In re West Caribbean Airways, S.A., Case No. 06-22748-CIV.

• Citation: 619 F.Supp.2d 1299
• Decision Date: 27 September 2007
• Docket Number: Case No. 06-22748-CIV.
• Parties: In Re: WEST CARIBBEAN AIRWAYS, S.A., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

619 F.Supp.2d 1299

In Re: WEST CARIBBEAN AIRWAYS, S.A., et al., Defendants.

Case No. 06-22748-CIV.

United States District Court, S.D. Florida.

September 27, 2007.

COPYRIGHT MATERIAL OMITTED

Michael David Ehrenstein, Ehrenstein Charbonneau Calderin, Miami, FL, Robin R. Anderson, Donald McCune, Mary Schiavo, Motley Rice LLC, Mt. Pleasant, SC, David L. Fiol, Lieff Global, LLP, Lexi J. Hazam, Robert L. Lieff, Lieff Cabraser Heimann & Bernstein, San Francisco, CA, Scott P. Schlesinger, Valerie A. Conzo, Sheldon J. Schlesinger, Sheldon J. Schlesinger P.A., Fort Lauderdale, FL, Ibrahim Reyes-Gandara, Silva & Silva, Coral Gables, FL, for Plaintiffs.

Henry Morrison Knoblock, Stephen Fraser Coxhead, Knoblock & Dohner, Daniella Friedman, Daniella Friedman P.A., Joseph Thompson Thornton, Beverly Dawn Eisenstadt, Thornton Davis & Fein, P.A., Miami, FL, Allan I. Mendelsohn, Sher & Blackwell LLP, Washington, DC, Christopher Kevin Leigh, Barthe & Leigh, Fort Lauderdale, FL, Marvin L. Szymkowicz, Savit & Szymkowicz LLP, Bethesda, MD, for Defendants.

PRELIMINARY ORDER ON DEFENDANTS' MOTION TO DISMISS ON GROUNDS OF FORUM NON CONVENIENS

URSULA UNGARO, District Judge.

THIS CAUSE is before the Court upon Defendants' Motion to Dismiss on Grounds of Forum Non Conveniens. D.E. 54¹ This order follows a May 11, 2007 status conference during which the parties agreed to brief the following discrete issues pertaining to Defendants' Motion: (1) whether Newvac is a "contracting carrier" within the scope of the Montreal Convention;² and, whether the Court may apply the forum non conveniens doctrine in an action arising under the Montreal Convention. See D.E. 94 (Order Setting Briefing Schedule); 95 (Order Requesting a Statement of Interest from the United States);³ 97 (Tr. of Status Conf.). The Court has considered the parties' memoranda (D.E. 101, 113), the United States's Statement of Interest (D.E. 116), and is otherwise fully advised in the premises.

Facts

This action arises out of the August 16, 2005 airplane crash in Venezuela of West Caribbean Airways flight 708, while en route from Panama to Martinique.⁴ Plaintiffs are, and the decedents were, residents of Martinique, a Department of the Republic of France. See D.E. 152 (Am. Compl.) at paras, 7, 74. Defendant West Caribbean Airways, S.A. is a Colombian corporation with offices in Medellin, Colombia. Id. at para. 9. Defendants Newvac Corporation and Go 2 Galaxy, Inc. are Florida corporations. Id. at para. 15.

On March 15, 2005, Newvac entered into a "charter contract" with West Caribbean Airways in Medellin, Colombia, pursuant to which West Caribbean was to provide a 152-passenger MD-81 aircraft and crew, for charter flights occurring during May, July and August 2005. See D.E. 99 (McCune Decl.), Ex. "5" (English translation of Charter Contract, originally in Spanish, executed by Jacques Cimetier on behalf of Newvac, d/b/a Go-2 Vacations). Thereafter, on April 25, 2005, Newvac entered into a "contract for air chartering" with Globe Trotter Agency, a travel agency in Martinique, whereby Newvac agreed to provide the aircraft it chartered from West Caribbean to Globe Trotter for a series of excursions between Martinique and Panama. See D.E. 99 (McCune Decl.), Ex. "7" (English translation of Charter Contract, originally in French, executed by Jacques Cimetier on behalf of Newvae, d/b/a Go-2 Vacations). Newvac also provided Globe Trotter with the hotel, transportation and "sightseeing" for these excursions. See D.E. 145 (Cimetier Depo.) at 185:6-186:4. All of the passengers were killed when West Caribbean's aircraft crashed during their return trip from Panama following one of the excursions sold by Globe Trotter. See D.E. 152 (Am. Compl.) at paras. 31-33, 41, 52, 75; D.E. 113 (Defs.' Reply) at 5.

Contracting Carrier

The parties dispute whether Newvac is a "contracting carrier," as that term appears in Article 39 of the Montreal Convention (titled "Contracting Carrier—Actual Carrier"), which states:

The provisions of this Chapter[⁵] apply when a person (hereinafter referred to as "the contracting carrier") as a principal makes a contract of carriage governed by this Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as "the actual carrier") performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part a successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary.

