|Bird & Bird Aviation Newsflash
of US FNC doctrine under the
In a recent ruling concerning compensation claims following an air crash, the French Supreme Court held, under the Montreal Convention (Cour de cassation, Civ. 1, 7 Dec. 2011, no. 10-30919), that France was not an available forum after the plaintiffs had been compelled to bring their case before the French courts following a US decision of forum non conveniens.
On 16 August 2005 an aircraft operated by Columbian air carrier West Caribbean Airways ("WCA") crashed in Venezuela during a flight from Panama City (Panama) to Fort de France (Martinique, France), causing the death of all 160 passengers and 8 crew members.
The aircraft had been chartered by Newvac Corporation, a corporation based in Florida.
Most of the plaintiffs decided to sue WCA and Newvac before the Florida courts (United States District Court for the Southern District of Florida) on the basis of Article 33 of the Convention for the Unification of Certain Rules for International Carriage by Air signed in Montreal on 28 May 1999 (the "Montreal Convention"), Florida being the domicile of Newvac, which was sued as a contracting carrier under Article 39 of the Montreal Convention.
The Florida District Court held that Newvac was indeed a contracting carrier, but dismissed the case on the grounds of forum non conveniens ("FNC"), France being an available and more adequate forum. This decision was confirmed on appeal by the Eleventh Circuit Court of Appeals and the US Supreme Court declined to review it.
Plaintiffs, meanwhile, filed claims before the French (Martinique) courts, seeking a dismissal order for lack of jurisdiction of French courts on the basis that they had opted to sue in the United States, one of the available fora under Article 33 of the Montreal Convention, and as a result of this option the French courts had to relinquish the case in favour of US courts.
The plaintiffs' argument was rejected both at first instance and on appeal.
Two main issues were raised in this referral to the Supreme Court: admissibility of a request for declaratory judgement on jurisdiction - as a condition precedent - and the jurisdiction of the Martinique court.
Admissibility of claim for declaratory judgement
The preliminary issue raised by the defendants before the Supreme Court was the admissibility of the plaintiffs' claim for declaratory judgment on jurisdiction.
Under French law pure declaratory actions, i.e. actions brought with the intention of simple consultation of the court, are usually inadmissible. The basis of this position is the fundamental procedural principle that claimants bringing proceedings before a French court need to demonstrate that they have a "legitimate interest in the success or dismissal of a claim" (article 31 of French Civil Procedure code).
The French Supreme Court has traditionally ensured application of this principle, emphasizing that judicial review must be exercised a posteriori and that a litigant cannot be guaranteed by a court, in advance, of the legality of an act, or the legitimacy of a situation.
Declaratory actions have been allowed in limited circumstances where the interest in bringing proceedings has been characterized by the need of the applicant to make clear a personal situation or assets.
Prior to the ruling of 7 December 2011 there were thus legitimate doubts as to whether proceedings could be brought before a French court seeking declaratory judgement on the jurisdiction of the court alone, and this issue had not been clearly addressed by the Supreme Court. It was even possible to infer from a previous decision of another Chamber of the Supreme Court that such a declaratory action was not admissible.
Nevertheless, in line with major French legal literature which considers that there should be no obstacle to the admissibility of such claims, the French Supreme Court decided that: "considering that they have been obliged to bring their claims before a forum that they have not chosen, the claimants have, on the grounds of the Montreal Convention, a legitimate and current interest to bring proceedings for declaratory judgement, in observation of the existence and the extent of their right of option recognised by the Montreal Convention".
The terms used by the Supreme Court in this decision seem to restrict its scope to actions based on the Montreal Convention; however, the reasoning used by the Court could well be transposed to other declaratory actions brought by claimants having a current legitimate interest in the French courts deciding on their own jurisdiction.
||Jurisdiction under the Montreal Convention|
When the Plaintiffs sued WCA and Newvac before Florida District, the Defendants argued for dismissal of the case on the grounds of forum non conveniens. The plaintiffs responded that the doctrine of forum non conveniens was not applicable since the US Court had jurisdiction under the Montreal Convention, which is the exclusive means by which international air travel passengers can seek damages for death or personal injuries.
The Florida District Court and the Eleventh Circuit Court of Appeals acknowledged the jurisdiction of the US courts pursuant to Articles 45 and 33 of the Montreal Convention.
