In re AIR CRASH DISASTER NEAR NEW ORLEANS, LOUISIANA ON JULY 9, 1982.

Luis Alberto TRIVELLONI-LORENZI, and Susanna Electra Trivelloni-Lorenzi, Plaintiffs-Appellees, v.

PAN AMERICAN WORLD AIRWAYS, INC., et al., Defendants-Appellants.

Ernesto Serio PAMPIN LOPEZ, Individually and As Administrator of the Estate of His Deceased Mother Sara E. Lopez De Pampin, Plaintiff-Appellee, v. PAN AMERICAN AIRWAYS, INC., and United States of America, et al., Defendants-Appellants.

Nos. 84-3832, 84-3833.

United States Court of Appeals, Fifth Circuit.

July 21, 1987.

Deutsch, Kerrigan & Stiles, Francis G.

Weller, Frederick R. Bott, Darrell K. Cherry, Robert E. Kerrigan, Jr., New Orleans, La., for defendants-appellants.

Stephen B. Murray, Romualdo Gonzalez, Patricia R. Murray, New Orleans, La., for plaintiffs-appellees.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GEE, RUBIN, GARZA, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL, and JONES, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge: ^{Footnote *} These consolidated cases arise from the crash shortly after takeoff of Pan American World Airways Flight 759 near New Orleans, Louisiana. The plaintiffs are foreign citizens who sought recompense for their injuries in a Louisiana federal court. Pan American World Airways, Inc. (Pan American) invoked the doctrine of forum non conveniens, insisting that the plaintiffs' home country of Uruguay is the proper forum for the resolution of plaintiffs' claims. We took these cases en bane to decide whether the district court properly applied the doctrine of forum non conveniens. For the reasons stated below, we hold the plaintiffs' causes of action were properly tried in a Louisiana federal court.

I.

On July 9, 1982, Pan American Flight 759 crashed in Kenner, Louisiana, shortly after takeoff from Moisant International Airport. All 154 persons aboard the plane perished. Eyewitness accounts established that 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 later crash investigation concluded that a microburst wind

shear was a contributing cause to the acci- stipulate to liability, dent.

Within weeks of this tragic accident, personal representatives of many of the deceased passengers filed wrongful death suits and survival actions in various United States district courts.^{Footnote 1} On August 12,

1982, plaintiffs filed their suits in the United States District Court for the Eastern District of Louisiana against Pan American, the Boeing Company (manufacturer of the airplane), and the New Orleans Aviation Board (operator of Moisant International Airport). Plaintiffs in these consolidated cases are citizens and residents of Uruguay, and are heirs of passengers killed in the crash of Flight 759. Luis Alberto and Susanna Electra Trivelloni-Lorenzi (Trivelloni children) brought suit for the wrongful death and as survivors of their parents Luis Alberto and Electra Iris Trivelloni who perished in the crash. Ernesto Serio Pampin Lopez (Pampin) brought suit for the wrongful death and as survivor of his mother Sara Lopez de Pampin, his sister Amparo Pampin Lopez, and his aunt Irma Lopez de Alvarez who perished in the crash. All of the decedents were citizens and residents of Uruguay who were on vacation in the United States.^{Footnote 2}

Plaintiffs 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), 28 U.S.C. § 2671 et seq,, before doing so. On April 29, 1983, plaintiffs 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, Pan American had indicated to the district court that Pan American and the United States were prepared to Plaintiffs did not have access to the information because it had been placed in a sealed minute entry. The information was not disclosed to plaintiffs until mid-summer of 1983, over one year after the crash.

At a pretrial hearing on July 29, 1983, Pan American advised the district court and plaintiffs that it intended to move to dismiss plaintiffs' cases on the ground of forum non conveniens. Pan American's counsel stated that "we're going to take the position that if liability is not an issue ... that the damage issues in the foreign [plaintiffs'] cases belong in the countries from which they came...." The district court instructed Pan American to file its motion to dismiss for forum non conveniens, but in an effort to expedite matters, the court informed Pan American that its motion would be denied. Recognizing that all the parties knew the United States was to be joined as a defendant after the administrative process was completed and anticipating such joinder, the district court stated: The government is a defendant; the government is going to remain a defendant. I can tell you how I'm going to rule on the motion, so we can go on to the next issue. Really, I'm going to rule that you have no right to that transfer, and I'm going to rule that that issue hanging there is not going to stop me from ruling on it, that I'm not going to do it, and you can sign the stipulations.

We're going to go to trial here on damages, with the government as a defendant and with the crash happening here ... The crash was here, and the United States is a party.

On August 22, 1983, Pan American did file its motion to dismiss plaintiffs' cases on the ground of forum non conveniens.^{Footnote 3}

In connection with the motion, Pan American stated that it would: (1) submit to 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. In its motion Pan American argued that the United States was an unnecessary party since Pan American had guaranteed payment of any judgment rendered against Pan American 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. In a minute entry docketed September 6, 1983, the district court denied the motion. Pan American moved for reconsideration or alternatively for certification of the ruling for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court denied both requests. Pan American petitioned this court for a supervisory writ of mandamus, but on January 18, 1984, we refused to issue the writ. ^{Footnote 4}

On December 16, 1983, while Pan American was attempting to gain interlocutory review of the district court's denial of its motion to dismiss for forum non conveniens, plaintiffs, Pan American, and the United States entered into a stipulation as to liability, damages, defenses, and payment under any subsequent judgment. ^{Footnote 5}

As anticipated by the parties, plaintiffs' administrative claims under the FTCA were unsuccessful, ^{Footnote 6} and on February 17, 1984, plaintiffs amended their complaints to make the United States a party defendant. ^{Footnote 7}

The final procedural posturing of these cases occurred when defendants Boeing Company and New Orleans Aviation Board were dismissed with prejudice pursuant to the December 16 stipulation.

