In re West Caribbean Airways, S.A. (619 F. Supp. 2d 1299, 2007)

Citations

619 F. Supp. 2d 1299

Full opinion text

PRELIMINARY ORDER ON DEFENDANTS’ MOTION TO DISMISS ON GROUNDS OF FORUM NON CONVENIENS

URSULA UNGARO, District Judge.

THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss on Grounds of Forum Non Conveniens. D.E. 54 This order follows a May 11, 2007 status conference during which the parties agreed to brief the following discrete issues pertaining to Defendants’ Motion: (1) whether Newvac is a “contracting carrier” within the scope of the Montreal Convention; and, whether the Court may apply the forum non conveniens doctrine in an action arising under the Montreal Convention. See D.E. 94 (Order Setting Briefing Schedule); 95 (Order Requesting a Statement of Interest from the United States); 97 (Tr. of Status Conf.). The Court has considered the parties’ memoranda (D.E. 101, 113), the United States’s Statement of Interest (D.E. 116), and is otherwise fully advised in the premises.

Facts

This action arises out of the August 16, 2005 airplane crash in Venezuela of West Caribbean Airways flight 708, while en route from Panama to Martinique. Plaintiffs are, and the decedents were, residents of Martinique, a Department of the Republic of France. See D.E. 152 (Am. Compl.) at paras. 7, 74. Defendant West Caribbean Airways, S.A. is a Colombian corporation with offices in Medellin, Colombia. Id. at para. 9. Defendants Newvac Corporation and Go 2 Galaxy, Inc. are Florida corporations. Id. at para. 15.

On March 15, 2005, Newvac entered into a “charter contract” with West Caribbean Airways in Medellin, Colombia, pursuant to which West Caribbean was to provide a 152-passenger MD-81 aircraft and crew, for charter flights occurring during May, July and August 2005. See D.E. 99 (MeCune Decl.), Ex. “5” (English translation of Charter Contract, originally in Spanish, executed by Jacques Cimetier on behalf of Newvac, d/b/a Go-2 Vacations). Thereafter, on April 25, 2005, Newvac entered into a “contract for air chartering” with Globe Trotter Agency, a travel agency in Martinique, whereby Newvac agreed to provide the aircraft it chartered from West Caribbean to Globe Trotter for a series of excursions between Martinique and Panama. See D.E. 99 (MeCune Deck), Ex. “7” (English translation of Charter Contract, originally in French, executed by Jacques Cimetier on behalf of Newvac, d/b/a Go-2 Vacations). Newvac also provided Globe Trotter with the hotel, transportation and “sightseeing” for these excursions. See D.E. 145 (Cimetier Depo.) at 185:6-186:4. All of the passengers were killed when West Caribbean’s aircraft crashed during their return trip from Panama following one of the excursions sold by Globe Trotter. See D.E. 152 (Am. Compl.) at paras. 31-33, 41, 52, 75; D.E. 113 (Defs.’ Reply) at 5.

Contracting Carrier

The parties dispute whether Newvac is a “contracting carrier,” as that term appears in Article 39 of the Montreal Convention (titled “Contracting Carrier — Actual Carrier”), which states:

The provisions of this Chapter apply when a person (hereinafter referred to as “the contracting carrier”) as a principal makes a contract of carriage governed by this Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as “the actual carrier”) performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part a successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary.

Montreal Convention, art 39. This issue has importance because Plaintiffs wish to argue that this Court has jurisdiction over, and is required to adjudicate this dispute pursuant to Articles 33 and 46 of the Montreal Convention due to Newvac’s domicile in the Southern District of Florida. See, e.g., D.E. 101 (Pls.’ Mem. in Opp’n to Mot.) at 4-5.

Plaintiffs first submit that there must be a “contracting carrier” in this case because the actual carrier — West Caribbean Airways — “had no opportunity to enter into a direct contractual relation with the passengers,” and according to Plaintiffs, only Newvac fits within the term’s definition. Id. at 6. Specifically, Plaintiffs submit that Newvac acted as a principal in this case because it profited by contracting for the seating capacity on the West Caribbean aircraft, thereafter reselling it for a higher price to Globe Trotter, which acted on behalf of passengers when it sold individual seats on the aircraft. Id. Plaintiffs add that West Caribbean performed “the whole or part of the carriage” under the authority of its contract with Newvac. Id. at 6-7 (also citing law review articles that Plaintiffs submit in support of their argument that a tour operator that packages and resells air transportation is a “contracting carrier” under the Montreal Convention).

Plaintiffs further note that the term “carrier” is not defined in the Warsaw or Montreal Conventions, and therefore, urge consideration of how the United States defines “carrier” in other related contexts. Id. at 8. In this regard, Plaintiffs cite section 40102(a)(2) of the Federal Aviation Act (i.e., 49 U.S.C. § 40102(a)(2)), which defines an “air carrier” as “a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.” Id. (emphasis added). In addition, Plaintiffs cite 14 C.F.R. § 380.2, promulgated thereunder, which states in pertinent part: “Indirect air carrier means any person who undertakes to engage indirectly in air transportation operations and who uses for such transportation the services of a direct air carrier.” Id. Plaintiffs also refer to the Air Transportation Operations Inspector’s Handbook of the U.S. Federal Aviation Administration, Order 8400. 10, Change 36, Vol. 2, Ch. 1, § 2 at 2-12, which provides in pertinent part that:

An indirect air carrier is a company that contracts aircraft and crew services from an air carrier or commercial operator but may not engage in-control over the operational function of any flight. Examples of indirect air carriers include freight forwarders, brokers, or public charter operators. An indirect air carrier will act as an agent for either the customer or the air carrier ....

