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“Win in State Court, Lose in Federal Court.” The Lament of the Aviation Plaintiff Litigator.

February 2, 2022

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By David Cluxton

“Win in state court, lose in federal court.” The lament of the aviation plaintiff litigator whilst crying—not always metaphorically speaking—into their beer at the end of another frustrating day battling before the federal bar. It is no secret that U.S. state courts are generally regarded as being pro-plaintiff, while the U.S. federal courts are seen as pro-defendant. This is a reality that makes itself felt in any number of ways and can, not only be of great significance to the litigation of a given case, but often also outcome determinative. This is especially true in the litigation of aviation passenger claims, that are, by the nature of air transport, more likely to involve a foreign element, and thereby expose the case to issues of competing jurisdiction and conflict of laws.

For instance, if we take a hypothetical crash occurring in Colombia of an Irish-registered aircraft, operated by a U.S. airline, and involving death or personal injury to a passenger of French nationality, these circumstances could offer the plaintiff a choice of several forums in which to pursue a claim. In such cases, it almost goes without saying that the plaintiff will elect to sue in a forum within the United States; it being the forum of choice for the litigation of aviation passenger claims. The United States has long been the center of gravity for such litigation. Many factors make trial in the United States desirable, such as the availability of contingency fees, wide-reaching rules of pre-trial discovery, highly experienced law firms specialized in aviation litigation. But, above all, it is usually the quantum of damages likely to be awarded by in a U.S. forum that is the decisive factor in choosing to sue in the United States.

Where some element of an aviation passenger case touches the United States, the plaintiff lawyer will seek to bring that case in a U.S. court. But where that case involves an international component that also provides for the possibility of suing in an alternative foreign forum, then the plaintiff lawyer seeking to sue in the United States must wrestle with the problem of a common law doctrine called forum non conveniens. Simply put, the doctrine of forum non conveniens (FNC for short), permits the chosen forum (i.e., the court to which the plaintiff has brought their claim) to decline jurisdiction over the case, at the behest of the defendant, where an alternative forum is deemed to be more appropriate or convenient in the circumstances. For example, in our hypothetical example above, the defendant may argue that Colombia is the more appropriate forum for resolving the claim, because, as the location of the accident, a Colombian forum would have better access to evidence, and/or that there is a greater public interest in the litigation in Colombia than in the United States, and/or that there is existing litigation of other actions occurring there pertaining to the same accident; the possible reasons are legion.

The specter of FNC dismissal of an international aviation passenger claim is one such area where the difference in treatment between U.S. state courts and U.S. federal courts is most conspicuous and influential. This is because there is a much greater likelihood of FNC dismissal from a U.S. federal court than from a U.S. state court. The more conservative leaning and pro-defendant tendencies of U.S. federal courts mean that they are more likely to side with the defendant who is seeking dismissal on grounds of FNC. For this reason, the plaintiff aviation litigator will attempt to avoid federal court entirely by pleading their case exclusively on state law. However, there are a number of pitfalls to be avoided if one wants to keep a case in state court, e.g., federal question matter.

When it comes to claims to which the Warsaw Convention 1929 or the Montreal Convention 1999 apply, keeping a case in state court has proven a Sisyphean task. These conventions (these are multilateral treaties) govern the liability of the carrier for international carriage by air of passengers, baggage, and cargo. They contain uniform rules pertaining to matters of such as liability, jurisdiction, defenses, time limitations, and so on. Thus, where a passenger is killed or injured in an aviation accident to which one of these conventions applies, an action for damages (e.g., a wrongful death action) must be brought against the carrier subject to its provisions.

Where the Warsaw Convention 1929 or Montreal Convention 1999 apply, if a plaintiff sues in state court, pleading a state-law cause of action for wrongful death, the immediate response of the defendant carrier will be to seek to have the action removed to federal court. When the plaintiff then seeks remand back to state court, the defendant carrier will argue that the applicable convention provides the cause of action, and, since it arises under the law of the United States, the federal courts have jurisdiction. What is more, the defendant will argue that the cause of action under the applicable convention is exclusive and completely preempts of any causes of action under state law. Thus, even where the plaintiff’s well-pleaded complaint reveals only a state-law cause of action, that cause of action is effectively converted into a federal cause of action. Unfortunately, many federal courts have proved indulgent of these arguments by defendant carriers and have endorsed the doctrine of the exclusivity of the cause of action of the Warsaw and Montreal Conventions.

Is this conversion of a state-law action into a federal one the result of juristic hocus pocus, or some arcane legal alchemy? Whatever its true nature, the practical result is that aviation passenger cases that are brought first in state courts are routinely removed to a federal forum. Once there, the likelihood is that the defendant will seek dismissal on grounds of FNC, arguing that a foreign forum is the more appropriate or convenient forum for resolution of the claim. Of course, the reality is that the defendant’s motivation is seldom, if ever, appropriateness or convenience; instead, it is the desire to avoid a U.S. forum in preference for a foreign forum where the ultimate quantum of damages likely to be awarded will be much less. In most cases, once the litigation of the claim in a U.S. forum has been averted, the parties will elect to settle out of court.