Montreal Convention, art 39. This issue has importance because Plaintiffs wish to argue that this Court has jurisdiction over, and is required to adjudicate this dispute pursuant to Articles 33 and 46 of the Montreal Convention due to Newvac's domicile in the Southern District of Florida. See, e.g., D.E. 101 (Pls.' Mem. in Opp'n to Mot.) at 4-5.

Plaintiffs first submit that there must be a "contracting carrier" in this case because the actual carrier—West Caribbean Airways—"had no opportunity to enter into a direct contractual relation with the passengers," and according to Plaintiffs, only Newvac fits within the term's definition. Id. at 6. Specifically, Plaintiffs submit that Newvac acted as a principal in this case because it profited by contracting for the seating capacity on the West Caribbean aircraft, thereafter reselling it for a higher price to Globe Trotter, which acted on behalf of passengers when it sold individual seats on the aircraft. Id. Plaintiffs add that West Caribbean performed "the whole or part of the carriage" under the authority of its contract with Newvac. Id. at 6-7 (also citing law review articles⁶ that Plaintiffs submit in support of their argument that a tour operator that packages and resells air transportation is a "contracting carrier" under the Montreal Convention).

Plaintiffs further note that the term "carrier" is not defined in the Warsaw⁷ or Montreal Conventions, and therefore, urge consideration of how the United States defines "carrier" in other related contexts. Id. at 8. In this regard, Plaintiffs cite section 40102(a)(2) of the Federal Aviation Act (i.e., 49 U.S.C. § 40102(a)(2)), which defines an "air carrier" as "a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation." Id. (emphasis added). In addition, Plaintiffs cite 14 C.F.R. § 380.2, promulgated thereunder, which states in pertinent part: "Indirect air carrier means any person who undertakes to engage indirectly in air transportation operations and who uses for such transportation the services of a direct air carrier." Id. Plaintiffs also refer to the Air Transportation Operations Inspector's Handbook of the U.S. Federal Aviation Administration, Order 8400. 10, Change 36, Vol. 2, Ch. 1, § 2 at 2-12, which provides in pertinent part that:

An indirect air carrier is a company that contracts aircraft and crew services from an air carrier or commercial operator but may not engage in control over the operational function of any flight. Examples of indirect air carriers include freight forwarders, brokers, or public charter operators. An indirect air carrier will act as an agent for either the customer or the air carrier . . . .

See D.E. 99 (McCune Decl.), Ex. "12". In addition, Plaintiffs cite federal cases supporting the proposition that travel agents, tour operators, charterers and nominal "social clubs" that sell tours and air transportation publicly may be considered "indirect air carriers" subject to certification and similar requirements under the FAA. See D.E. 101 (Pls.' Mem. in Opp'n to Mot.) at 9 (citing Monarch Travel Servs. v. Associated Cultural Clubs, 466 F.2d 552 (9th Cir.1972), cert. denied, 410 U.S. 967, 93 S.Ct. 1444, 35 L.Ed.2d 701 (1973); Arkin v. Trans Int'l. Airlines, Inc., 568 F.Supp. 11 (E.D.N.Y.1982); U.S. v. Caribbean Ventures Ltd., 387 F.Supp. 1256 (D.N.J. 1974)).

Plaintiffs also cite the U.S. Department of Transportation's "Notice on the Role of Air Charter Brokers in Arranging Air Transportation," which states in pertinent part:

The Enforcement Office has become aware that there are air charter brokers not holding economic authority from the Department who solicit and contract directly with a charter customer for air transportation and then solicit and separately contract directly with a direct air carrier to operate the air service promised to the charter customer under the charter broker's contract with that customer. With respect to payment for the proffered air transportation, two separate transactions commonly occur: (1) The air charter broker collects all of the monies paid by the charter customer pursuant to the broker's contract with the customer, and (2) the air charter broker then turns over a portion of these monies to the direct air carrier pursuant to the broker's separate contract with the carrier. In such instances, the air charter broker is not acting as an agent for the operating carrier or for the charter customer. Rather, the air charter broker is acting as a principal in both transactions, and, with respect to its relationship with the customer, is engaged in air transportation as an indirect air carrier without economic authority in contravention of the statutory and Department licensing requirements described above.

Id. (citing 69 Fed.Reg. 61429-02, 61430 (2004)). Plaintiffs submit that this description fits Newvac's role in the instant case, as Newvac made two separate transactions, one with Globe Trotter and the other with West Caribbean, making a profit on the difference between what it paid for the air transportation and the price it received from Globe Trotter. Id. at 9-10.

Finally, Plaintiffs suggest Newvac is a "loophole airline" and that public policy dictates that therefore, Newvac be considered a "contracting carrier." Id. at 10. The "loophole airline" label is...