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Montreal Convention - International Jurisdiction

Judgment No. 1201 of 7 December 2011 (10-30.919) - Cour de Cassation Civ. 1° (French Supreme Court First Civil Division)


Aircraft accident - Montreal Convention - Article 33 - Lawsuit by French families before the court of the domicile of the contractual carrier (Florida, USA) - US ruling of forum non conveniens in favour of France being the court of the place of destination - Motion for the French court to decline jurisdiction - Motion admissible - French Court of Appeal ruling accepting jurisdiction - Ruling overturned by the Supreme Court because the plaintiffs had chosen another jurisdiction - France "not currently available" as an appropriate forum


First ground of appeal, ruling on its first two sections:


Having regard to Articles 33 (1) and 46 of the Montreal Convention


The option that a plaintiff is granted by the aforementioned provisions to choose the forum for his lawsuit precludes even a court of competent jurisdiction from hearing the suit if it is not the court selected by the plaintiff. This option, which is nevertheless limited by a list of potential jurisdictions to reconcile the various interests in play, implies, to satisfy the Montreal Convention objectives of foreseeability, certainty and uniformity, that the plaintiff (and the plaintiff alone) choose the court that will effectively decide the dispute. No reliance on any internal procedural rule can be allowed to frustrate or thwart the basic precept that the choice lies with the plaintiff.


In refusing to decline jurisdiction, the Appeal Court, concurring with the defendants' arguments, ruled that the Fort de France court derived its power to hear the case from a rigorous application of Montreal Convention jurisdiction rules and, supporting this idea with its own reasoning, held that the court of the place of destination of the aircraft, i.e. Fort de France, was a jurisdictional option according to the Convention. Accordingly, its legitimacy as a forum could not be challenged for lack of jurisdictional power.


In adopting such a ruling, when the plaintiffs had chosen another competent court to decide the dispute, the Court of Appeal misapplied the cited provisions of the Convention.


Having further regard to Article L. 411-3 of the Judicial Organisation Code;


WHEREFORE, with no ruling on the other complaints being required:

[This Court:]


REJECTS AND SETS ASIDE the ruling handed down on 25 June 2010 by the Court of Appeal in Fort de France, save its finding that the motion was validly filed according to the objection to jurisdiction procedure (contredit);


RULES that no committal of the case for rehearing (renvoi) is required;


HOLDS that France is "not currently available" as an appropriate forum


There will clearly be a profuse flow of ink in writing about this ruling in legal journals and gazettes: the lawyers acting for the victims' families will construe it as a great victory of principle; those acting for carriers as a "legal oddity" and perhaps a Pyrrhic victory because it may well put plaintiffs in an impossible situation and in any event one likely to drag on.


On August 16, 2005, an aircraft belonging to the Colombian company West Caribbean Airways (WCA), chartered by Newvac Corporation, a company organised and existing in accordance with Florida State law, on a flight path from Panama City to Fort de France (Martinique), crashed in Venezuela, killing all the passengers on board (all from Martinique) and the entire Colombian crew.


Availing themselves of the US nationality of Newvac Corporation and successfully convincing the Federal Court of the Southern District of Florida that Newvac was the contractual carrier, the victims' families brought suit against the contractual carrier and the actual carrier, WCA, before the US court. According to Articles 33 (1) and (2) of the Montreal Convention of 28 May 1999, this court did have jurisdiction as court of the domicile of the carrier. The defendants filed a motion to dismiss, claiming forum non conveniens, a doctrine specific to common law countries, whereby a court, even of competent jurisdiction, may decline to hear a case where it finds that another court, also of competent jurisdiction, is better placed to decide it. In this case, the US court granted the forum non conveniens motion, applying Article 33 of the Montreal Convention to rule that the French court also had jurisdiction to hear the case as the court of the place of destination and that proceedings before a French court would be better suited and more proximate to the plaintiffs because all the passengers and their families were French. The US court denied the claims and invited the plaintiffs to refer their case to the French court.



