In November, the US Federal multidistrict litigation (MDL) judge dismissed all pending wrongful death cases arising from the disappearance of MH370 on forum non conveniens grounds, finding that Malaysia was an adequate forum for the litigation. This demonstrates the most recent application of the doctrine of forum non conveniens to an international air tragedy to direct litigation from the United States to another jurisdiction.

The plaintiffs in the MDL were generally either: (1) those asserting claims under the Montreal Convention against the airline; and (2) those asserting common law wrongful death and product liability claims. Most of the plaintiffs were foreign citizens, but 6 plaintiffs were US citizens and one was a legal resident; however, four plaintiffs had no apparent relationship to the victims. Along with this litigation, many other cases were brought in Malaysia, including claims related to 77 of the 88 victims represented in the MDL.

The Federal MDL court rejected the plaintiffs' claims that Malaysia was an inadequate forum because the Malaysian government had reorganized the airline, resulting in the airline having no assets. The court found that the airline had insurance to pay the claims. The court also found that the cases in Malaysia undermined the argument that the plaintiffs would be deprived all remedies or treated unfairly.

With respect to the forum non conveniens factors, the court found that the claims "overriding connections to Malaysia outweigh the connections these claims have to the United States." The judge also noted the following factors that favored dismissal:

  • The airline was Malaysia's national airline and maintained the aircraft;
  • Malaysian ATC last had contact with the crew;
  • Malaysian officials were responsible for the safety investigation;
  • The criminal investigation was conducted in Malaysia;
  • Evidence to prove the claims beyond the Montreal Convention's strict liability limit was outside of the United States; and
  • Majority of the causation evidence would be located outside the US, particularly for the product liability claims.

Last month's decision further solidifies forum non conveniens as an effective tool for defendants facing US litigation for international air accidents, as US courts have shown willingness to relocate Montreal Convention actions to venues outside the United States. For example, following the crash of West Caribbean Airways (WCA) in 2005—shortly after the 2003 ratification of the Montreal Convention—US district and appellate courts approved the use of forum non conveniens in a series of decisions. See In re West Caribbean Airways, SA, et al v. Newvac Corp, 619 F. Supp. 2d 1299 (S.D. Fla. 2007) and Galbert v. West Caribbean Airways, No. 07-15902 (11th Cir. 2009).

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