With the parties to these actions finally aligned, the district court made several pretrial decisions on the law which would apply. The court held that Pan American had failed to show any significant difference between the law of Uruguay and Louisiana; therefore, the law of Louisiana would apply. The court, however, later granted Pampin'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 Pan American's defense that sought to invoke the damages limitations of the Warsaw Convention and the Montreal Agreement ^{Footnote 8} because the notices of liability limitation on the plaintiffs' tickets were not furnished in the required ten-point type size.

Both the Trivelloni and Pampin cases went to trial on the same day. The trials were physically consolidated while the juries heard from two witnesses to the crash

and from an anthropological expert who testified as to South American mores and familial relationships. The trials were then separated for presentation of evidence particular to each family. The Trivelloni jury awarded $25,000 each for the pre-impact pain and suffering of Luis and Electra Trivelloni, $75,000 to each Trivellino child for the death of their parents, and $3,530 for loss of their parents' personal effects, for a total of $203,530. The Pampin jury awarded $25,000 for the pre-impact pain and suffering of each of Ernesto Pampin's deceased relatives, $12,000 for the post-impact pain and suffering of Pampin's aunt Irma Lopez de Alvarez, $250,000 for the death of his mother, $150,000 for the death of his sister, $13,000 for the death of his aunt, and $16,853.89 for loss of his relatives' personal effects, for a total of $516,853.89. The district court entered judgment in each case against Pan American and the United States consistent with the verdicts and denied all post-trial motions.

On appeal a panel of this court affirmed the district court's denial of Pan American'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 Pampin recovery for the death of his aunt, and affirmed the district court's refusal to apply the Warsaw Convention/Montreal Agreement damage limitation. ^{Footnote 9}

In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982,  789 F.2d 1092 (5th Cir.1986). As to the damages awarded, the panel affirmed the award of pre-impact pain and suffering for each family victim but based upon the evidence ordered a remittitur to $7,500 for each decedent or alternatively a new trial. Id. at 1099. The award of post-impact damages to Pampin for the pain suffered by his aunt was affirmed as was the award H53 to Pampin for the loss of his mother. ^{Footnote 10}

Id. at 1100. The panel affirmed the damage award given to Pampin for the loss of his sister but ordered a remittitur to $50,000 or, alternatively, a new trial. Id. at 1100. Finally, the panel affirmed the district court's award of prejudgment interest against Pan American but reversed the prejudgment interest award against the United States because such award was prohibited by federal statute. Id. at 1101 (citing 28 U.S.C. § 2674).

Neither party was particularly pleased with the outcome of the panel decision. Plaintiffs applied for panel rehearing on the issue of the remittiturs of the awards for pre-impact damages. Pan American applied for en bane rehearing on the forum non conveniens issue pursuant to Fed.R. App.P. 35 and Loc.R. 35. We granted rehearing en bane to consider particularly the forum non conveniens issue. In re Air Crash Near New Orleans, Louisiana on July 9, 1982,  795 F.2d 381 (5th Cir.1986).

Several issues relating to the doctrine of forum non conveniens are raised in this appeal. We will address 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. We now turn to a discussion of each issue.

II.

The doctrine of forum non conveniens rests upon a court's inherent power

to control the parties and cases before it and to prevent its process from becoming an instrument of abuse or injustice. Through this power a federal trial court may decline to exercise its jurisdiction, even though the court has jurisdiction and venue, where it appears that the convenience of the parties and the court and the interests of justice indicate that the action should be tried in another forum. Piper Aircraft Co. v. Reyno,  454 U.S. 235, 250, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); Koster v. Lumbermens Mutual Casualty Co.,  330 U.S. 518, 530, 67 S.Ct. 828, 835, 91 L.Ed. 1067 (1947); Gulf Oil Corp. v. Gilbert,  330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The doctrine arose in the areas of admiralty and equity, but it is now applied in a wide spectrum of cases in both federal and state courts. ^{Footnote 11}

Syndicate 420 At Lloyd's London v. Early American Insurance Co.,  796 F.2d 821, 825 (5th Cir.1986) (maritime insurance contracts case) with Watson v. Merrell Dow Pharmaceuticals,  769 F.2d 354, 359-60 (6th Cir.1985) (strict liability pharmaceutical case). See generally Note, The Convenient Forum Abroad Revisited: A Decade of Development of the Doctrine of Forum Non Convenient in International Litigation in the Federal Courts, 17 Va.J.Int'1 L. 755 (1977). Before we examine the forum non conveniens analysis that is to be applied in these cases, we must address two preliminary matters.

A." First, since these cases are based upon diversity jurisdiction, we are faced with the question of whether we are bound by Louisiana forum non conveniens law or federal forum non conveniens law under the teachings of Erie RR. Co. v. Tompkin