See D.E. 99 (McCune Deck), Ex. “12”. In addition, Plaintiffs cite federal cases supporting the proposition that travel agents, tour operators, charterers and nominal “social clubs” that sell tours and air transportation publicly may be considered “indirect air carriers” subject to certification and similar requirements under the FAA. See D.E. 101 (Pis.’ Mem. in Opp’n to Mot.) at 9 (citing Monarch Travel Servs. v. Associated Cultural Clubs, 466 F.2d 552 (9th Cir.1972), cert. denied, 410 U.S. 967, 93 S.Ct. 1444, 35 L.Ed.2d 701 (1973); Arkin v. Trans Int’l. Airlines, Inc., 568 F.Supp. 11 (E.D.N.Y.1982); U.S. v. Caribbean Ven tures, Ltd., 387 F.Supp. 1256 (D.N.J. 1974)).

Plaintiffs also cite the U.S. Department of Transportation’s “Notice on the Role of Air Charter Brokers in Arranging Air Transportation,” which states in pertinent part:

The Enforcement Office has become aware that there are air charter brokers not holding economic authority from the Department who solicit and contract directly with a charter customer for air transportation and then solicit and separately contract directly with a direct air carrier to operate the air service promised to the charter customer under the charter broker’s contract with that customer. With respect to payment for the proffered air transportation, two separate transactions commonly occur: (1) The air charter broker collects all of the monies paid by the charter customer pursuant to the broker’s contract with the customer, and (2) the air charter broker then turns over a portion of these monies to the direct air carrier pursuant to the broker’s separate contract with the carrier. In such instances, the air charter broker is not acting as an agent for the operating carrier or for the charter customer. Rather, the air charter broker is acting as a principal in both transactions, and, with respect to its relationship with the customer, is engaged in air transportation as an indirect air carrier without economic authority in contravention of the statutory and Department licensing requirements described above.

Id. (citing 69 Fed.Reg. 61429-02, 61430 (2004)). Plaintiffs submit that this description fits Newvac’s role in the instant case, as Newvac made two separate transactions, one with Globe Trotter and the other with West Caribbean, making a profit on the difference between what it paid for the air transportation and the price it received from Globe Trotter. Id. at 9-10.

Finally, Plaintiffs suggest Newvac is a “loophole airline” and that public policy dictates that therefore, Newvac be considered a “contracting carrier.” Id. at 10. The “loophole airline” label is given to unregulated U.S. entities that compete with U.S. carriers by chartering cheaper foreign-flagged aircraft with less stringent safety standards. Id. The problem of “loophole airlines” was addressed in a 1991 hearing before the Subcommittee on Investigations and Oversight of the U.S. House of Representatives’ Commission on Public Works and Transportation. Id.

In response to Plaintiffs’ arguments, Defendants maintain that Newvac was not a “contracting carrier” because there were no passengers with whom to contract when Newvac entered into its contract with Globe Trotter. See D.E. 113 (Defs.’ Reply) at 4. Thus, Defendants submit that Newac could not have made a “contract of carriage” with any “passenger” nor “a person acting on behalf of the passenger,” as required by the literal terms of Article 39. Id.

Defendants add that Newvac was an “independent intermediary” not in privity with any passenger in that: (a) Newvac sold the entire capacity of each flight to Globe Trotter; (b) it was for Globe Trotter, at its own risk, to sell individual seats to passengers; and; (c) the “carrier” to operate the flights was West Caribbean. Id. at 4-5. Further, Defendants note that Globe Trotter advertised the subject flights, solicited the passengers, and entered into “contracts of carriage” at the retail level with each of them. Id. Thus, Defendants submit that it is impossible to argue that Newvac, whether as principal or agent, entered into any contracts of carriage with any of the passengers. Id.

With respect to Plaintiffs’ argument that Newvac acted as a principal because it sold the seats on the aircraft for more than it paid West Caribbean, Defendants submit that if that is the test, then Globe Trotter was likewise acting as a principal in entering into contracts of carriage with the passengers because Globe Trotter sold the seats to each passenger for more than it paid Newvac. Id. at 5. According to Defendants, “it is an entirely illogical leap for plaintiffs to argue that merely because Newvac was acting as a principal vis-a-vis [West Caribbean], it was also acting as a principal in making contracts of carriage with the individual passengers.” Id.

Defendants also note, respecting Plaintiffs’ citation to U.S. Department of Transportation precedent and law, that New-vac’s contracts with West Caribbean and Globe Trotter were executed abroad. Id. at 5-6. Accordingly, Defendants submit that “[flor plaintiffs to argue that U.S. or U.S.D.O.T. law should apply to such foreign executed contracts, especially when the flight had no contact with the United States and none of the passengers was an American citizen or resident, would represent an extraterritorial extension of U.S. jurisdiction that would be both unprecedented and highly precarious in the history and current practice of international air law.” Id. at 6.

Finally, Defendants submit that Plaintiffs’ position would be bad policy in that it would expose “ordinary travel agents, individuals and small companies” to full common carrier liability. Id. at 6. According to Defendants, the liability requirements of a carrier operating to or from the United States are minimally $300,000,000, and for France $450,000,000. Id. Thus, Defendants maintain that imposing such requirements on individuals like Cimetier or companies like Newvac “would jeopardize the economic viability of very substantial segments of the airline industry.” Id.

Treaty Interpretation Principles

As noted in Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991):

When interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used. Other general rules of construction may be brought to bear on difficult or ambiguous passages. Moreover, treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.

Id. at 534-35, 111 S.Ct. 1489 (internal citations and quotation marks omitted); see also El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (stating: “It is our responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties. Because a treaty ratified by the United States is not only the law of this land, see U.S. Const., Art. II, § 2, but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history (travaux pr'eparatoires) and the postratification understanding of the contracting parties”) (internal citation and quotation marks omitted). Further, “[although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.” Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982).

Analysis

Again, Article 39 of the Montreal Convention states:

Montreal Convention, art. 39. The Court finds that the foregoing language is unambiguous and that under the facts of this case, it applies to Newvac.

