On November 21, 2018, the United States District Court for the District of Columbia dismissed on forum non conveniens grounds the claims of all plaintiffs filed in the United States arising out of the disappearance of Malaysia Airlines Flight MH370.1 In a lengthy and thorough opinion, Judge Ketanji Brown Jackson ruled that the wrongful death and product liability litigation, encompassing 40 separate lawsuits consolidated by the Judicial Panel on Multidistrict Litigation, should be dismissed and litigated in Malaysia.
Flight MH370 disappeared over the southern Indian Ocean on March 4, 2014, en route to Beijing, China from Kuala Lumpur, Malaysia. Onboard were 12 crew members and 227 passengers, three of whom were American citizens. A massive international search and rescue effort was launched, but neither the plane nor any survivors were ever recovered. On January 28, 2015, the Malaysian Department of Civil Aviation (“MDCA”) announced that all aboard Flight MH370 were presumed deceased.
In her opinion, Judge Jackson applied the forum non conveniens factors found in Piper Aircraft Co. v. Reyno (namely that (1) there is an available and adequate alternative forum, and (2) the balance of various public and private interest factors indicates that maintaining the case in the current forum is comparatively inconvenient)2 to the plaintiffs’ claims against Malaysian Airlines arising under the Montreal Convention as well as claims against Boeing for negligence, wrongful death, and products liability.
Montreal Convention Claims Against the Airline
The court readily accepted the availability and adequacy of Malaysia as an alternative forum to litigate Montreal Convention claims against the airline, and cited multiple decisions that had previously analyzed the adequacy of Malaysia as a forum.3 Further, the court was unpersuaded by plaintiffs’ contention that certain Malaysian Airlines entities would be judgment-proof due to their lack of assets. The court reasoned that the entities are insured under policies from which any judgments or claims could be paid, and if they truly are judgment-proof as a result of a law passed by the Malaysian legislature, then the relief sought by plaintiffs would be equally difficult to procure in the United States as it would be in Malaysia.
In addressing Malaysia’s undeniably strong connections to the litigation, the court noted specifically that: the operator of the flight was Malaysia’s national air carrier; the flight departed from Malaysia; Malaysian air traffic controllers were the last persons to have direct contact with the pilot and crew, who were themselves Malaysian citizens; Malaysian officials were responsible for leading the civil safety investigation; and Malaysian authorities further conducted a separate criminal investigation concerning individuals who were known to have contact with the crew and aircraft. Further, the court noted that these cases would likely “present complex conflicts-of-law questions, which is another public interest factor that weighs in favor of dismissal on forum non conveniens grounds.”
The court held that the private interest factors also weighed in favor of litigating these cases in Malaysia. While plaintiffs agreed to make all damages-related evidence available in the United States, the court found that this was insufficient to make the United States a convenient forum. Because Article 21 of the Montreal Convention allows a carrier to defend against claims in excess of 113,000 Special Drawing Rights (SDRs) by demonstrating that the accident was not due to its negligence or wrongdoing, the court found that the discovery necessary to facilitate such an inquiry could become unduly burdensome if litigation proceeded in the United States. The court suggested that such liability-related evidence might include “satellite-communication evidence located in the United Kingdom, debris evidence in France and Australia, and search records that are also located in Australia,” as well as countless “personnel files, airline maintenance records, manuals, air traffic control recordings, video recordings, cargo records, and bank records” located in Malaysia.
The court was unpersuaded by plaintiffs’ suggestion that there would be no need for any liability-related evidence located in Malaysia because the investigation into the flight’s disappearance “did not unearth any issues with maintenance of the plane, the pilots, the weather, cargo, or anything else that pointed to the cause of the incident.” Plaintiffs cited no authority for their proposition and the court stated that it is a defendant’s right to develop and present their defenses. The court held that because plaintiffs sought damages in excess of the Montreal Convention’s cap of 113,000 SDRs, any defense “would necessarily involve discovery pertaining to the issue of fault, including exploration of any and all potential causes of the disappearance of Flight MH370.” Thus, the location of all evidence would be relevant and weighed in favor of dismissal.
Negligence and Products Liability Claims Against Boeing
The court also found Malaysia to be an available and adequate alternative forum to litigate the negligence and products liability claims against Boeing.
In weighing the public interest factors, the court noted that while Boeing is an American company, “the key question as far as the forum non conveniens balancing is concerned is whether the significant public interest of the country that manufactured the aircraft outweighs the public interest of the country that maintained and operated the ill-fated plane.” Courts evaluating similar cases have considered the public interest of the carrier’s country to be weighed most heavily in the context of their consideration of forum non conveniens.4 Because plaintiffs did not allege a specific defect with the plane, but instead based their claims on res ipsa loquitur grounds, the court was not persuaded that the interests of the United States in resolving the products liability claims against Boeing outweigh Malaysia’s interests.
In weighing the private interest factors, the court took into consideration Boeing’s agreement to make all evidence in its possession available in Malaysia. The court noted that because plaintiffs’ claims were based on res ipsa loquitur, in order to prevail plaintiffs would have to present evidence and arguments to rule out other likely causes of the plane’s disappearance such as “weather, terrorism, or crew sabotage.” Because such liability-related evidence is located in Malaysia, the United Kingdom, and Australia, the court held that this factor weighed in favor of dismissal. Additionally, much of the necessary damages-related evidence in these cases in located in Malaysia.
Finally, the court weighed considerations of Boeing’s ability to implead certain corporate entities controlled by the Malaysian government. Because potential questions of foreign sovereign immunity might prevent Boeing from impleading these entities in the United States, the court determined that Malaysia would be the proper venue for this litigation.
This decision provides a useful analysis of the weight to be assigned to the various private and public interest factors when litigation arising out of a non-U.S. accident involves both U.S. and non-U.S. defendants, as well as U.S. plaintiffs and decedents.
1 In re: Air Crash Over the Southern Indian Ocean, on March 8, 2014, No. MC 16-1184 (KBJ), 2018 WL 6133070 (D.D.C. Nov. 21, 2018).
2 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981).
3 See e.g., Giro, Inc. v. Malaysian Airline Sys. Berhad, No. 10 CIV. 5550 (JGK), 2011 WL 2183171, at *7 (S.D.N.Y. June 3, 2011) (holding that Malaysia is an adequate alternative forum under the Piper standard); Simcox v. McDermott Intl., Inc., 152 F.R.D. 689, 700 (S.D. Tex. 1994) (same); Jayaraman v. Salomon, Inc., No. 87 Civ. 2781 (MJL), 1991 WL 61071, at *4 (S.D.N.Y. Apr. 5, 1991) (same).
4 Schijndel v. Boeing Co., 263 F. App’x 555, 557 (9th Cir. 2008).