Pierre-Louis v. Newvac Corp.

• Decision Date: 08 October 2009
• Docket Number: No. 07-15830.,No. 07-15902.,No. 07-15828.,07-15828.,07-15830.,07-15902.
• Citation: 584 F.3d 1052
• Parties: Annick Joelle PIERRE-LOUIS, Antoine Vincent Guyard, Thibaud Guyard, a minor, by his father Antoine Vincent Guyard, individually as heirs of Abdon Joesph Pierre-Louis, deceased and individually as heirs of Lawrence Pierre-Louis, deceased, Leon Noel Edmond Lorne, Melanie Suzie Martine, a minor, by her mother Marie-Nelly Martie individually as heirs of Serge Nal, deceased, Plaintiffs-Appellants, v. NEWVAC CORPORATION, a Florida corporation, Go 2 Galaxy, Inc., a Florida corporation, West Caribbean Airways, S.A., a Columbian corporation, Defendants-Appellees. Sylvia Bapte, Individually and as personal representative of the Estates of Christiane Bapte, deceased, and Sylvain Bapte, deceased, Stephanie Isabelle Bapte, Aubin Casimir, Maryvonne Bapte, et. al., Plaintiffs-Appellants, v. Newvac Corporation, a Florida Corp., Go 2 Galaxy, Inc., a Florida corp., West Caribbean Airways, S.A., a Columbian Corp., Defendants-Appellees. Henri Galbert, as personal representative of the Estate of Nicolas Massal, Deceased, et al., Plaintiffs, Nicolas Massal, Murielle Massal, Maeva Massal, Joseph Galbert, Marie Galbert, Joachim-Arnaud, Paul Berisson, Georges Berisson, Raphose, Marie Luce, Joseph Boniface, Scaglioni, Lanoir, Montlouis Felicte, Alex Peters, Berton, Raphaelle Couffe, Robert Couffe, Marie Peters, Violton, Sohan Ventakapen, Michel Ventakapen, Eudaric, Bertin Marie-Luce, Charles Cabrera, Rosamond, Catherine Cabrera, Denis Ramin, Laurence Ramin, Duranville, Henri Hospice, Adree Hospice, Maquiaba, Victorin, Iphaine, Legendart, Bermont, Florine, Laurent, Magloire, Sainte-Rose, Antiste, Jeremie Bocle, Nal, Dijon, Pepinter, Porro, Bapte, Taupin, Plaintiffs-Appellants Cross-Appellees, The Estate of Francis Berton, The Estate of Marie-Pierre Cadare, The Estate of Raphaelle Couffe, Marie-Odile Monlouis-Felicite, The Estate of David Scaglioni, Plaintiffs, v. West Caribbean Airways, a Colombian corporation, Aseguradoro Colseguros, S.A., a Colombian corporation, Defendants-Appellees, Newvac Corporation, a Florida corporation, Go 2 Galaxy, Inc., a Florida corporation, Jaques Cimetier, individually, Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

584 F.3d 1052

Annick Joelle PIERRE-LOUIS, Antoine Vincent Guyard, Thibaud Guyard, a minor, by his father Antoine Vincent Guyard, individually as heirs of Abdon Joesph Pierre-Louis, deceased and individually as heirs of Lawrence Pierre-Louis, deceased, Leon Noel Edmond Lorne, Melanie Suzie Martine, a minor, by her mother Marie-Nelly Martie individually as heirs of Serge Nal, deceased, Plaintiffs-Appellants, v. NEWVAC CORPORATION, a Florida corporation, Go 2 Galaxy, Inc., a Florida corporation, West Caribbean Airways, S.A., a Columbian corporation, Defendants-Appellees.

Sylvia Bapte, Individually and as personal representative of the Estates of Christiane Bapte, deceased, and Sylvain Bapte, deceased, Stephanie Isabelle Bapte, Aubin Casimir, Maryvonne Bapte, et. al., Plaintiffs-Appellants, v. Newvac Corporation, a Florida Corp., Go 2 Galaxy, Inc., a Florida corp., West Caribbean Airways, S.A., a Columbian Corp., Defendants-Appellees.

Henri Galbert, as personal representative of the Estate of Nicolas Massal, Deceased, et al., Plaintiffs, Nicolas Massal, Murielle Massal, Maeva Massal, Joseph Galbert, Marie Galbert, Joachim-Arnaud, Paul Berisson, Georges Berisson, Raphose, Marie Luce, Joseph Boniface, Scaglioni, Lanoir, Montlouis Felicte, Alex Peters, Berton, Raphaelle Couffe, Robert Couffe, Marie Peters, Violton, Sohan Ventakapen, Michel Ventakapen, Eudaric, Bertin Marie-Luce, Charles Cabrera, Rosamond, Catherine Cabrera, Denis Ramin, Laurence Ramin, Duranville, Henri Hospice, Adree Hospice, Maquiaba, Victorin, Iphaine, Legendart, Bermont, Florine, Laurent, Magloire, Sainte-Rose, Antiste, Jeremie Bocle, Nal, Dijon, Pepinter, Porro, Bapte, Taupin, Plaintiffs-Appellants Cross-Appellees The Estate of Francis Berton, The Estate of Marie-Pierre Cadare, The Estate of Raphaelle Couffe, Marie-Odile Monlouis-Felicite, The Estate of David Scaglioni, Plaintiffs, v. West Caribbean Airways, a Colombian corporation, Aseguradoro Colseguros, S.A., a Colombian corporation, Defendants-Appellees Newvac Corporation, a Florida corporation, Go 2 Galaxy, Inc., a Florida corporation, Jaques Cimetier, individually, Defendants-Appellees Cross-Appellants.

