litigation of their claim
in a U.S. court gives rise to the same evidence issues the district court relied upon in dismissing
their case on forum non conveniens grounds. We disagree. The crew member claims are
product liability claims and thus are distinct from Plaintiffs’ claims under the Montreal
Convention, pursuant to which liability is presumed. We are therefore not persuaded that the
district court’s forum non conveniens analysis as to Plaintiffs’ claims is inconsistent with, or
should be affected by, its adjudication of the crew member claims in a U.S. forum.
10
Plaintiffs argue that the process of apportioning liability between the carrier
Defendants and the U.S. manufacturers in France, with its complex evidentiary and translation
issues, will cause them an “inconvenient” delay. However, we are not convinced that such a
delay will be significantly worse in France than in the United States, nor in any event do we
believe that the district court’s rejection of this argument constitutes an abuse of discretion.
Moreover, Plaintiffs’ reliance on Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981) is
somewhat misplaced. In that case, it was Defendants who argued that Plaintiffs’ choice of forum
would prejudice their ability to implead third parties, and the Supreme Court agreed that it was
more convenient to resolve all claims in one forum. Here, of course, Defendants have proposed
the alternative forum.
11
Plaintiffs argue that it is not their burden to demonstrate that evidence regarding third-
party claims will be accessible in Martinique, Leon v. Million Air, 251 F.3d 1305, 1311 (11th
Cir. 2001), and that the district court impermissibly shifted the burden of persuasion to Plaintiffs
to demonstrate why Martinique would be inconvenient to them. While it is true as a matter of
law that Defendants bear the burden of persuasion on forum non conveniens, we are not
persuaded by this argument. The district court’s observation that Plaintiffs would not be
16
manufacturers’ evidence is admittedly somewhat more difficult in a foreign forum
as opposed to the United States, the district court did not abuse its discretion in
finding that this burden—which is Defendants alone to bear in any event—was
outweighed by the inconvenience to both parties of accessing damages evidence in
Martinique, respecting over a hundred decedents and their beneficiaries.
Public interest considerations include factors such as (1) the forum’s interest
in entertaining the suit; (2) court congestion and jury duty generated by the lawsuit;
(3) the desirability of having localized controversies decided at home; and (4) the
difficulty in determining applicable law and applying foreign law. La Seguridad,
707 F.2d at 1307. The district court likewise did not abuse its discretion in
determining that these factors weigh in favor of Martinique as the proper forum for
Plaintiffs’ claims.
As the district court pointed out, although the United States has an interest in
deterring the alleged tortious conduct of Newvac and other U.S. third-party
defendants, that interest is outweighed by Martinique’s interest in adjudicating
inconvenienced by litigating third-party claims in Martinique did not impermissibly shift the
burden to Plaintiffs but instead was simply one of many factors to be weighed in assessing the
various private interests of the litigants. And, we agree with the district court that the relative
ease of access to third-party evidence, unlike damages evidence, ultimately will be of concern
only to Defendants.
17
actions that aim to redress injuries to its citizens.12 Moreover, any deterrent impact
on Newvac is not eliminated merely because damages are determined in
Martinique rather than in the United States. Therefore, the United States’ interest
in adjudicating Plaintiffs’ claims does not justify the enormous commitment of
time—both of the court and of jurors—and other judicial resources that would be
consumed by the presentation of live testimony and documentary evidence in a
foreign language. Finally, the district court found that although litigating third-
party claims in Martinique would be more convenient in a U.S. forum than in
Martinique, the burden of translation in Martinique with respect to these claims is
not as great as the burden of presenting French damages evidence in the United
States. This is so because the Martinique court designated to hear Montreal
Convention claims does so in writing only and will not hear testimony. Thus,
Defendants will not bear the burden of translating live testimony in Martinique as
both parties would in the United States.13
12
Plaintiffs argue that Martinique has a state interest in ensuring that the rights of its
citizens to their choice of forum under the Montreal Convention are respected. They further
argue that the United States has a significant interest in deterring corporate misconduct like that
of Newvac, which continues to act as a contracting carrier under U.S. laws. Again, while we
acknowledge the competing public interests at work in this analysis, we do not believe the
district court abused its discretion in crediting the undeniable interest of Martinique in redressing
injuries to its citizens.
13
We are not persuaded by Plaintiffs’ argument that the district court erred in failing to
consider the fact that Defendants made no argument that the congestion factor supports
dismissal. The failure of Defendants to make an argument on this issue is not fatal to their forum
non conveniens argument if, as the district court determined, other factors clearly support a
18
In sum, the district court did not err in determining that the Montreal
Convention does not preclude the use of forum non conveniens in U.S. courts nor
did it abuse its discretion in dismissing Plaintiffs’ claims on forum non conveniens
grounds.
AFFIRMED.
dismissal.
19