By the plain terms of Article 39, Newvac is a “contracting carrier” in this case if it was: (1) a person (“the contracting earner”) that made a contract of carriage governed by the Montreal Convention; (2) it did so as a principal; (3) the contract was with a passenger or consignor, or with a person acting on either’s behalf; and (4) another person (“the actual carrier”) performed the carriage by virtue of authority from the “the contracting carrier.”

First, Newvac is “a person” that made a “contract of carriage governed by [the] Convention.” In this regard, the Court notes that the Convention “applies to all international carriage of persons ... by aircraft .... ” (id., art. 1(1)), and that the contract between Newvac and Globe Trotter concerned the “international carriage” of persons by aircraft (ie., carriage of passengers from Martinique-Panama-Martinique onboard West Caribbean’s MD-81 aircraft). See D.E. 99 (McCune Deck), Ex. “7” (English translation of Newvac-Globe Trotter contract); Montreal Convention, art. 1(2) (providing that “international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination ... are situated either within the territories of two States Parties or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party....”). Thus, the Court finds that the Newvac-Globe Trotter contract is a contract of carriage governed by the Montreal Convention.

Further, Newvac acted as a “principal” when it made the contract of carriage with Globe Trotter. Under international and maritime law, a “person” can act either as an agent or a principal when contracting for transportation, depending on whether it acts on its own initiative or for another. In this case, Newvac acted as a “principal” because it contracted with West Caribbean for its aircraft and crew, and then independently contracted to supply air transportation and ancillary services to Globe Trotter. See D.E. 99 (McCune Decl.). Ex. “7” (English translation of Newvac-Globe Trotter contract) at 1 (providing that “[Globe Trotter] wishes to charter seats from [Newvac]” and that “[Newvac] shall make available ... passenger transport .... ”).

In reaching this conclusion, the Court has considered Defendants’ contention that Newvac cannot be deemed a “principal” because it merely assigned the aircraft’s seating capacity to Globe Trotter. But this argument, as the Court understands it, assumes that Newvac cannot be characterized as a “principal” without the Court identifying a corresponding agent, in this case Globe Trotter. This assumption is unwarranted. The language of Article 39 is derived from the Guadalajara Convention’s definitions of “contracting carrier” and “actual carrier.” See S. Treaty Doc. No. 106-45, 1999 WL 33292734, at 10, 18, 34. rphe term “principal” under Guadalajara did not contemplate the necessity of an agency relationship; that is, that because there is a “principal” there must be an agent. The term was specifically used to clarify that those acting solely as agents could not qualify as “contracting carriers.” In any event, Defendants’ argument relies on a distortion of the facts because during the term of its contract with Globe Trotter, Newvac remained responsible for supplying the aircraft and crew, and monitoring and ensuring West Caribbean’s performance of the NewvacGlobe Trotter contract. See D.E. 99 (McCune Decl.). Ex. “7” (English translation of Newvac-Globe Trotter contract) at 1; D.E. 145 (Cimetier Depo.) at 178:16-179-12, 190:25-191:7, 212:21-214:17. These facts show that West Caribbean was acting “by virtue of authority from [New-vac]” in transporting the passengers. More importantly, they illustrate that Newvac stepped into the shoes of and assumed the role of “carrier.”

Finally, although Defendants advance an interpretation of the language, “acting on behalf of the passenger,” as requiring Globe Trotter to be acting on behalf of passengers identified prior to Newvac’s execution of the Newvac-Globe Trotter contract, the Court declines to adopt this rigid construction. Courts utilize flexible principles to interpret treaty provisions and effect the drafters’ intentions. See Floyd, 499 U.S. at 535, 111 S.Ct. 1489 (noting that treaties are construed more liberally than private agreements); accord Western Digital Corp. v. British Airways, PLC, [2001] 1 All E.R. 109 at paras. 38-40; Air France v. Saks, 470 U.S. 392, 405, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) (defining the term “accident” in the context of Article 17 of the Warsaw Convention and noting that “[t]his definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries”). Newvac and Globe Trotter clearly contemplated that Globe Trotter would procure passengers for the flights and the fully inclusive tour packages that were to be supplied by Newvac, and that Globe Trotter would act on behalf of the passengers in this regard. The parties’ expectations are evident from the Newvac-Globe Trotter contract, which required that once the passengers purchased their tour packages from Globe Trotter, Globe Trotter was obligated to forward the passengers’ information to Newvac so that Newvac could, among other things, issue the corresponding travel documents, including the individual passenger tickets. See D.E. 99 (McCune Deck), Ex. “7” (English translation of Newvac-Globe Trotter contract) at 4, para. 8; 145 (Cimetier Depo.) at 212:21-214:17. Thus, the fact that the actual passengers were not known at the inception of the Newvac-Globe Trotter contract should not, in the Court’s view, be determinative. Cf. Block v. Compagnie Nationale Air France, 386 F.2d 323, 334-36 (5th Cir.1967) (examining whether the Warsaw Convention applied in the context of an accident involving a chartered aircraft and determining, inter alia, that under the facts of the case {e.g., the charterer “was to obtain the passengers for the flight”), the charterer acted on behalf of the passengers in entering into the charter agreement). Rather, the focus should be on the fact that Newvac knowingly assumed the responsibility to supply the aircraft and crew, and to otherwise conduct itself as an air carrier, for the transportation of Globe Trotter’s customers. Therefore, the Court finds that Newvac was a “contracting carrier” within the meaning of Article 39 of the Montreal Convention.

Forum Non Conveniens

Plaintiffs, relying in large part on Hosaka v. United Airlines, Inc., 305 F.3d 989 (9th Cir.2002), contend that Newvac’s status as a “contracting carrier” confers mandatory jurisdiction on this Court pursuant to Article 33 of the Montreal Convention, thereby precluding dismissal of the actions based on forum non conveniens. See, e.g., D.E. 101 (Pis.’ Mem. in Opp’n to Mot.) at 11-27. Defendants respond that the Montreal Convention’s drafting history reflects that the signatory countries contemplated that forum non conveniens would remain a valuable procedural tool for the dismissal of litigation with tenuous relationships to the United States. See, e.g., D.E. 113 (Defs.’ Reply) at 9-16.

