Forum Non Conveniens Dismissal Ordered in All U.S. Litigation Arising From Air France Flight 447 Accident

Judge Charles Breyer of the Northern District of California last week issued a significant forum non conveniens dismissal in multidistrict litigation (MDL) arising from the June 1, 2009 accident of Air France Flight 447 over the Atlantic Ocean. More than 70 foreign plaintiffs and two U.S. plaintiffs had brought suit against the French aircraft manufacturer (Airbus S.A.S.), a French component part manufacturer (Thales Avionics, S.A.), and more than one dozen U.S. component part manufacturers for the wrongful death of passengers and flight crew members.

Air France, the operator of the aircraft, was sued directly in only one action brought by the U.S. plaintiffs involving the deaths of two U.S. citizens living abroad 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, which govern an air carrier’s liability for passenger deaths during international carriage. Despite the treaties’ jurisdictional restrictions, certain manufacturers also brought third-party actions against Air France seeking contribution and indemnity for the plaintiffs’ claims.

France: A Superior Alternative Forum

Employing the traditional forum non conveniens analysis, the court determined that France provided an adequate alternative forum for this litigation, and that the balance of private and public interest factors favored dismissal. The plaintiffs notably had not challenged France’s adequacy as an alternate forum, but instead limited their focus on delays by the French courts in handling complex matters. The court noted the plaintiffs’ “concessions” on the issue and cited case law and the declarations of defendants’ expert to conclude that France was indeed an adequate and available forum.

Assessing the private and public interest factors, the court cited numerous other decisions within the Ninth Circuit dismissing aviation accident claims brought primarily by foreign plaintiffs in the United States arising from accidents outside the U.S. during flights operated by foreign carriers. The court notably recognized that although some evidence related to the U.S. component part manufacturers may be located in the U.S., access to relevant liability evidence would be easier in France, which is:

• the situs of the official investigation
• the location of the physical evidence
• the place where all defendants agreed to produce evidence

Additionally, liability evidence relevant to the alleged causes of the accident clearly is located in France where the pilots had been trained and the aircraft had been designed, assembled, manufactured, certified and maintained. The court rejected the plaintiffs’ attempt to “undercut the relevance of this evidence by focusing their inquiry” on only the component parts manufactured in the U.S. The court further noted that, without the “black box,” defendants will need access to all available information regarding the parts, assembly, maintenance and operation of the aircraft to properly defend themselves.

The court also found that the ability to “bring parties together in France in a procedurally sensible fashion” was another private interest that favored dismissal. All of the foreign plaintiffs could sue all defendants in France (including Air France under the Conventions’ jurisdictional provisions), and all cases could be consolidated in France. By dismissing the cases, the court also avoided the “potential tension” with the Conventions’ forum restrictions created by the third-party claims against Air France in cases where treaty jurisdiction in the United States was lacking. The court gave little deference to the foreign plaintiffs’ choice of forum, particularly because counsel for the foreign plaintiffs admitted during oral argument that his clients were “forum shopping.” Although the court stated that the two U.S. plaintiffs were entitled to “considerably more deference,” it held that such deference did not prevent dismissal “where, as here, an adequate alternative forum is available and superior.”

Regarding the public interest factors, the court held that France undisputedly had a much greater interest in this litigation than the United States. Air France, the national carrier of France, was operating the French-manufactured aircraft and the French authorities are conducting the official investigation into the cause of the accident. The aircraft had a plurality of French citizens on board. The court recognized that French law may govern many claims in the case, and dismissal would eliminate a significant burden on U.S. courts and juries.

Montreal Convention Does Not Bar Forum Non Conveniens

In reaching its decision, the court held that the existence of treaty jurisdiction in the United States under the Montreal Convention’s “fifth jurisdiction” did not preclude the court’s application of forum non conveniens. Previously, the Ninth Circuit Court of Appeals in Hosaka v. United Airlines, Inc., 305 F.3d 989 (9th Cir. 2002), had ruled that jurisdiction in the U.S. under the Warsaw Convention, the predecessor treaty to the Montreal Convention, “overrides” the discretionary power of the federal courts to dismiss an action on forum non conveniens grounds.

The court concluded that the Montreal Convention is a new treaty that, unlike the Warsaw Convention, was drafted during a time when forum non conveniens was a well-known doctrine being applied by courts in several signatory nations. The doctrine is available because the treaty’s terms expressly permit application of a state’s procedural laws. Importantly, the U.S. Department of State had filed an official Statement of Interest in an earlier post-Montreal Convention case making clear that the U.S. did not relinquish the ability of its courts to invoke the forum non conveniens doctrine. Moreover, the few courts in the U.S. that have addressed this issue all concur that the doctrine is available in a Montreal Convention case.¹

1 See Khan v. Delta Airlines, Inc., No. 10-2080, 2010 WL 3210717, at *2 (E.D.N.Y. Aug. 12, 2010); In re West Caribbean Airways, S.A., 619 F. Supp. 2d 1299, 1310 (S.D. Fla. 2007), aff’d sub nom., Pierre-Louis v. Newvac Corp., 584 F.3d 1052 (11th Cir. 2009), cert. denied sub nom., Bapte v. West Caribbean Airways, 130 S. Ct. 3387 (2010).