Regarding the application of the doctrine of forum non conveniens in the context of the Montreal Convention, the US Courts relied on Article 33(4) of the Convention which provides that "Questions of procedure shall be governed by the law of the court seized of the case" to state that "...because the doctrine of forum non conveniens is part of United States civil procedure, the Convention unambiguously permits its application in accordance with the law of the forum."
The US Courts then dismissed the case, considering France to be an available alternative, and a more adequate forum under the Montreal Convention.
The case was therefore brought by the plaintiffs before the French courts and, after several years of litigation, the French Supreme Court decided that France was "not currently available as an appropriate forum" even though it could have had jurisdiction, pursuant to article 33 of the Montreal Convention. It should be noted that the forum non conveniens doctrine is not applied under French law and the concepts of "currently available" and "appropriate forum" are unknown under French law. These were used for the first time by the French Supreme Court specifically to thwart the US FNC decisions.
The French Supreme Court considered that article 33 (1) provides the plaintiff (and the plaintiff alone) with the option to choose the forum for the lawsuit, and such a choice precludes any other court within an available forum from hearing the suit if it is not the forum selected by the plaintiff.
The French Supreme Court went further, stating that the principle that choice of the forum lies with the plaintiff may not be thwarted by reliance on any internal procedural rule.
In other words, it considers that the plaintiff's option to choose the forum for the lawsuit according to Article 33 (1) prevails over application of the procedural rules of the chosen available forum (Article 33 (4) of the Montreal Convention) .
While the purpose of the Montreal Convention (and of the Warsaw Convention) is the unification of the rules for international carriage by air, this case is a reminder that, in the absence of international jurisdiction, there is no uniformity of interpretation of the Montreal Convention.
Following the French Supreme Court's decision, the US Courts will probably have to re-examine the case.
They will probably not change their interpretation of Articles 33 (1) and 33 (4). However, they will be faced with a dilemma since they expressly stated that "forum non conveniens would permit dismissal under the Montreal 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." (Emphasis added)
Since the French Supreme Court ruled that under Article 33 (1) France is not available as an appropriate forum if not chosen by the plaintiff, the US Courts should therefore not be able, under the Montreal Convention, to dismiss the case on the grounds of the doctrine of forum non conveniens in favour of French Courts in future matters.
Nevertheless it seems unlikely that this decision of the Supreme Court will be extended to cover other matters as the wording is restrictive, and the decision is specifically based on the provisions of the Montreal Convention, which constitutes a rule of international jurisdiction. In cases where such a rule of international jurisdiction is absent, national courts have to apply their domestic jurisdiction rules, none of them prevailing over others.
To opt-out from all future communications from Bird & Bird please click here and select the option 'Unsubscribe from all Bird & Bird mailing lists'.
The content of this update is of general interest and is not intended to apply to specific circumstances. The content should not, therefore, be regarded as constituting legal advice and should not be relied on as such. In relation to any particular problem which they may have, readers are advised to seek specific advice. Further, the law may have changed since first publication and the reader is cautioned accordingly.
BIRD & BIRD
Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated and associated businesses. Bird & Bird LLP is a limited liability partnership, registered in England and Wales with registered number OC340318 and is regulated by the Solicitors Regulation Authority. Its registered office and principal place of business is at 15 Fetter Lane, London EC4A 1JP.
For details of Bird & Bird, our offices, our members, the use of e-mail and regulatory information, please see twobirds.com
and, in particular, twobirds.com/english/Legal_Notices.cfm
The word "partner" is used to refer to a member of Bird & Bird LLP or an employee or consultant, or to a partner, member, director, employee or consultant in any of its affiliated businesses, who has equivalent standing and qualifications. A list of members of Bird & Bird LLP and of any non-members who are designated as partners, and of their respective professional qualifications, is open to inspection at our London office address.
All such persons are solicitors, registered foreign lawyers or non-registered European lawyers.
Any e-mail sent from the firm may contain information which is confidential and/or privileged. Unless you are the intended recipient you may not disclose, copy or use it; please notify the sender immediately and delete it and any copies. You should protect your system from viruses etc.; we accept no responsibility for damage that may be caused by them.
For marketing purposes, we may monitor whether you open and/or click on URLs in this email. If you want to stop us doing this, please click here and select the option 'Remove tracking'.
To subscribe to or unsubscribe from Bird & Bird regular newsletters please click here
To notify us of your interests and preferences or changes to your contact details, please contact CRMTeam@twobirds.com