D.C. Circuit Affirms Distirct Court Decision to Dismiss Malaysia Airlines Flight MH370 Claims on Forum Non-Conveniens Grounds

The U.S. Court of Appeals, District of Columbia Circuit recently affirmed a District Court’s decision to dismiss claims arising from the mysterious disappearance of Malaysia Airlines flight MH 370 on forum non conveniens grounds.[1]  The flight disappeared without any known cause over the Southern Indian Ocean on March 8, 2014.  An extensive search of over four years yielded no known cause of the tragedy.  All onboard are presumed dead.

Representatives of the passengers filed lawsuits in the United States asserting claims against Malaysia Airlines Systems Berhad (“MAS”)[2], the name of Malaysia’s national airline at the time of the flight, the airline’s insurers and Boeing, the aircraft manufacturer.  The District Court dismissed all claims on forum non conveniens grounds, and the Court of Appeals affirmed, finding that the District Court did not abuse its discretion. 

The Court of Appeals began its discussion by setting forth the forum non conveniens standard, namely, that the defendant must show that there is an adequate alternative forum to hear the dispute, and, if so, the balance of the private and public interest factors strongly favors dismissal to that foreign forum.  The Court first held that the District Court did not abuse its discretion in holding that Malaysia is an adequate alternative forum.  The plaintiffs had argued that the Malaysian government, by transferring MAS’s assets but not liabilities to MAB had demonstrated an intent to deprive the plaintiff of a real remedy, but the District Court held, and the Court of Appeals agreed, that the insurance policy covering MH 370 provided a means of redress in Malaysian courts.  Moreover, a foreign forum is not inadequate just because it would afford the plaintiffs less favorable substantive law, as Malaysia likely would.

The Court of Appeals held similarly with respect to the balancing of the private the public interest factors.  The relevant public interest factors include, among other things, administrative difficulties, the local interest in having local controversies decided at home, and the desire to avoid U.S. courts applying foreign law.  The Court of Appeals affirmed the District Court’s holding that the public interest factors favored dismissal on the grounds that Malaysia’s public interest in having claims arising from MH 370’s disappearance in Malaysia far outweighed the U.S. interest, even with regard to claims against Boeing, a U.S. manufacturer.

The private interest factors include the relative ease of access to sources of proof, the costs and mechanisms required to secure attendance of witnesses and all other factors that make a trial easy, expeditious and inexpensive.  Here too the Court of Appeals found that these factors favored dismissal to Malaysia.

The plaintiffs raised two additional arguments on appeal. First, they argued that the District Court should have but did not afford significant deference to the plaintiffs’ choice of forum.  Specifically, one plaintiff was a U.S. citizen and the District Court grouped his claims with the foreign plaintiffs.  The Court of Appeals disagreed, holding that the District Court had balanced the public and private interest factors carefully keeping in mind the deference that should be paid to the plaintiffs’ choice of forum.

Second, the plaintiffs argued that the District Court should have reached a sovereign immunity challenge raised by MAB/MAS before addressing their forum non conveniens arguments.  The Court of Appeals disagreed, holding that nothing in the case law required the District Court to resolve sovereign immunity issues before forum non conveniens ones.  The Court held that the District Court properly held that sovereign immunity issues were a public interest factor that weighed in favor of dismissal without resolving the issue itself.

Based on the foregoing, the District Court’s dismissal of all plaintiffs’ claims on forum non conveniens grounds was affirmed in its entirety.

 


 

[1] 946 F.3d 607 (D.C. Cir. 2020).

[2] At the time of the flight, the government of Malaysia owned a controlling interest in MAS. Subsequently, a new airline was formed, Malaysia Airlines Berhad (“MAB”), which under Malaysian law took MAS’s assets but not its liabilities.

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