July 17, 2013
The recent Asiana Airlines plane crash in San Francisco and the deadly train derailment in Lac-Mégantic, Quebec, collectively killed more than 40 persons and injured hundreds more. Although investigations continue, early reports suggest that critical errors lead to the fatal crashes. Families of the injured and deceased will likely seek to hold any wrongdoers accountable through the civil justice system.
[Disclosure: The author’s law firm is investigating claims on behalf of families impacted by both disasters.]
Lawsuits resulting from both tragedies are also likely to present one of the more difficult discretionary questions courts face: in what circumstances can lawsuits involving international parties be brought in US courts?
Some commentators contend that US courts have become increasingly hostile to cases involving international parties, citing, for example, the recent Supreme Court decision holding that Alien Tort Statute claims arising wholly abroad cannot be brought in US courts. Other commentators find no general trend in US courts and note that the decision whether a case involving international parties should remain in the US is largely within the trial court’s discretion.
Which are the proper venues for resolving the lawsuits arising from these tragedies will likely turn, in significant part, on whether the doctrine of forum non-conveniens precludes US courts from hearing the cases.
Forum non-conveniens (FNC) is the legal doctrine that permits a court to decline to exercise its jurisdiction where it concludes that it is not the proper forum in which the lawsuit should be heard. The doctrine’s modern formulation requires a court, in its discretion, to weigh a series of factors often grouped into two categories: private interest factors and public interest factors.
Private interest factors include:
- ease of access to sources of proof;
- availability of compulsory process for and cost of obtaining attendance of witnesses;
- possibility of view of premises, if appropriate;
- enforceability of a judgment; and
- all other practical problems that make trial of a case easy, expeditious, and inexpensive.
Public interest factors include:
- administrative difficulties for courts;
- imposing jury duty on citizens from a community that has no connection with the origin of the litigation;
- communities have an interest in having localized controversies decided in their community; and
- the State’s interest in applying and deciding complex issues of its own law rather than having a foreign forum decide those issues.
A touchstone of the FNC inquiry has been that courts have case-specific flexibility when balancing the relevant factors. The inquiry’s mandated flexibility has, to some extent, come at the expense of certainty. As Justice Scalia observed, “[t]he discretionary nature of the doctrine, combined with the multifariousness of the factors relevant to its application . . . make uniformity and predictability of outcome almost impossible.”
The Asiana Airlines crash and the Lac-Mégantic disaster share many commonalities: devastating loss of life and many life-changing injuries; international conduct; and international parties. There are also differences that might prove significant for the FNC inquiry. For example, the Asiana Airlines crash occurred on US soil, although many of the injured and at least some of the potential defendants are international. (Claims against the airlines are governed by international treaties, which mandate a separate venue analysis.) The Lac-Mégantic disaster occurred on Canadian soil and most of the injured and killed are believed to be Canadian citizens; although, many of the potential defendants are American companies and individuals.
As the investigations into these tragedies develop, additional facts are likely to emerge that bear on the threshold FNC question. At this early stage, and given the discretionary nature of the FNC analysis, it remains difficult to predict where the legal claims will be resolved. Regardless of where the lawsuits are ultimately heard, justice requires that all wrongdoers be held accountable.