In Re Air Crash Disaster Near New Orleans, Louisianna On July

9, 1982 821 F.2d 1147 (5th Cir. 1987)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

D's Flight 759 crashed in Kenner, Louisiana, shortly after takeoff. All 154 persons aboard the plane perished. Seconds after takeoff Flight 759 suddenly descended and pitched to one side. The plane's wing struck a tree causing the wings to swing perpendicular to the ground. Within seconds the plane crashed exploding on impact. A crash investigation concluded that a microburst wind shear was a contributing cause to the accident. Personal representatives of the deceased passengers filed wrongful death suits and survival actions in various United States district courts. Ps filed their suits in the United States District Court for the Eastern District of Louisiana against D, the Boeing Company (manufacturer of the airplane), and the New Orleans Aviation Board (operator of Moisant International Airport). Ps are citizens and residents of Uruguay and are heirs of passengers killed in the crash of Flight 759. Ps also intended to join the United States as a defendant, but they had to exhaust their administrative remedies under the Federal Torts Claims Acts (FTCA). On April 29, 1983, Ps commenced their administrative claims against the United States. At the time plaintiffs initiated their administrative claims against the United States, they were not aware that on January 26, 1983, D had indicated to the district court that D and the United States were prepared to stipulate to liability. The information was not disclosed to plaintiffs until mid-summer of 1983, over one year after the crash. D intended to move to dismiss Ps' cases on the grounds of forum non conveniens. The court informed D that its motion would be denied. Recognizing that all the parties knew the United States was to be joined as a defendant. D filed the motion anyway. D stated that it would: (1) submit to the jurisdiction of the courts of Uruguay, (2) concede liability, (3) waive any statute of limitations defense, (4) waive the Warsaw Convention's limitation of damages provision, and (5) guarantee satisfaction of any judgment entered against it in Uruguay. D argued that the United States was an unnecessary party since D had guaranteed payment of any judgment rendered against D in Uruguay. The motion went on to contend that dismissal on the basis of forum non conveniens was proper because only the damages issue remained and that this issue could best be litigated in Uruguay. The district court denied the motion. Eventually, D petitioned for a supervisory writ of mandamus, but on January 18, 1984, the appeals court refused to issue the writ. Eventually, the court held that D had failed to show any significant difference between the law of Uruguay and Louisiana; therefore, the law of Louisiana would apply. The court later granted a plaintiff's motion requesting that Uruguayan law apply insofar as it recognized a nephew's claim for the wrongful death of an aunt; Louisiana law recognized no such claim. The court also struck D's defense that sought to invoke the damages limitations of the Warsaw Convention and the Montreal Agreement because the notices of liability limitation on Ps' tickets were not furnished in the required ten-point type size. Ps got verdicts in two trials. On appeal, the court affirmed the district court's denial of D's motion to dismiss for forum non conveniens, affirmed the district court's decision to apply Louisiana law to the damages issues with the exception that Uruguayan law would apply to permit a plaintiff recovery for the death of his aunt, and affirmed the district court's refusal to apply the Warsaw Convention/Montreal Agreement damage limitation. Ps applied for panel rehearing on the issue of the remittiturs of the awards for pre-impact damages. D applied for en banc rehearing on the forum non conveniens issue pursuant to Fed.R.App.P. 35. The court granted rehearing en banc to consider particularly the forum non conveniens issue. The court addressed the following questions: (1) In applying forum non conveniens in a diversity action, does a federal court apply the forum non conveniens law of the state in which it sits or federal forum non conveniens law; (2) Can a federal district court apply the doctrine of forum non conveniens in a case governed by the Warsaw Convention; (3) If federal law applies, what are the requirements of the doctrine of forum non conveniens; (4) How should the doctrine be applied by a district court; (5) What is our standard of review; and, finally (6) Was the doctrine applied properly in these cases.