The Ninth Circuit Court of Appeals held in Hosaka that “Article 28(1) of the Warsaw Convention overrides the discretionary power of the federal courts to dismiss an action for forum non conveniens.” Hosaka, 305 F.3d at 993, 1004. In so holding, the Ninth Circuit rejected the decision of the Fifth Circuit Court of Appeals, the only other United States appellate court to have considered the issue, that Article 28(1) of the Warsaw Convention did not prevent a district court from considering and applying the doctrine of forum non conveniens. See In re Air Crash Disaster Near New Orleans, La., on July 9, 1982, 821 F.2d 1147 (5th Cir.1987) (en banc), vacated on other grounds sub nom. Pan American World Airways, Inc. v. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989), vacated in part and aff'd in part on remand 883 F.2d 17 (5th Cir.1989).

In reaching its conclusion, the Ninth Circuit in Hosaka found the text of Article 28 to be ambiguous, but that the treaty’s purposes, its drafting history, as well as evidence of the parties’ post-ratification understanding and the treatment of the issue in other treaties and by other courts, supported its decision. See Hosaka, 305 F.3d at 1003-04. However, the Warsaw Convention was negotiated at a time when the doctrine of forum non conveniens, as it exists today, was not even recognized by United States courts. Id. at 999, n. 13, 1002-03; Piper Aircraft Co. v. Reyno, 454 U.S. 235, 248 n. 13, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Further, the Ninth Circuit acknowledged in Hosaka that the Montreal Convention is an entirely new treaty and that Article 33, although similar to Article 28, has its own distinct drafting history shedding no light on the intention of the drafters of the Warsaw Convention respecting the availability of forum non conveniens in a case arising thereunder. See Hosaka, 305 F.3d at 999-1001. Thus, the Ninth Circuit made clear in Hosaka that it was not opining on the availability of forum non conveniens dismissals under the then unratified Montreal Convention: “We offer no opinion as to whether the text and drafting history of the Montreal Convention demonstrate whether forum non conveniens would be available in an action brought under that as-yet-unratified treaty.” Id. at 1001 n. 17.

For these reasons, Hosaka has limited precedential value on the ultimate issue of the availability of forum non conveniens under the Montreal Convention. Accordingly, this Court is left with the duty to resolve — apparently as a matter of first impression' — whether the doctrine of forum non conveniens can be considered in a case arising under the Montreal Convention. To do so, the Court again resorts to the flexible principles applicable to treaty interpretation, examining first the text of the treaty and the historical context in which it was drafted, the purpose of the treaty, its drafting history, and the post-ratification understanding of the Convention States. See Floyd, 499 U.S. at 534-35, 111 S.Ct. 1489; Tseng, 525 U.S. at 167, 119 S.Ct. 662. The Court also considers the United States’ Statement of Interest filed in this action; “[although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.” Avagliano, 457 U.S. at 184-85, 102 S.Ct. 2374; accord Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 2685, 165 L.Ed.2d 557 (2006). In the final analysis, however, it is the Court’s responsibility “to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties.” Tseng, 525 U.S. at 167, 119 S.Ct. 662 (quoting Saks, 470 U.S. at 399, 105 S.Ct. 1338).

a. Text of the Treaty

Article 33 (“Jurisdiction”) provides that:

1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.

2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.

3. For the purposes of paragraph 2,

(a) “commercial agreement” means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air;

(b) “principal and permanent residence” means the one fixed and permanent abode of the passenger at the time of the accident. The nationality of the passenger shall not be the determining factor in this regard.

4.Questions of procedure shall be governed by the law of the court seised of the case.

Montreal Convention, art. 33.

Like Article 28 of the Warsaw Convention, the text is silent respecting the forum non conveniens doctrine, but it expressly provides that questions, of procedure shall be governed by the law of the forum. However, unlike the Hosaka Court, this court finds the above-quoted language to be unambiguous and dispositive: since the doctrine of forum non conveniens was firmly entrenched in the procedural law of the United States by the time the Montreal Convention was drafted, the text by implication clearly permits the application of the doctrine in domestic litigation.

This construction, moreover, comports with the rules commonly used by courts to construe treaty provisions. It is consistent with the international law principle endorsed by the Supreme Court of the United States, that “absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State.” Breard v. Greene, 523 U.S. 371, 375, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per curiam); accord Sanchez-Llamas, 126 S.Ct. at 2682-83; Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988); Société Nationale Industrielle Aerospatiale v. U.S. Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 539, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987); see also Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 262, 104 S.Ct. 1776, 80 L.Ed.2d 273 (1984) (Stevens, J., dissenting) (noting that “[g]iven the gulfs of language, culture, and values that separate nations, it is essential in international agreements for the parties to make explicit their common ground on the most rudimentary of matters”). It harmonizes and gives effect to every word of Article 33 by construing the language “brought, at the option of the plaintiff’ to mean the place where the plaintiff may initiate the action, subject to the application of the procedural doctrine of forum non conveniens as provided for in subsection (2). It also avoids the need to graft language onto subsection (2) so that it would read: “Questions of procedure, other than forum non conveniens, shall be governed by the law of the court seised of the case” — a result the law plainly does not permit.

