Dahl v. United Technologies Corp.

• Citation: 472 F. Supp. 696
• Decision Date: 08 June 1979
• Docket Number: Civ. A. No. 78-363 to 78-366.
• Parties: Maren DAHL, Personal Representative of the Estate of Stale Dahl, Deceased, and Anne Marie Drangeld, Personal Representative of the Estate of Olan Drangeld, Deceased, and Bjord Turid Fosen, Personal Representative of the Estate of Jan Fosen, Deceased, and Ingunn Koppergard, Personal Representative of the Estate of Age Koppergard, Deceased, Plaintiffs, v. UNITED TECHNOLOGIES CORPORATION, Defendant.
• Court: U.S. District Court — District of Delaware

472 F. Supp. 696

Maren DAHL, Personal Representative of the Estate of Stale Dahl, Deceased, and Anne Marie Drangeld, Personal Representative of the Estate of Olan Drangeld, Deceased, and Bjord Turid Fosen, Personal Representative of the Estate of Jan Fosen, Deceased, and Ingunn Koppergard, Personal Representative of the Estate of Age Koppergard, Deceased, Plaintiffs, v. UNITED TECHNOLOGIES CORPORATION, Defendant.

Civ. A. Nos. 78-363 to 78-366.

United States District Court, D. Delaware.

June 8, 1979.

John Biggs, III of Biggs & Battaglia, Wilmington, Del. and Marvin I. Barish of Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Pa., for plaintiffs.

Allen M. Terrell, Jr., and William J. Wade of Richards, Layton & Finger, Wilmington, Del., for defendant.

OPINION

LATCHUM, Chief Judge.

These civil actions were filed in this Court on August 23, 1978 by four Norwegian residents (collectively, the "plaintiffs")¹ as personal representatives of four Norwegian decedents who died in a crash of a Norwegian owned and operated helicopter in Norwegian territorial waters of the North Sea on November 23, 1977.² The named defendant in each case is United Technologies Corporation ("UTC"), a Delaware corporation, which maintains its principal place of business in Hartford, Connecticut.³ UTC manufactured and sold the helicopter involved in the crash.⁴ Jurisdiction is based on diversity of citizenship as provided in 28 U.S.C. § 1332.

The complaint essentially alleges that the crash in which the plaintiffs' decedents died was proximately caused by a defect in either the design or manufacture of the helicopter by UTC. The plaintiffs therefore seek to recover damages from UTC for the injuries and death sustained by their respective decedents. The plaintiffs have advanced three separate theories of liability: (1) negligence; (2) strict liability in tort under Restatement (Second) of Torts § 402A;⁵ and (3) breach of express and implied warranties.

The cases are presently before the Court on UTC's motion to dismiss on the ground of forum non conveniens.⁶

I. BACKGROUND FACTS

On November 23, 1977, the plaintiffs' decedents, employees of the Phillips Petroleum Company, were on board a helicopter headed for a mobile drilling rig in the North Sea.⁷ The helicopter crashed about thirty miles off the coast of Norway; there were no survivors.⁸ The helicopter was owned and operated by Helikopter Service A/S, a Norwegian corporation, which does business only in Norway and the North Sea.⁹ The record does not indicate the cause of the crash.¹⁰

The helicopter involved in the crash was manufactured in 1970 by the Sikorsky Division of UTC in Connecticut.¹¹ It was sold on November 10, 1970 by United Aircraft International, Inc., another subsidiary of UTC, to All Nippon Airways Co., Ltd. ("All Nippon"), a Japanese corporation, in accordance with a lease agreement and option to purchase.¹² The helicopter was delivered to All Nippon in Connecticut on January 5, 1971.¹³ As part of the agreement, United Aircraft International undertook to furnish All Nippon with a crew chief to assist with routine maintenance of the helicopter for a three-month period beginning on January 24, 1971. The expiration of that period marked the last contact UTC and its subsidiaries had with the helicopter.¹⁴

In April 1976 All Nippon sold the helicopter to Helikopter Service A/S, the Norwegian company that owned and operated it when it crashed.¹⁵

Additional facts pertinent to the pending motion to dismiss are set forth in the Court's discussion of the factors relevant to a forum non conveniens determination.

