Facts
Proceedings
Decision
Comment
In a December 7 2011 judgment(1) the First Civil Chamber of the Court of Cassation reiterated that the jurisdiction chosen by the plaintiff under Article 33 of the Montreal Convention is the sole jurisdiction before which a claim may be pursued, and that this rule overrides all other domestic rules which could otherwise apply.
On August 16 2005 an MD82 aircraft chartered by Newvac (a US corporation established in Florida) and operated by West Caribbean Airways (a Colombian corporation) crashed in Venezuela while flying from Panama City, Panama to Fort-de-France, Martinique (France); there were no survivors.
Some of the victims' families commenced proceedings under the Montreal Convention against Newvac (the contractual carrier) and West Caribbean Airways (the actual carrier) before the US federal courts of Florida.
Article 33 of the Montreal Convention provides that:
"an action for damages must be brought, at the option of the plaintiff, in the territory of one of the State Parties, either before the court of the domicile of the carrier…or where it has a place of business through which the contract has been made or before the court at the place of destination." (emphasis added)
In addition, "in respect of damage resulting from death or injury of a passenger", an action may be brought before the court where the passenger has his or her permanent residence (among other possible jurisdictions).
Pursuant to a number of court rulings, the US Court of Appeals for the 11th District dismissed the claimants' action on the grounds of forum non conveniens. In particular, the court declined jurisdiction in favour of the Fort-de-France First Civil Court, and required the claimants, among other things, to commence fresh proceedings by a certain deadline.
By August 2007, 669 claimants (including some who had issued proceedings in Florida) had already commenced conservatory proceedings before the Fort-de-France court, but these proceedings were held in abeyance while awaiting a ruling from the US court.
On January 23 2009 these 669 plaintiffs commenced proceedings against the contractual carrier before the Fort-de-France civil court, seeking the following relief:
- a declaration that the court lacked jurisdiction or had no power to rule on this case;
- a finding of lis alibi pendens (action pending elsewhere) by reference to the pending appeal in Florida, and an order that the matter be referred to the courts of Florida; or
- an award of damages.
Newvac commenced third-party proceedings against West Caribbean Airways and its Colombian insurers.
The Fort-de-France First Civil Court refused to decline jurisdiction and a transfer of the matter to the US court. The claimants appealed on the grounds that:
- proceedings were pending before several jurisdictions; and
- the proceedings before the US court, which had been first seized, were clearly related to the action pursued by the families of crew members in the United States.
The Fort-de-France Court of Appeal confirmed the first judgment. The claimants appealed to the Court of Cassation.
The claimants argued that since they had chosen to pursue their action under Article 33 of the Montreal Convention before the US court, no other jurisdiction could be imposed on them, and that therefore the Fort-de-France Court of Appeal judgment should be overturned. They also argued that a domestic rule relating to forum non conveniens could not override the imperative nature of Article 33.
The Court of Cassation annulled the Fort-de-France Court of Appeal judgment. The reason for doing so was that the court of appeal had in effect sought to compel the claimants to pursue proceedings before the French courts in circumstances where Article 33 entitled the claimants alone to select the jurisdiction before which to pursue their claim. The court also held that the jurisdiction of the French courts was therefore "unavailable" to the parties.
The procedural position in this case is peculiar. In light of the wording of Article 33, it seems astonishing that the US appeal court sought to compel the claimants to pursue an action before the courts of a jurisdiction which they had not chosen.
The Court of Cassation's judgment adopts a strict construction of Article 33 and underlines the overriding nature of the option conferred on plaintiffs.
The Court of Cassation went one step further in this case. Usually, the annulment of a court of appeal judgment would restore the parties to the position in which they found themselves following the proceedings at first instance; the Court of Cassation would thus normally designate a different appeal court, known as a Cour de Renvoi, to rule on the further appeal of the initial judgment. In this case the Court of Cassation held that no further appeal was appropriate, since French jurisdiction was unavailable to the parties, by reason of the plaintiffs' choice to pursue their action in the US court.
The plaintiffs now have no other option but to return to the US courts and hope that these courts will ultimately rule that even though that forum may appear less convenient than others, such consideration cannot override the choice made by the claimants in accordance with Article 33.
This case illustrates the practical problems which arise when identical provisions of the same convention are not applied or construed consistently in all jurisdictions.
For further information on this topic please contact Olivier Purcell or Jean-Baptiste Charles at Holman Fenwick Willan LLP by telephone (+33 1 44 94 40 50), fax (+33 1 42 65 46 25) or email ([email protected] or [email protected]).
Endnotes