637 F.2d 775 (D.C. Cir. 1980), 79-1730, Pain v. United Technologies Corp.

Docket Nº:79-1730 to 79-1734.
Citation:637 F.2d 775
Party Name:Jacqueline De Villoutrey PAIN, as surviving spouse, and Marie Frederique Pain De Wavrechin, Yves Emmanuel Pain, and Jean Olivier Pain, as surviving children of Jacques Pain, Appellants, v. UNITED TECHNOLOGIES CORP. Sigrun FRANTZEN, individually, and as guardian of Jan Ivar Frantzen, Knut Erik Frantzen, and Arild Frantzen, children of Frederik Johan
Case Date:November 17, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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637 F.2d 775 (D.C. Cir. 1980)

Jacqueline De Villoutrey PAIN, as surviving spouse, and

Marie Frederique Pain De Wavrechin, Yves Emmanuel

Pain, and Jean Olivier Pain, as

surviving children of Jacques

Pain, Appellants,



Sigrun FRANTZEN, individually, and as guardian of Jan Ivar

Frantzen, Knut Erik Frantzen, and Arild Frantzen,

children of Frederik Johan Frantzen, Appellants,



Eslinda CHRISTOPHERSEN, individually, and as guardian of

Raymond Ivar Christophersen and Sonya

Christophersen, children of Kjell Ivar

Christophersen, Appellants,



Ingjerd KAHN, as surviving wife, and as mother of Jaysen

Kahn, infant son of Dennis Iver Kahn, and of his unborn child


Naomi Kahn, as surviving mother of Dennis Iver Kahn, Appellants,



Bette Irene SIBTHORPE, individually, and as guardian of

Graham Edward Sibthorpe, son of Keith Edward

Sibthorpe, Appellants,



Nos. 79-1730 to 79-1734.

United States Court of Appeals, District of Columbia Circuit

November 17, 1980

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Charles F. Krause, New York City, with whom Philip Silverman, Daniel F. Hayes, New York City, and J. Michael Sconyers, Washington, D.C., were on brief, for appellants.

Lewis T. Booker, Richmond, Va., with whom L. Neal Ellis, Jr., Richmond, Va., was on brief, for appellee.

Before WILKEY, WALD and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

In this case we consider whether the trial judge abused his discretion by conditionally dismissing the appellants' consolidated wrongful death actions on grounds of forum non conveniens. The scope of our review in this matter is limited; a federal district court has the inherent power to dismiss an action which it deems an imposition upon its jurisdiction so long as an adequate alternative forum is available and so long as the trial judge has carefully "weigh(ed the) relative advantages and obstacles to fair trial" 1 and, taking into consideration the plaintiff's original choice of forum, found the balance of public and private interests to favor dismissal. 2 When appraising a lower court's forum non conveniens determination, an appellate court may not substitute its judgment for that of the district court in the absence of a clear abuse of discretion. 3 For reasons set out in greater detail below, we affirm.


On 26 June 1978 a helicopter en route from Bergen, Norway to an offshore oil drilling platform crashed into the North Sea approximately eighty-seven miles from its point of departure. The helicopter, which had been designed and manufactured by the Sikorsky division of defendant United Technologies Corporation (UTC), was owned and operated by Helikopter Service, A.S. (Helikopter), a Norwegian corporation. 4 Among those killed in the crash were Jacques Pain, a French citizen and domiciliary; Frederik Johan Frantzen, a Norwegian citizen and resident; Keith Edward Sibthorpe, a British citizen and resident; Dennis Iver Kahn, an American citizen residing in Norway; and Kjell Ivar Christophersen, a Norwegian resident holding dual Norwegian-Canadian citizenship. 5

Following the crash, the Norwegian Civil Aviation Administration conducted an official investigation of the action, in which defendant UTC participated. 6 The records of that investigation, the officials who conducted it, the flight crew, and the wreckage of the helicopter itself are all currently located in Norway. 7 Shortly thereafter, decedents' survivors brought five separate wrongful death actions against UTC in the district court, alleging both diversity jurisdiction 8 and mandatory jurisdiction based on the Death on the High Seas Act 9 (DOHSA). Plaintiffs' complaints, which sounded in breach of warranty, strict liability, and negligence, sought compensatory damages

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totalling five million dollars, plus punitive damages. 10

With a single exception, all of the plaintiffs widows and surviving children of the decedents reside abroad. The sole American plaintiff, the mother of the deceased Kahn, is an American citizen residing in New Hampshire. 11 Helikopter, the owner-operator of the helicopter involved in the fatal accident, has no contacts with the United States and hence, stands outside the personal jurisdiction of American courts. 12 Thus United Technologies Corporation, a Delaware corporation with its principal place of business in Hartford, Connecticut remains the sole defendant.