Notwithstanding the conclusion that the text unambiguously permits application of the forum non conveniens doctrine in Montreal Convention cases, it remains the Court’s responsibility to interpret Article 33 consistently with the shared expectations of the contracting parties. Tseng, 525 U.S. at 167, 119 S.Ct. 662. Accordingly, the Court considers below whether the historical context in which the Convention was drafted, the purpose, the drafting history, the post-ratification understanding of the contracting parties, if any, and the meaning accorded to Article 33 by the agencies responsible for its negotiation and enforcement, support the conclusion that forum non conveniens may be employed in Montreal Convention cases pursuant to Article 33(4). Id.; Floyd, 499 U.S. at 534-35, 111 S.Ct. 1489; Sanchez-Llamas, 126 S.Ct. at 2685.

b. Historical Context

In reaching the conclusion that the plain language of Article 33 permits the application of forum non conveniens in Montreal Convention cases, the undersigned acknowledges that subsection (1) and subsection (4) of Article 33 are nearly identical to Article 28(1),(2) of the Warsaw Convention, and that the Ninth Circuit Court of Appeals in Hosaka, as well as Lord Phillips in Milor S.R.L. v. British Airways, PLC, [1996] Q.B. 702 (Eng.C.A.), concluded that the sentence “[questions of procedure shall be governed by the law of the court to which the case is submitted” in Article 28(2) did not authorize the application of forum non conveniens in Warsaw Convention cases. However, the authors of those opinions were seeking to ascertain the shared expectations of the signatories to a treaty that was drafted in 1925 and 1929, at a time when the forum non conveniens doctrine was rarely utilized, its contours were undeveloped and its “procedural” character was unsettled. See Hosaka, 305 F.3d at 999, n. 13, 1002-03; accord Milor S.R.L. v. British Airways, PLC, [1996] Q.B. 702 (Eng.C.A.); Saks, 470 U.S. at 401, 105 S.Ct. 1338. Therefore, there is little, if any evidence, reflecting that the drafters of the Warsaw Convention then understood that the inclusion of the language “[questions of procedure shall be governed by the law of the court seised of the case” encompassed forum non conveniens.

The same conclusion cannot be reached with respect to the Montreal Convention; federal courts in the United States faced with cases arising out of international transactions and mass torts, among others, have utilized the doctrine routinely since 1947 to assess whether litigation should occur in a more convenient foreign forum, including in Warsaw Convention cases. The historical context of the Montreal Convention thus reflects that, by the time it was drafted, the doctrine was widely understood to be a procedural device frequently employed in United States courts. See generally 14D C. Wright, A. Miller & E. Copper, Federal Practice and Procedure § 3828 (3d ed. 2007); American Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (noting that forum non conveniens is a doctrine of procedure rather than substance). Moreover, Hosaka had not been decided in 1999, when the final draft of the Montreal Convention was completed. At that time, the only United States decision that had addressed directly the availability of forum non conveniens in Warsaw Convention cases in the United States was the Fifth Circuit’s decision in In re ... New Orleans, and it had held that forum non conveniens was available, stating:

The delegates, however, recognized that the [Warsaw] Convention’s provisions would have to be applied and adopted to a variety of legal systems, so they provided in Article 28(2) that “[questions of procedure shall be governed by the law of the court to which the case is submitted.”

Plaintiffs insist that article 28(l)’s language “at the option of the plaintiff’ grants them the absolute and inalterable right to choose the national forum in which them claims will be litigated. We cannot agree.... The party initiating the action enjoys the perogative [sic] of choosing between these possible national forums but that selection is not inviolate. That choice is then subject to the procedural requirements and devices that are part of that forum’s internal laws.... We simply do not believe that the United States through adherence to the Convention has meant to forfeit such a valuable procedural tool as the doctrine of forum non conveniens.

In re Air Crash Disaster Near New Orleans, La., on July 9, 1982, 821 F.2d 1147, 1161-62 (5th Cir.1987) (internal citations and footnotes omitted).

Viewed in this context, the undersigned cannot agree with Plaintiffs’ argument that interpreting Article 33 to allow for application of forum non conveniens would be inconsistent with Article 57 of the Montreal Convention prohibiting “reservations.” The difficulty with this argument is that it presupposes that the drafters did not understand that forum non conveniens is part of the procedural law of the United States and that they did not anticipate that forum non conveniens would continue to be employed in United States courts. Neither the text of Article 33 nor its historical context support this pre-supposition for the reasons explained above, and therefore no “reservation” is necessary for a United States court to be able to consider the “procedural question” of whether an action under the Montreal convention should be dismissed pursuant to forum non conveniens.

The Court also is not persuaded by Plaintiffs’ argument that the drafters’ failure to address the location of the fora to which a case could be “transferred” indicates that they did not intend to allow the application of forum non conveniens in United States courts and elsewhere the doctrine is employed. While the drafters may have aspired to achieve uniformity and predictability in the implementation of the Montreal Convention’s liability regime, the historical record reflects that the drafters were tasked with harmonizing the conflicting interests of numerous countries with different legal systems, including widely disparate procedural rules. The Montreal Convention, like most treaties, was the product of consensus and the absence of a provision does not necessarily imply anything more than mere compromise. See, e.g., Franklin Mint Corporation, 466 U.S. at 262, 104 S.Ct. 1776 (Stevens, J., dissenting) (noting that “[t]he great object of an international agreement is to define the common ground between sovereign nations. Given the gulfs of language, culture, and values that separate nations, it is essential in international agreements for the parties to make explicit their common ground on the most rudimentary of matters”).

c. Purpose of the Treaty

Plaintiffs also submit that Hosaka’s reasoning respecting the primary purposes of the Warsaw Convention is equally applicable to cases arising under the Montreal Convention. See D.E. 101 (Pls.’ Mem. in Opp’n to Mot.) at 19. In Hosaka, the Court found that application of the forum non conveniens doctrine would undermine the Warsaw Convention’s dual goals of (i) uniformity, and (ii) the balance that the drafters sought to strike between the interests of air carriers and passengers. See Hosaka, 305 F.3d at 996-97. In reaching this conclusion, the Hosaka Court relied on the Milor Court’s reasoning, citing with approval the statement that Article 28 of the Warsaw Convention is “a self-contained code” harmonizing different national views on jurisdiction. Id. at 997.