II. APPLICABLE STANDARDS

Under the doctrine of forum non conveniens "a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The doctrine presupposes the existence of at least two forums in which the action could have been brought; it furnishes criteria for choice between them. Id. at 506-07, 67 S.Ct. 839. Where two federal forums are available, 28 U.S.C. § 1404(a) authorizes the transfer of a case from one federal district court to another on forum non conveniens grounds. In cases like the instant one, however, where the more convenient forum is in a foreign country, the traditional forum non conveniens remedy of dismissal is appropriate. DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (C.A.3, 1977), cert. denied, 435 U.S. 904, 78 S.Ct. 1449, 55 L.Ed.2d 494 (1978).

A threshold issue in this case is whether Norway is a suitable alternative forum. The Court concludes that it is, based on UTC's offer to consent to the following: (1) to the service of process upon it in any action brought in Norway by any of the plaintiffs herein, (2) to make its witnesses and documents available and to adjudicate the controversies in Norway, and (3) to pay any judgment rendered against it in Norway.¹⁶ The record also indicates that the courts of Norway would exercise jurisdiction over actions brought by the plaintiffs against UTC.¹⁷

Relying upon dicta in Phoenix Canada Oil Co. v. Texaco, Inc., 78 F.R.D. 445, 455 (D.Del.1978), the plaintiffs argue that Norway is not an acceptable alternative forum because there is no evidence that it will afford them remedies or procedural protections comparable to those available in the United States. The record, however, refutes that argument. UTC has filed an affidavit by a Norwegian attorney which indicates that the Norwegian courts will entertain jurisdiction over UTC if the plaintiffs bring any actions against it in Norway.¹⁸ Furthermore, under Norwegian law UTC would be subject to unlimited liability for injuries and damages resulting from the helicopter crash shown to have been caused by its negligence.¹⁹ The affidavit also states: "Norway is in the process of developing case law built up around product liability cases."²⁰ Finally, UTC's affiant represents that the pretrial procedures available in Norway are as conducive to the fair administration of justice as those available under United States law.²¹ The plaintiffs, who are themselves Norwegian citizens, have brought no facts to the Court's attention that would warrant a contrary conclusion. Accordingly, the Court finds that Norway is a suitable alternative forum and turns to the merits of the defendant's motion.

An action should not be dismissed on the ground of forum non conveniens unless the balance of the convenience of witnesses and interests of justice is strongly in favor of the defendant. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. 839; Fitzgerald v. Texaco, Inc., 521 F.2d 448, 450 (C.A.2, 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 641 (1976). In the Gulf Oil opinion, Mr. Justice Jackson enumerated a number of factors which should be considered in reaching this balance:

An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. . . .

Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin.

330 U.S. at 508-09, 67 S.Ct. at 843.

III. ANALYSIS

A. The Private Interests

Focusing first on the private interests, the Court finds that the interests of the litigants in these cases would not be served by trial in this Court. Indeed, all such interests point to Norway as the appropriate forum for this litigation.

No evidence relevant to the claims asserted by the plaintiffs is located in Delaware. These actions arose out of a crash of a Norwegian owned and operated helicopter in the territorial waters of Norway. The recovered parts of the wreckage are located in Norway.²² The helicopter was based and maintained in Norway and its maintenance, flight and operational records are located there.²³ The Norwegian Civil Aviation Administration is currently conducting an investigation into the probable cause of the accident.²⁴

In addition to the demonstrative and documentary evidence just mentioned, a substantial amount of the testimonial evidence will come from Norwegians. Testimony from persons who knew the decedents will be relevant to the damages issue. Among the potential liability witnesses are employees of Helikopter Service A/S, employees from other firms in Norway that serviced or made installations on the helicopter, and the Norwegian government officials who investigated the accident. UTC could not compel the attendance of these Norwegian witnesses at a trial in Delaware. Nor could it compel production here of any real or documentary evidence located in Norway.

The plaintiffs, on the other hand, would not encounter similar difficulties if these cases were tried in Norway. UTC has offered to make witnesses and documents under its control available in Norway at its own expense²⁵ in the event these actions are dismissed. Thus, the plaintiffs will have access to the plans and records made by UTC in connection with the design and manufacture of the helicopter and to persons under UTC's control who worked on it, regardless of their location. Given UTC's offer and the complete absence of any relevant evidence in Delaware, the Court considers Norway a significantly more convenient forum in terms of the relative ease of access to sources of proof and the availability of...