Plaintiff's Bid to Undo FNC Under Montreal Convention Fails

May 17, 2013
Michael McGrory
SmithAmundsen Aerospace Alert




The plaintiffs in an airline crash case may have found themselves without a forum as a result of a tactic that was too cute by half. Galbert v. West Caribbean Airways involved wrongful death suits for passengers killed in the 2005 crash of West Caribbean Airways flight 708. The plane crashed in Venezuela while en route from Panama to Martinique, and the plaintiffs sued in the Southern District of Florida under the Montreal Convention.

The court dismissed the plaintiffs’ case under the doctrine of forum non conveniens, finding that Martinique was an adequate alternative and a more convenient forum. The plaintiffs then filed suit in Martinique. But instead of proceeding with their claim, they argued that the French court system had no jurisdiction to hear the suit because, under the Convention, a plaintiff’s election of a forum deprives other forums of jurisdiction. This issue went to the French Supreme Court, which agreed with the plaintiffs.

The plaintiffs went back to Florida, and argued that their case should be reinstated because, thanks to their efforts in France, Martinique was no longer an available forum. The district court saw through their procedural manipulation and denied the request, and the Eleventh Circuit affirmed. The appellate court noted that federal law requires a showing of extraordinary circumstances in order to vacate the dismissal. The plaintiffs had previously not disputed the adequacy of Martinique as an available forum, and the plaintiffs’ success in convincing the French courts that there was no jurisdiction under the Convention was not “sufficiently extraordinary.”

It thus appears that the plaintiffs are left without a forum—because of their success in France, they cannot sue there, and because of their defeat in the U.S., they cannot sue here. This case does, however, leave open some interesting questions about forum non conveniens under the Convention. Future plaintiffs will likely argue that, given the French court’s holding, forum non conveniens is no longer available in Convention cases because the moment a case is filed in the U.S., all other jurisdictions become unavailable. At the same time, though, the Convention provides that procedural rules of the forum court will govern, and courts here will always have an interest in adhering to their own procedures and ensuring that resources are not used in resolving far-flung disputes with little connection to the U.S.