Plaintiffs argument fails to take account of the fact that the stated purpose of the Montreal Convention was to “modernize and consolidate the Warsaw Convention and related instruments,” and to “ensur[e] protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution.” Montreal Convention, Preamble. As such, it was intended to replace the system of liability contained in the Warsaw Convention:

The Montreal Convention is the product of an effort by the International Civil Aviation Organization, a specialized agency of the United Nations, to reform the Warsaw Convention so as to ‘harmonize the hodgepodge of supplementary amendments and intercarrier agreements’ of which the Warsaw Convention system of liability consists.... The Montreal Convention is not an amendment to the Warsaw Convention. Rather, the Montreal Convention is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention....

Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 n. 4 (2d Cir.2004) (internal citations omitted). Thus, Hosaka’s reliance on the purposes of the Warsaw Convention to conclude that forum non conveniens dismissals were unavailable in United States courts under the earlier treaty, is not entirely persuasive to this Court which is tasked with deciding the availability of this procedural tool under the new treaty.

Indeed, at least one of the purposes of the Montreal Convention, modernization, actually supports the viability of forum non conveniens dismissals in cases arising thereunder. As already noted, at the time the Montreal Convention was drafted, the only case in the United States directly addressing the availability of forum non conveniens in cases brought under the Warsaw Convention had found the doctrine to be applicable and other courts had applied the doctrine in Warsaw Convention cases without engaging in treaty interpretation. See supra note 18. Also, at least one other foreign court had employed the doctrine in a Warsaw Convention case. See Brinkerhoff Maritime Drilling Corp. v. P.T. Airfast Servs. Indonesia [1992] SGCA 45 (available at http://app. supremeeourt.gov.sg/default.aspx?pgID= 1127 (visited Aug. 28, 2007)). Thus, utilization of the doctrine comported with modern practice at the time the Montreal Convention was negotiated and is consistent with the Montreal Convention’s stated goal of “modernization.”

Nonetheless, the Court accepts Plaintiffs’ assertion that the drafters of the Montreal Convention, like the drafters of the Warsaw Convention, aspired to uniformity and predictability in the implementation of its liability scheme. These goals, however, do not necessarily suggest that the drafters of the Montreal Convention viewed forum non conveniens as repugnant or incompatible with its jurisdictional provisions. Although the delegates clearly knew that United States courts were applying forum non conveniens in Warsaw Convention cases, not a single proposal appears in the Minutes of the Conference or related documents precluding the application of forum non conveniens in Montreal Convention cases. Instead, the drafting history, explained in greater detail below, reflects that the delegates considered various proposals which would have expressly sanctioned the use of forum non conveniens in cases brought in the fifth jurisdiction or clarified its status as a procedural question under Article 33(4); however, no consensus could be reached due mainly to the fear that codification would be interpreted as requiring countries unfamiliar with the doctrine to employ it. The absence of language articulating forum non conveniens principles in the final document, thus, suggests that the drafters intended to maintain the status quo: that United States courts, as well as the courts of other States recognizing the doctrine, would continue to apply forum non conveniens in Montreal Convention and other cases, while others would not.

Moreover, Hosaka, in buying into the Milor Court’s reasoning that the Warsaw Convention was intended to include a “self contained jurisdictional code” with which forum non conveniens conflicted, appears to have overlooked that in the United States the doctrine of forum non conveniens has co-existed with the concept of jurisdiction for many decades. In Smith, the Second Circuit Court of Appeals explained pelucidly the relationship between jurisdiction and venue in the context of a Warsaw Convention case. See supra note 19 (citing Smith, 452 F.2d 798). Forum non conveniens is not a jurisdictional question, but rather a supervening question of proper venue. See Am. Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994). Therefore, whether under Warsaw or Montreal, the first issue in any case should be whether there is treaty jurisdiction, meaning whether the case has been brought in one of the fora described by the applicable treaty, the second issue should be whether there is subject matter jurisdiction under domestic law, and the third issue should be whether venue is proper and appropriate. See supra note 19.

The record also does not reflect that drafters of the Montreal Convention, assuming they understood forum non conveniens to be a jurisdictional question, accorded the objective of formulating a “self-contained jurisdictional code” the primacy ascribed in the Hosaka and Milor opinions to the drafters of the Warsaw Convention. Like the Warsaw Convention, the predominant objectives of the Montreal Convention were the creation of a new uniform system of liability governing the international transportation of passengers and cargo, and the balancing of the interests of the air carriers and passengers. However, when the Warsaw Convention was drafted the doctrine of forum non conveniens was undeveloped and rarely invoked. By 1999, its contours had been defined and it had been widely employed in United States courts in international cases, although never to the detriment of a Warsaw Convention plaintiff in a reported case. In other words, the doctrine did not pose a significant threat to uniform implementation of the Montreal Convention’s liability regime. Hence, there were no proposals at the Conference to exclude it as a procedural device.

In any event, the Court simply does not perceive how application of the doctrine, as a practical matter, undermines uniform implementation of the Montreal Convention or the balance it seeks to strike between the interests of the passengers and the airlines. Forum non conveniens, as it has developed in the United States, requires, among other factors, that the movant, in order to upset the plaintiffs choice of forum, demonstrate the existence of an “adequate alternative forum” that has a paramount private and public interest in the case. See Reyno, 454 U.S. at 255 n. 22, 257-261, 102 S.Ct. 252; 14D C. Wright, A. Miller & E. Copper, Federal Practice and Procedure §§ 3828.3, 3828.4 (3d ed. 2007). Since treaty jurisdiction can be established only in one of the fora described in Article 33 (see, e.g., Smith, 452 F.2d at 802-03), it is difficult to conceive of a dismissal based on forum non conveniens in a Montreal Convention case in a United States court unless the alternative forum is (i) authorized to hear the case pursuant to Article 33(1) or (2), and (ii) demonstrably the more appropriate venue.