No. 07-15828.

No. 07-15830.

No. 07-15902.

United States Court of Appeals, Eleventh Circuit.

October 8, 2009.

Donald L. McCune, Jr., Mary Schivao, Motley Rice, LLC, Mt. Pleasant, SC, Lexi Hazam, Lieff, Cabraser, Heimann & Bernstein,

San Francisco, CA, Jorge Emilio Silva, Silva & Silva, Coral Gables, FL, Philip D. Parrish, Phillip D. Parrish, P.A., South Miami, FL, for Appellants.

Alan I. Mendelsohn, Donald J. Kassilke, Sher & Blackwell, LLP, Washington, DC, Joseph Thompson Thornton, Beverly D. Eisenstadt, Thornton, Davis & Fein, PA, Miami, FL, John Shelton Penton, Jr., Cole, Scott & Kissane, P.A., West Palm Beach, FL, Henry M. Knoblock, Stephen Coxhead, Knoblock, Dohner, Kim & Copeland, South Miami, FL, for Appellees.

Thomas M. Bondy, Douglas N. Letter, Sharon Swingle, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Amici Curiae, U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before BARKETT and HULL, Circuit Judges, and QUIST,^* District Judge.

BARKETT, Circuit Judge:

This consolidated appeal arises from several wrongful death actions brought by the survivors of passengers killed in the crash of a McDonnell Douglas MD-82 aircraft, operating as West Caribbean Airways Flight 708, in the mountains of Venezuela. All of the appellants/cross-appellees, plaintiffs in the proceedings below ("Plaintiffs"), are natural persons and residents of Martinique, a Department of the Republic of France, and represent the deceased passengers of Flight 708.¹ The appellees/cross-appellants, defendants below ("Defendants"), are (1) West Caribbean Airways, a Colombian corporation operating the chartered plane that crashed, (2) two Florida Corporations, Newvac and Go 2 Galaxy, Inc., and (3) the president of Newvac and Go 2 Galaxy, Jacque Cimetier.² Newvac is the entity that chartered the West Caribbean plane for round-trip flights from Martinique to Panama. After entering into the charter contract with West Caribbean, Newvac contracted with Globe Trotter Agency, a Martinique travel agency, and agreed to provide the aircraft it had chartered, as well as hotel, transportation, and sightseeing services, for excursions between Martinique and Panama. These excursion packages were then to be sold by Globe Trotter to individual passengers in Martinique.

Newvac moved to dismiss the suit on the basis of forum non conveniens and the district court granted the motion, finding that Martinique was the more convenient forum for resolution of the survivors' claims.³ Plaintiffs appeal that ruling, arguing that the doctrine of forum non conveniens does not apply because the international treaty that regulates the liability of carriers to passengers on international flights, the Convention for the Unification of Certain Rules for International Carriage by Air (the "Montreal Convention" or "Convention"), precludes application of the doctrine as a matter of international law.⁴ Alternatively, Plaintiffs argue that even if the Convention permits application of the doctrine, the district court abused its discretion in applying it here.

I.

The doctrine of forum non conveniens permits a court with venue to decline to exercise its jurisdiction when the parties' and court's own convenience, as well as the relevant public and private interests, indicate that the action should be tried in a different forum. A defendant seeking dismissal for forum non conveniens bears the burden of demonstrating:

(i) that an adequate alternative forum is available, (ii) that relevant public and private interests weigh in favor of dismissal, and (iii) that the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice. Pertinent private interests of the litigants include relative ease of access to evidence in the competing fora, availability of witnesses and compulsory process over them, the cost of obtaining evidence, and the enforceability of a judgment. Relevant public interests include the familiarity of the court(s) with the governing law, the interest of any foreign nation in having the dispute litigated in its own courts, and the value of having local controversies litigated locally.

Liquidation Comm'n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339, 1356-57 (11th Cir.2008) (quotations and citations omitted).

Plaintiffs argue that the district court was precluded from applying this doctrine by the Montreal Convention, which is the exclusive means by which international air travel passengers can seek damages for death or personal injury in cases covered by it.⁵ Chapter III of the Convention is entitled "Liability of the Carrier and Extent of Compensation for Damage." Article 33, located in Chapter III, is the jurisdictional provision which specifies in which fora such suits can be brought:

1. 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.

2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air ....

Thus, under Article 33 of the Convention, suits for damages by passengers on international flights can be filed in a limited number of fora, including, inter alia, the domicile of the "carrier" or the principal place of business of the "carrier." In the case of damage resulting from the injury or death of a passenger, suit may be brought in the passenger's permanent residence if the "carrier" operates air carriage services to or from that location.

The term "carrier" is undefined in the Convention. However, Chapter V of the Convention, entitled "Carriage by Air Performed by a Person other than the Contracting Carrier," addresses situations in which there is both a "contracting carrier" and an "actual carrier." Article 39, located in Chapter V of the Convention, provides the definitions for "contracting carrier" and "actual carrier":

The provisions of [Chapter V] 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.

These definitions are significant because Article 40, in Chapter V, provides that "[i]f an actual carrier performs the whole or part of carriage which, according to the contract referred to in Article 39, is governed by this Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in [Chapter V], be subject to the rules of this Convention, the former for the whole of the carriage contemplated in the contract, the latter solely for the carriage which it performs."

In turn, Article 45 provides that a plaintiff may bring an action for damages under the Convention against the actual carrier or the contracting carrier, or against both together or separately, and Article 46 specifies the fora in which a plaintiff may bring such a suit. Article 46...