Saturday, February 12, 2011
Coming to, ... Er, Going from ... America
When an American citizen is killed in a foreign airline accident, where should family members bring a lawsuit? Do they have a right to sue in the United States?
The legal answer is complex and depends on many factors, but this month the Eleventh Circuit Court of Appeals -- the federal court that reviews certain decisions of the federal district courts in Alabama, Florida, and Georgia -- decided that a lawsuit filed in the United States by relatives of an American man who died in the worst accident in Brazil's aviation history was properly dismissed on the basis of the legal doctrine known as forum non conveniens. (See Tazoe v. Airbus, S.A.S., --- F.3d ---- (11th Cir. 2011)).
Three years ago, on July 17, 2007, TAM Linhas Aéreas Flight 3054 skidded off the runway as it landed in São Paulo, Brazil. The airplane crashed into a warehouse and fueling station and all pilots, attendants, and passengers died, a total of 187 people, including 12 people on the ground. All of the passengers were citizens or residents of Brazil, except Roberto Tazoe, who was a Florida resident. According the Court of Appeals:
The airplane had a problem: an inoperative thrust reverser on the number two engine. TAM knew about the problem, but determined that the airplane could fly safely if its pilots followed precise landing procedures. Before the accident, the airplane successfully completed about 40 flights with the inoperative reverser, all without incident.
Unfortunately, on the day of the accident, the pilots of the airplane strayed from the correct landing procedure. The pilots left the throttle on the number two engine in the “climb” position instead of bringing it to “idle.” That misstep created an “assymetrical thrust condition” when the pilots deployed the other thrust reverser. As a result, the spoilers of the airplane did not deploy and its autobrakes failed to engage. The airplane overran the runway and crashed.
U.S. District Court Judge Marcia G. Cooke dismissed all actions associated with the accident on the ground of forum non conveniens. Generally, under that equitable, common law doctrine, a United States court may decline jurisdiction over a matter otherwise properly before it where parties can try their case in the courts of a foreign country more conveniently. That was the case for Mr. Tazoe.
After the manufacturers agreed to submit themselves to the jurisdiction of Brazil and toll its statute of limitations, Judge Cooke concluded that Brazil was an adequate and available forum and dismissed the case.
The Court of Appeals agreed that the trial court "did not abuse its discretion when it dismissed the complaints of the Brazilian family members and the family members of Roberto Tazoe based on forum non conveniens. The record supports as reasonable the determination of the district court that Brazil is an adequate and available alternative forum, the private and public factors weigh in favor of dismissal, and the family members can reinstate their complaints in Brazil without undue inconvenience or prejudice." However, the Court of Appeals disagreed with the trial court's dismissal of a lawsuit brought by Anna Finzsch, a Brazilian mother whose summons and complaint had yet to be served on the manufacturers potentially involved in the accident.
This is at least the second recent defense-favorable court decision out of the Eleventh Circuit to have a substantial impact on the law of forum non conveniens in aviation accident cases. (See Pierre-Louis v. Newvac Corp., 584 F.3d 1052 (11th Cir. 2009)). Whether other federal circuits will follow this precedent remains to be seen.