Further, a decision to dismiss in favor of one of the fora designated by Article 33 would not appear to upset the balance the drafters of the Montreal Convention intended to strike between the interests of the passengers and the airlines. The requirements to invoke the fifth jurisdiction show that the drafters concluded that plaintiffs should have the initial choice of forum, but that the choice should be constrained to ensure litigation in a location with a significant connection to the defendant. The doctrine of forum non conveniens, as established in the United States, is consistent with that balance by requiring that a court defer to plaintiffs choice of forum in assessing whether one of the other fora would be more appropriate in a ease arising under the Convention. See Reyno, 454 U.S. at 255, 102 S.Ct. 252; but see id. at n. 23 (noting that although not dispositive, citizens or residents deserve “somewhat more deference” than foreign plaintiffs); 14D C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3828.2 (3d ed. 2007).

Finally, forum non conveniens encourages uniform implementation of the liability system and consistency of results because it facilitates the consolidation of multiple lawsuits arising out of a single air disaster in a single forum state.

d. Drafting History

Plaintiffs argue that the drafting history of Article 33 is inconclusive with respect to the applicability of forum non conveniens in Montreal Convention cases: “The only clear and verifiable truth is that ultimately, the Montreal Convention, like its predecessor says nothing about the FNC doctrine.” D.E. 101 (Pis.’ Mem. in Opp’n to Mot.) at 24. The undersigned disagrees. While it is certainly true that the Montreal Convention does not expressly refer to the doctrine of forum non conveniens, it was a subject of extensive discussions in connection with the inclusion and drafting of the fifth jurisdiction that in the final instrument appears in Article 33(2). Those discussions show that no consensus could be reached for the inclusion of express language codifying the doctrine, but they also show no inclination on the part of the delegates to restrict existing practices among the signatory States. Importantly, the Minutes of the Conference and related documents contain not a single proposal that would prohibit the courts of Convention States from employing forum non conveniens.

The discussion of forum non conveniens began in the Conference meetings in response to the proposal, supported by the United States, that the convention include a fifth jurisdiction allowing passengers or their heirs to sue in the state where the passenger lived. In supporting the proposal, the United States had anticipated that the addition of the fifth jurisdiction would aid in addressing the problem of “forum shopping” in the United States: “U.S. courts are far more likely to dismiss lawsuits brought by non-U.S. residents on the grounds of forum non conveniens if a convenient homeland court is available to the plaintiff because of the fifth jurisdiction.” D.E. 151 (Conventional Filing of the Conference Minutes and Documents (hereinafter “Minutes” or “Documents”)) at 108 (DCW Doc. No. 12 (“forum shopping” aspect of paper presented by the U.S. titled “Article 27-Fifth Jurisdiction”)). The United States also had provided a position paper to the Conference for its consideration in the adoption of the fifth jurisdiction explaining the operation of the doctrine of forum non conveniens in United States courts. Id. at 151-54 (DCW Doc. No. 27 (paper presented by U.S. titled “Two Cases Reflecting United States Law on Forum Non Conveniens”)). In the paper, the United States had explained “[t]he primary purpose of forum non conveniens is to allow a court to resist impositions upon its jurisdiction and to protect the interests of parties to the litigation by adjudicating the claim in the most suitable and convenient forum. A forum is suitable and convenient when the entire case and all the parties come within the jurisdiction of that forum.” Id. at 154.

The Minutes of the Conference meetings from May 17, 1999, reflect that the French delegate opposed the creation of a fifth jurisdiction because he was concerned that its inclusion would both encourage forum shopping in high compensation states and make it easier for courts applying fórum non conveniens to dismiss foreign plaintiffs’ claims in favor of courts located in poorer countries. See Minutes at 108-04, paras. 44-45. The United States delegate responded that he disagreed that inclusion of the fifth jurisdiction would increase forum shopping since he anticipated that the increase in the number of cases brought in the United States due to the fifth jurisdiction [i.e., by U.S. residents] would be offset by the number of cases that would be dismissed on forum non conveniens grounds due to the availability of a “home court” convenient forum for a “forum shopping” plaintiff. Id. at 108, para. 62. He further suggested that the French delegate’s concern that foreign plaintiffs would be consigned to litigation in their home countries through the application of forum non conveniens was not well-founded because, under the proposal, the fifth jurisdiction could not serve as an alternative forum unless it was both the principal and permanent residence of the passenger and a location where the carrier had a significant commercial presence. Id. at 108-09, paras. 63-64.

On May 19, 1999, the discussions respecting the fifth jurisdiction and forum non conveniens continued. The Minutes reflect, among other comments on the doctrine, that the Swedish delegate indicated that he would welcome the inclusion of any language that would authorize States to continue to apply forum non conveniens but would oppose any effort to impose the doctrine on others. The Minutes show that he commented as follows:

With reference to draft Article 27 [ie., Article 33 in the final instrument], the Delegate of Sweden recalled that reference had been made to the possibility of provisions on forum non conveniens and his Delegation welcomed any such wording that would enable States presently applying that principle to continue doing so. However, he advised against any attempt to make that a standard provision for all States. It had been proposed, through lengthy discussions in other fora, that it should be a standard requirement applicable to all States, although no conclusions had been reached at this point in time. He stated that forum non conveniens was unknown to most civil law countries and a number of States had firm instructions on such a position.

Id. at 144, para. 18.

The fifth jurisdiction and forum non conveniens were also considered later that day in the “Friends of the Chairman” Group. In that meeting, the Chairman offered two ideas for further consideration in addressing fears that there would be a tendency for plaintiffs to favor a fifth jurisdiction “home base” as being more favorable to them “even in circumstances in which the critical connecting links between the passenger, the accident and the injury might be such that that forum could be regarded as an inconvenient forum .... ” Id. at 148-49, paras. 6-7. The first idea concerned the possibility of codifying forum non conveniens within Article 27 so that a court seized of a case “would not be able to exercise its jurisdiction in circumstances in which it would be inconvenient or would create formidable difficulties, having regard to the connecting links of the case.” Id. The second idea was to consider the first four bases of jurisdiction as primary, and if a plaintiff resorted to the fifth jurisdiction, he would have to show that it would be highly inconvenient or disadvantageous for him to resort to the existing four jurisdictions. Id.