Accordingly, the families commenced proceedings in France but, basing their submissions on the letter of Article 33 (1) of the Convention, which provides that "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", they argued that, as their choice of forum was not France but the United States, the French courts should decline jurisdiction. This was evidently a direct challenge to the forum non conveniens ruling of the US court which had instructed them to bring suit in the French courts. In a judgment of 24 August 2009, the Fort de France District Court rejected this argument. It held, applying Article 33 (4) of the Montreal Convention, which provides that questions of procedure are governed by the law of the court seized of the case and that forum non conveniens is a US procedural doctrine, that by bringing suit in a US court, the plaintiffs should have anticipated that their choice of forum would be rejected. The plaintiffs challenged this decision using the jurisdiction objection procedure (contredit). They contested the basis for the ruling and raised further defences of lis alibi pendens and close connection with other proceedings in the United States. In a ruling of 25 June 2010, the Court of Appeal in Fort de France dismissed the lis alibi pendens and close connection defences. It was very allusive in its ruling on the issue of jurisdiction in principle. It merely held that there were no grounds for opposing French jurisdiction.


In its ruling of 7 December 2011, the French Supreme Court seized on this shortcoming and set the decision of the Court of Appeal in Fort de France aside in concise or even terse terms: in adopting such a ruling (holding itself to have jurisdiction) when the plaintiffs had chosen another competent court to decide the dispute, the Court of Appeal misapplied the cited provisions sections of the Convention". In other words, the Supreme Court adhered to the letter of the Convention, upholding the plaintiffs' choice of court.


This ruling has both theoretical and practical consequences:


On a theoretical level, it constitutes a declaration of war against the US courts in their application of the forum non conveniens doctrine to the Montreal Convention jurisdiction rules. This is certainly not the first time that a European court has contested this doctrine within the European Union. It is, however, the first time that a court has censured the doctrine by rendering it completely ineffective on its national territory although it cannot prevent a foreign court applying the doctrine.


The ECJ discounted the forum non conveniens doctrine in its judgment in the Owusu case (1 March 2005), in which it held that such a doctrine was incompatible with the jurisdiction rules laid down in the Brussels Convention (embodied in Council Regulation (EC) No. 44/2001). However, this prohibition is evidently directed at courts in the European Union bound by Regulation No. 44/2001 jurisdiction rules that may nevertheless have a tendency to issue a ruling based on the forum non conveniens doctrine (the British courts) thus contradicting the rules imposed in the Regulation. The prohibition is directed at the source where located inside the European Union.


The US courts are obviously not bound by Regulation No. 44/2001. They are free to apply internal procedural rules, such as the doctrine of forum non conveniens, at their discretion provided such rules are compatible with the Montreal Convention. The Federal Court of the Southern District of Florida looked long and hard at this question in a preliminary order issued on 26 September 2007. The US court found that, according to the preparatory work for the convention, it was up to each country to decide whether or not to apply the forum non conveniens doctrine according to its own procedural rules. It noted that the negotiators had taken the view that there was sufficient safeguard of this freedom in Article 33 (4) of the Convention which left the matter of applying procedural rules to the court seized. Accordingly, the US court held that the forum non conveniens doctrine was compatible with the Montreal Convention and in particular Article 33 (1). In dismissing the power of the French court seised to accept jurisdiction, the French Supreme Court nullified the forum non conveniens ruling, rendering it completely ineffective.


From a practical standpoint in this case, the plaintiffs should normally revert to the US court. As the French court recommended by the US court declined jurisdiction, this should authorise the plaintiffs to return before that US court. However, there is a well-established US precedent that the reiterated claim of a plaintiff who has failed to comply with a forum non conveniens ruling in good faith - i.e. who has not filed a damages claim in the alternative court but has taken action to protract or delay such a claim (for example, arguing that the alternative court lacks jurisdiction) - in order to revert to US court jurisdiction, will be denied by that US court. The plaintiffs are therefore likely to find themselves in a situation (that they themselsves have caused) where they are denied justice. It's a game of who loses wins. The French Supreme Court seems to have anticipated this stalemate because, on setting the appeal ruling aside without committing the case for rehearing (renvoi), it stated, in the style of an obiter dictum: "holds that France is "not currently available" as an appropriate forum". In other words, should the plaintiffs change their minds and elect for French jurisdiction, it will then be available to them. As far as we are aware, this is a first. We know of no case where the Supreme Court set aside a ruling and in a post scriptum, assured the plaintiffs of its support should their success in arguing this point of law before the French court condemn them to failure before the US court. However, should the US court dismiss the damages claim, would this denial not (once rendered enforceable via exequatur in France) constitute res judicata in France and thus bar the way to any new damages claim in the French courts?





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