On 29 March 1979 following the submission of memoranda and a hearing before the district court, the Honorable George L. Hart, Jr. entered five separate orders granting UTC's motions to dismiss these actions on grounds of forum non conveniens. 13 Judge Hart conditioned the dismissals on stipulations made by UTC which were to apply if suit were later brought in Norway or in the Pain, Christophersen, and Sibthorpe cases, in France, Canada, and the United Kingdom, respectively. UTC stipulated its consent to personal jurisdiction in the foreign court where plaintiffs might subsequently bring suit, agreed to waive any defense of statute of limitations were such a suit to be brought within one year of the date of dismissal, and most significantly, agreed to proceed directly to trial only on the issue of damages, without contesting liability, in any suit filed by plaintiffs outside the United States. 14

Pursuant to our order of 20 July 1979, these actions have been consolidated upon appeal. A thorough consideration of the record convinces us that no abuse of discretion occurred here; Judge Hart carefully evaluated all factors relevant to determining a forum non conveniens motion before concluding that a conditional dismissal was appropriate. Furthermore, our own evaluation of those factors, coupled with our understanding of applicable law, convinces us that conditional dismissal was particularly appropriate here because more serious obstacles to fair trial exist in this forum than in alternative forums abroad. After a brief discussion of the jurisdictional issues presented by this case, we will proceed to analyze the district court's ruling on forum non conveniens.


The appellants first argue that because their DOHSA claim "arises under the laws of the United States" within the meaning of the district court's federal question jurisdiction, 15 assumption of jurisdiction was therefore mandatory. In support of this contention appellants cite Chief Justice Marshall's oft-quoted passage from Cohens v. Virginia : 16

It is most true, that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should.... With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.

To appellants' contentions on this first point, we note simply that no claim can be made that the district court had

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mandatory jurisdiction in this case because appellants' complaints failed to invoke federal question jurisdiction. 17 The DOHSA, upon which appellants rely, provides only that a suit for damages may be maintained "in the district courts of the United States, in admiralty." 18 Since it is well accepted that suits in admiralty do not fall within the compass of federal question jurisdiction, 19 we reject appellants' assertions regarding mandatory jurisdiction.



Unlike issues of jurisdiction, determinations of forum non conveniens are not pure questions of law; rather they represent exercises of structured discretion by trial judges appraising the practical inconveniences posed to the litigants and to the court should a particular action be litigated in one forum rather than another. 20 Thus, the principal question to be decided here is whether the district court abused that discretion by dismissing appellants' suits on grounds of forum non conveniens. In deciding this question, we assume and appellee does not suggest otherwise that, but for the application of the forum non conveniens doctrine, the district court had proper jurisdiction over these consolidated actions. We therefore consider only whether the lower court properly renounced that jurisdiction by invoking the doctrine of forum non conveniens here.

A. The Supreme Court Decisions in Gilbert and Koster

The parties fundamentally differ over the proper standard to be applied under the forum non conveniens doctrine. Their dispute centers around their disagreement as to whether this case is governed by the Supreme Court's decision in Gulf Oil Corp. v. Gilbert, 21 or by the companion decision, Koster v. Lumbermens Mutual Casualty Co. 22 Although Gilbert and Koster were decided together and authored by the same Justice, in each case the Supreme Court used slightly different language, and at least arguably different approaches, in applying the doctrine of forum non conveniens.

The district court relied primarily on Gilbert, a decision that UTC represents as establishing a "balance of conveniences" test for dismissal on grounds of forum non conveniens. 23 The appellants, however, urge that this court apply Koster, which they suggest requires a showing that plaintiffs'...

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