Is it fair to plaintiffs to deprive them of their choice of forum in this way? The answer to this question is largely dependent upon establishing whether or not the cause of action of the Warsaw and Montreal Conventions is indeed exclusive. Was it the intention of the drafters of those treaties that they should be a one-stop-shop for the passenger claims, excluding reference to national law causes of action; or, were the drafters satisfied with merely laying down the conditions upon which national law causes of action could be exercised? The titles of those Conventions both refer to the “unification of certain rules”, i.e., not all rules. This would suggest that the drafters intended the latter, not the former. In which case, the drafters would not have objected to a plaintiff basing their claim on state law and pursuing it to a conclusion in a state court. If, as I argue, the doctrine of exclusivity of cause of action is doctrinally unsound and is in fact the result of decades of mistaken interpretations, overlooked distinctions, and exaggerated conceptions, we must seek out the true motivation for its creation.

In the specific context of aviation passenger litigation, why should the U.S. courts seek to deprive the plaintiff of their choice of forum? As is demonstrated in my book, the reason lies in the United States’ refusal to ratify an amending protocol to the Warsaw Convention 1929, i.e., the Hague Protocol 1955, and the resulting difficulties that this produced and that, in turn, gave rise to the latent, compelling policy justifications for indulging the concept of exclusivity of cause of action. These policy justifications are, however, no longer salient. This is especially so in the context of the Montreal Convention 1999, that is, after all, a modernization and consolidation of the Warsaw Convention System, and, furthermore, encapsulates a new balance of interests favoring the plaintiff passenger (qua consumer) vis-à-vis the defendant carrier. In spite of this, the unsound doctrine of exclusivity of cause of action persists, continuing to prejudice the interests of plaintiff passengers in favor of the interests of air carriers, their insurers, and the wider air transport industry. Ensuring the equitable and speedy resolution of international aviation passenger claims is one of the purported purposes of the Montreal Convention 1999, and the desire to strike a new, fairer deal for the plaintiff passenger was voiced by the drafters as a key goal during its gestation. However, the U.S. federal courts continued endorsement of the doctrine of exclusivity of cause of action is undermining those goals. It is my hope that my book might provide ammunition to those who seek to overturn the current consensus and banish the doctrine, or at least prompt legislators to remedy the situation.


Aviation Law Cause of Action Exclusivity in the Warsaw and Montreal Conventions by David Cluxton is out next month. The book is available for pre-order on our website.

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Levelling up, Fairness, and Efficiency

October 27, 2021

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By Roger A. McCain

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The Dawn of the Information Age

October 25, 2021

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‘It’s the beginning of the new age, it’s the beginning of the new age, it’s … , etc’. So goes the refrain of the Velvet Underground anthem that used to so intoxicate me as a teenager. Now, I would substitute ‘It’s the beginning of the information age, it’s …, etc’. This, the information age, or, in Manuel Castells’s language, the global network society, is the context for the contributions I have collated in the Research Handbook on Information Policy. (The photo on the dust jacket is meant to represent the dawn of a new age: hopefully it succeeds, or that it is at any rate a pretty cover for the library shelf or coffee table.)

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Nordic Perspectives on Nature-based Tourism

October 4, 2021

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Authors Peter Fredman and Jan Vidar Haukeland discuss a nature-based tourism in a Nordic context
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Handbook for Democracy and Development Book Launch

August 2, 2021

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By Laura Sulin, Research Assistant, Centre for Trust, Peace and Social Relations, Coventry University

Professor Gordon Crawford (Centre for Trust, Peace and Social Relations) and Professor Abdul-Gafaru Abdulai (University of Ghana Business School) marked the publication of their edited Edward Elgar Handbook for Democracy and Development in a recent book launch event organised by CTPSR. The Handbook is the first in the new series by Edward Elgar on Development.

The Handbook for Democracy and Development explores and contributes to the controversial updates on the relationship between democracy and development, providing clarification on the interlinkages between political regime type and socio-economic development. The Handbook focuses on analysing the relationship between political regime types, and broader development indicators, the different chapters covering topics such as economic growth, inequality, poverty and human development, conflict, human rights and environmental sustainability. The contributors of the book examine these issues from multidisciplinary perspectives across Asia, Africa, Europe, Latin America and the Middle East.

The launch event kicked off by the editors highlighting the important contribution the Handbook brings to the existing debate. As they argued, the relationship between socio-economic development and political democracy is one of the most researched and debated topics in social sciences however, many of these debates remain unresolved. The Handbook aims to bring additional clarity to these complex debates.

As the editors presented during the launch event, three current issues make the book and its contribution even more pertinent. Firstly, the sharp rise in global inequalities that has become a major concern. Democratic electoral competition has been increasingly responsible for rising socio-economic inequalities. Secondly is the current disillusionment with democracy, which is associated with the rise of right-wing authoritarian populism. And lastly, is the issue of state capacity. Research has increasingly highlighted the significance of state capacity for development. Emerging literature on “political settlements” is considering how what matters more in shaping a country’s development is not just whether a country is democratic or autocratic but whether those in power feel secure enough to pursue long-term policies in the national interest.

The launch event heard from the contributors of the Handbook, by presenting short videos on four themes around definitions and interlinkages, outcomes, impact on inequalities and regional and country perspectives. The authors reflected on questions such as how the two key concepts of democracy and development can be defined, has democracy tempered or intensified various forms of inequalities and what are the key issues concerning the relationship between democracy and development in specific regional contexts.  These videos can be watched in full on CTPSR’s Youtube channel.


Research Handbook on Democracy and Development, edited by Gordon Crawford, Coventry University, UK and Abdul-Gafaru Abdulai, University of Ghana Business School, Ghana is out now

Read the introduction and other free chapters on Elgaronline

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