Irish Nat. Ins. Co., Ltd. v. Aer Lingus Teoranta

• Decision Date: 13 July 1984
• Docket Number: D,No. 1172,1172
• Citation: 739 F.2d 90
• Parties: IRISH NATIONAL INSURANCE COMPANY, LIMITED, Plaintiff-Appellant, v. AER LINGUS TEORANTA, d/b/a Aer Lingus-Irish Airlines, Defendant-Appellee. Cal.ocket 84-7140.
• Court: U.S. Court of Appeals — Second Circuit

Page 90

739 F.2d 90

IRISH NATIONAL INSURANCE COMPANY, LIMITED, Plaintiff-Appellant, v. AER LINGUS TEORANTA, d/b/a Aer Lingus-Irish Airlines Defendant-Appellee.

Cal. No. 1172, Docket 84-7140.

United States Court of Appeals Second Circuit.

Argued May 7, 1984.

Decided July 13, 1984.

John R. Foster, New York City (Waesche, Sheinbaum & O'Regan, New York City, of counsel), for plaintiff-appellant.

Michael J. Holland, New York City (Condon & Forsyth, Stephen J. Fearon and Eugene Massamillo, New York City, of counsel), for defendant-appellee.

Speiser & Krause, New York City (Frank H. Granito, Jr. and Mark A. Pullano, New York City, on the brief), for amici curiae.

Before OAKES, VAN GRAAFEILAND and PIERCE, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

The doctrine of forum non conveniens ostensibly is invoked to determine in which of two jurisdictions a case should be tried. In some instances, however, invocation of the doctrine will send the case to a jurisdiction which has imposed such severe monetary limitations on recovery as to eliminate the likelihood that the case will be tried. When it is obvious that this will occur, discussion of convenience of witnesses takes on a Kafkaesque quality--everyone knows that no witnesses ever will be called to testify. This appears to be such a case.

The Irish National Life Insurance Company appeals from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.), dismissing appellant's lawsuit against Aer Lingus-Irish Airlines on the ground of forum non conveniens. Appellant sued as subrogated insurer to recover $125,000 for damages allegedly sustained by its insured, Analog Devices, B.V., when a package containing integrated circuits, flown by Aer Lingus from Shannon, Ireland to New York, was delivered in a damaged condition.

In an affidavit submitted in support of appellee's motion to dismiss, its counsel stated, "it is transparently clear that the reason this case was filed in the United States was to avoid the impact of [Corocraft Ltd. v. Pan American Airways, Inc., [1969] 1 Q.B. 648 (C.A.1968), leave to appeal to House of Lords dismissed, [1969] 1 Q.B. 658] which would, had this action been properly brought in the United Kingdom or Ireland, have limited plaintiff to damages to U.S. $260." The district court agreed, holding that "the real purpose for bringing this action in New York does not appear to be to vindicate this forum's interest in improving New York as a point of entry, but rather to avoid the possibility that application of Irish law will result in a smaller recovery for plaintiff as a result of law in that forum with respect to the limitation of liability provisions of the Warsaw Convention."

If the foregoing statements are true, the real issue before the district court was not whether the case should be tried in Ireland, but whether it would be tried at all. Nevertheless, feeling bound by this Court's decision in Alcoa Steamship Co., Inc. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir.1978) (en banc), cert. denied, 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980), the district court proceeded to weigh the merits of a trial in Ireland against a trial in America just as if the former were likely to occur. Although the procedure smacks somewhat of a legal charade, we will proceed on the same assumption.

Under the terms of the Warsaw Convention, which furnishes the legal basis for appellant's claim, see Benjamins v. British European Airways, 572 F.2d 913, 916 (2d Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979), appellant was permitted to bring its action "before the court at the place of destination", which, in this case, was New York. See Convention for the Unification of Certain Rules Relating to International Transportation by Air (Warsaw Convention), art. 28(1 ), opened for signature, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, reprinted in 49 U.S.C. Sec. 1502 note; Mertens v. Flying Tiger Line, Inc., 341 F.2d 851, 854-55 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 38, 15 L.Ed.2d 64 (1965). Although amici curiae would have us hold that the district court could not invoke the doctrine of forum non conveniens to deprive appellant of this right to litigate in the United States, we see no need to decide that issue in the instant case.

Under the terms of a separate treaty between the United States and Ireland, appellant was entitled to "national treatment with respect to ... having access to the courts of justice..., both in pursuit and in defense of [its] rights." Treaty of Friendship, Commerce and Navigation, Jan. 21 1950, United States-Ireland, art. VI(1)(c), 1 U.S.T. 785, 790-91, T.I.A.S. No. 2155, at 8. Because of the existence of the two international compacts, the district court should have applied the same forum non conveniens standards that it would have applied to a United States citizen. Alcoa Steamship Co. v. M/V Nordic Regent, supra, 654 F.2d at 152; Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880, 882 (2d Cir.1978). It specifically failed to do so, and this failure tainted its entire holding.

Moreover, we find no support in the record...