January 2011

Court Grants Forum Non Conveniens Dismissal in Adam Air Litigation

Holland & Knight Newsletter
Marc L. Antonecchia

On January 11, 2011, the Northern District of Illinois granted the defendants’ forum non conveniens motion in the multidistrict litigation (MDL) arising out of the 2007 accident of Adam SkyConnection Airlines (“Adam Air”) Flight DHI 574 off the coast of Indonesia.1 The action consolidated in the Northern District of Illinois consisted of three cases brought by the representatives of 52 of the 102 decedents. Prior to consolidation, two of the cases were pending in the Northern District of Illinois and one case was pending in the Northern District of California.

None of the decedents were U.S. citizens or residents, nor are their representatives. The defendants included several U.S. manufacturers, including the aircraft manufacturer, the company in charge of the aircraft maintenance, the alleged owners and lessors of the aircraft, and the manufacturer of the plane’s inertial reference system. Adam Air, a domestic Indonesian air carrier, was not a party.

Indonesia Deemed an Available and Adequate Forum

The court employed the traditional forum non conveniens analysis to determine whether an available and adequate alternative forum existed, and, if so, whether the private and public interests rendered the alternative forum more convenient. Indonesia was an “available” forum because all defendants agreed to consent to the jurisdiction of an Indonesian court as a condition of dismissal. Defendants proffered the affidavit of a purported expert in Indonesian law stating that an Indonesian court would accept this consent. The court found that Indonesia was an “adequate” forum because the plaintiffs would have at least some remedy for their claims under Indonesian law. The court also assessed several newspaper articles proffered by the plaintiffs in support of their argument that the Indonesian judicial system was corrupt. The court found that none of the articles offered concrete proof of corruption, and that the plaintiffs did not explain how generalized corruption would affect their case.2

Private and Public Interest Factors Favor Dismissal

The court found that the private interest factors weighed heavily in favor of the Indonesian forum. Although plaintiffs argued that the relevant proof was located in the United States where the plane and its component parts were manufactured, the argument carried little weight because the defendants agreed to make available all evidence in their possession deemed relevant by the Indonesian forum.

Much of the remaining proof was in Indonesia because of the plaintiffs’ allegations that Adam Air did not have an adequate maintenance program and that its crew and maintenance personnel were not properly trained. These allegations would implicate documents and witnesses in Indonesia concerning Adam Air’s training and maintenance operations and the Indonesian government’s investigation. Adding to the private interest factors weighing in favor of dismissal was that Adam Air never operated in the United States nor had it sought to do so. Thus, the court found that the defendants would be unable to implead Adam Air in the U.S. litigation because the U.S. courts did not have personal jurisdiction. In contrast, the defendants could implead Adam Air in Indonesia.

Assessing the public interest factors, the court found that Indonesia had a greater interest because the crash occurred on an Indonesian domestic flight, operated by an Indonesian domestic air carrier, carrying mostly Indonesian citizens. The court noted that the U.S. Supreme Court and Seventh Circuit have found unpersuasive the principle that a defendant’s home forum always has a strong interest in providing a forum for redress of injuries caused by its citizens in the context of foreign crashes involving U.S.-made planes. The plaintiffs “essentially concede[d]” that the court would have to apply Indonesian law.

The court disregarded the plaintiffs’ contention that there is a strong preference to conduct the litigation in the chosen forum because dismissal “would merely send Plaintiffs, all of whom are Indonesian citizens, back to their home forum.” Citing Seventh Circuit case law, the court held that the presumption in the plaintiff’s favor applies with less force when the plaintiff files suit far from home.

Forum Non Conveniens Dismissal of Other Foreign Accident Litigations This decision echoes other recent forum non conveniens dismissals in foreign aviation accident cases adjudicated in federal court. In October 2010, the U.S. District Court for the Northern District of California granted defendants’ motions to dismiss all claims pending in multidistrict litigation arising from the June 1, 2009 accident of Air France Flight 447 over the Atlantic Ocean.3 There, more than 70 foreign plaintiffs and two U.S. plaintiffs had brought wrongful death actions against the French aircraft manufacturer, the French pitot tube manufacturer and numerous U.S. component part manufacturers.4 In September 2010, the U.S. District Court for the Northern District of Illinois likewise dismissed cases brought against several U.S. manufacturers arising from the May 2007 accident of Kenya Airways Flight 507 in Cameroon during a flight from Doula, Cameroon, to Nairobi, Kenya.5 All 114 passengers and crew members, approximately one-third of whom were from Cameroon, died in the accident. No U.S. citizens or residents were on board the aircraft. As in the Adam Air litigation, the defendants in each of these cases included several U.S. manufacturers and the plaintiffs faced jurisdictional obstacles in suing the foreign air carriers in the United States. These federal cases stand in contrast to several Illinois state court forum non conveniens decisions involving foreign airline accidents. In these cases, the state courts have held that the private and public interest factors weighed against dismissal primarily because of the presence of U.S. manufacturing defendants.6 One of these decisions is on appeal. 

1 In re Air Crash Disaster Over Makassar Strait, Sulawesi, No. 09-cv-3805, MDL 2037, 2011 WL 91037 (N.D. Ill. Jan. 11, 2011).

The court also distinguished a 2005 federal court decision holding that Indonesia was an inadequate forum. In that case, threats of reprisals for the human rights plaintiffs was demonstrated by the disappearance of other human rights activists in Indonesia.

In re Air Crash Over the Mid-Atlantic on June 1, 2009, MDL No. 10-2144-CRB, 2010 WL 3910354 (N.D. Cal. Oct. 4, 2010; motion for reconsideration pending; appeal docketed, No. 10-17568 (9th Cir. Nov. 10, 2010).

Air France, the operator of the aircraft, was sued directly in only one action brought by U.S. plaintiffs involving the deaths of two U.S. citizens living in Brazil at the time of the accident. None of the foreign plaintiffs could sue Air France in the United States under the jurisdictional terms of the Montreal or Warsaw Conventions.

See Pettitt v. The Boeing Company, No. 09 C 3709, 2010 WL 3861066 (N.D. Ill. Sept. 28, 2010); Claisse v. The Boeing Company, No. 09 C 3722, 2010 WL 3861073 (N.D. Ill. Sept. 28, 2010); Patricia v. The Boeing Company, No. 09 C 3728, 2010 WL 3861077 (N.D. Ill. Sept. 28, 2010).

See, e.g., Arik v. Boeing Co., No. 08 L 012539 (Ill. Cir. Ct., Cook Cty. Feb. 18, 2010)(denying dismissal of claims against Boeing and other U.S. defendants arising from a crash in Turkey involving Turkish airline), petition for leave to appeal denied (Ill. App. 1 Dist. Apr. 29, 2010), vacating denial of petition for leave to appeal, 237 Ill.2d 552, 2010 WL 3785535 (Ill. Sept. 29, 2010); Thornton v. Hamilton Sundstrand Corp., No. 1-08-2734 (Ill. App. 1 Dist. Aug. 31, 2009) (affirming denial of forum non conveniens motion in cases arising from crash of a commuter airplane operated by an Australian carrier in Australia); Vivas v. The Boeing Co., 392 Ill. App. 3d 644 (Ill. App. 1 Dist. 2009) (affirming denial of forum non conveniens motion in actions arising from the crash of domestic flight in Peru).

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