In the context of these discussions, the Australian delegate proposed that Article 27 might be made subject to a provision requiring a court to be satisfied that it would be “manifestly unfair to permit the matter to be heard and decided in that jurisdiction and that there existed another jurisdiction in which the matter might properly, and with a view to the interests of all the parties, more fairly and conveniently heard and decided, in which case the Court might dismiss the matter.” Id. at 158, para. 17. The Chairman understood the proposal to be applicable to only the fifth jurisdiction: “The substance of the proposal was that a resort to the fifth jurisdiction would place a responsibility on the plaintiff to satisfy the Court on two counts: that there was not another jurisdiction in which the matter might properly, and with a view to the interests of all the parties, more fairly and conveniently be heard and decided; and that it would be manifestly unfair in all the circumstances for the matter to be heard and decided in that jurisdiction.” Id., para. 18. The proposal as formulated by the Chairman was tentatively endorsed by the delegates from Saudi Arabia and Canada, with the Minutes reflecting that the Canadian delegate observed that “while the doctrine of forum non conveniens might have elaborated originally in common law jurisdictions, it was now spreading throughout the world and was taken into account in modern Civil Codes, such as the new Quebec Civil Code” and that the “doctrine was entirely compatible with civil law systems ....” Id. at 158-59, para. 19.

The United States delegate underscored in his response that his delegation was unalterably opposed to any provision that would create a higher hurdle for the application of the fifth jurisdiction than would be applicable to the other four jurisdictions, as would be the case if only the fifth jurisdiction was made subject to forum non conveniens analysis. Id. at 159, para. 21. The United States delegate further made clear that, regardless of the action ultimately taken by the Conference on the issue of forum non conveniens, the United States would continue to apply the doctrine in any and all Convention cases in its courts. Id. The Minutes recount his comments as follows:

Indicating that he [ie., the U.S. delegate] was somewhat puzzled by the direction which the debate had taken, he noted that DCW Doc No. 27 presented by his Delegation described the doctrine of forum non conveniens as it was currently applied in the Courts of the United States to the existing four jurisdictions and as it would be applied to a fifth, sixth, seventh or eighth jurisdiction, if such jurisdictions were created. The Delegate of the United States noted that the doctrine of forum non conveniens would be applied to all five jurisdictions in his country whether the Group prescribed that or not. It seemed to him that that should provide substantial comfort to those concerned about judgments in his jurisdiction. The Delegate of the United States was concerned not only about not creating a higher hurdle for the application of the fifth jurisdiction than existed for the other four jurisdictions but also about the ratifiability of the new Convention. As has already been noted, there were jurisdictions which did not apply, understand or perhaps even desire forum non conveniens. He was concerned that, by proposing to impose such an alien concept on such jurisdictions, it would make it more difficult for them to accept the result. The Delegate of the United States was also concerned that, in attempting to codify on paper a doctrine which already existed in his country, the Group would do it in a way which would alter the jurisprudence which was already applicable in the United States and that such an alteration would be found to be obnoxious to the process which the Group had to follow.

The Delegate of the United States thus suggested that, to provide some measure of comfort to those concerned about the level of judgments in his jurisdiction and perhaps to others where forum non conveniens or similar doctrines which perhaps did not bear that precise name were applicable and to avoid any concern that by having the fifth jurisdiction, some Court would conclude that the forum non conveniens doctrine should not be applied, paragraph 4 of Article 27 (“Questions of procedure shall be governed by the law of the Court seised of the case.”) should be amended by adding the phrase “including the doctrine of forum non conveniens or other similar doctrines”. If any Delegate had such a similar doctrine that had a name, it could be included in that provision. The Delegate of the United States hoped that with his proposed amendment a certain degree of comfort might be gained without, as in the adage, throwing away the baby with the bathwater.

Id,., paras. 21-22.

Consistent with his remarks, it was also observed by other delegates that the forum non conveniens doctrine was relatively unknown in some European countries {id., para. 20 (Swiss delegate’s comment in this respect)), would be difficult to harmonize within some countries’ legal systems {id. at 160, para. 26 (Chilean delegate’s comments respecting Chile and several other unidentified Latin American countries)), and in fact, in an apparent reference to Milor, that the doctrine was inapplicable in England in cases arising under the Warsaw Convention. Id. at 161-62, paras. 31, 33.

In the course of these discussions the Conference Chairman questioned whether in the interest of achieving predictability and uniformity, it might be necessary to forge a common understanding of forum non conveniens. Id. at 159-60, para. 23; 162, paras. 32, 34; also 171, para. 15; 181, para. 28. The Minutes present the following account:

To the point raised by the Delegate of the United States that the imposition of that alien concept — a term which he found strange — might pose jurisdictional problems, the Chairman emphasized that the Group was involved in the process of seeking uniformity.... Recognizing, as he did, that in some jurisdictions the concept of forum non conveniens might not exist in a particular form, as well as that many of the elements of the Convention relating to the burden of proof, what was required to be proved and the limits of liability also did not exist in the domestic legislation of many countries, the Chairman indicated that it would be necessary to make adjustments to such legislation in order to achieve uniformity. He therefore appealed to the Group to search for solutions which were commonly acceptable, even in the knowledge that they might entail adjustments to domestic jurisdictions.

Id. at 159-60, para. 23. The Chairman further noted that “the Group would need to look most carefully as to whether or not in all the circumstances it would be achieving its purposes if it did not expressly provide for [forum non conveniens ] in the Convention. It would seem that if forum non conveniens was to play a role, that would have to be clearly indicated, having regard to the jurisprudence which might or might not exist in some countries.” Id. at 161-62, paras. 31-32.

Next, the Minutes reflect that the delegate from the United Kingdom, apparently referring to the Milor decision, indicated that “[i]t did not seem to him that the Group would really be modernizing and consolidating the Warsaw Convention if the Group were to make it necessary for the plaintiff to fight for his existing right to bring his action at the place of his choice and t