law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient.").
The principle of forum non conveniens permits the court to decline otherwise proper jurisdiction over an action where the convenience of the parties and witnesses, or the administrative constraints on the court, would be better served by allowing the action to proceed in a different available forum. Dahl v. United Technologies Corp., 632 F.2d 1027, 1029 (3d Cir. 1980). Analysis of a forum non conveniens motion is flexible, and relies on careful consideration of a number of factors.
These factors were first set forth with respect to federal courts by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), and involve the balancing of certain private and public interests. These oft-cited factors merit close attention, but are not reached unless it is first established that an appropriate alternative forum exists. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22, 70 L. Ed. 2d 419, 102 S. Ct. 252.
In this case, the potential alternative fora are Scotland and England. The plaintiff does not dispute the fact that ordinarily courts of these countries of the United Kingdom are adequate alternatives to United States courts. Indeed, in Reyno itself, the Supreme Court recognized that the Scottish courts are adequate fora for the resolution of personal injury actions even though a plaintiff may not be able to rely on a strict liability theory and the potential damages award may be less. Reyno, 454 U.S. at 254-255.
The plaintiff argues that United Kingdom courts would be inadequate because their application of Scottish or British law to this case would deprive the plaintiff of a right secured by the Treaty of Friendship, Commerce and Navigation, January 21, 1950, United States-Ireland, Article IV(1), 1 U.S.T. 788, 790, T.I.A.S. No. 2155 (Treaty), that asserted right being the right to recover punitive damages under Pennsylvania law. Article IV(1) of the Treaty provides in pertinent part that "nationals of either Party shall be accorded national treatment in the application of laws and regulations within the territories of the other Party that (a) establish a right of recovery for injury or death." "National treatment" is defined as "treatment accorded within the territories of a Party upon terms no less favorable than the treatment accorded therein, in like situations, to nationals . . . of such Party." Treaty, Art. XXI(1), 1 U.S.T. at 801 (emphasis added).
Because the plaintiff holds dual citizenship of Great Britain and the Republic of Ireland, she is entitled to the national treatment secured by the Treaty. Plaintiff has invoked this court's diversity and admiralty jurisdiction. As an Irish citizen, she is entitled to the same rights of recovery afforded to any citizen of a State of the Union, other than Pennsylvania, who files a diversity action in this federal district court. To the extent that such a plaintiff would be entitled to recover punitive damages under the laws and regulations within the United States, so may Mrs. Jennings. But equally, to the extent that the court may consider and dismiss a case for forum non conveniens as to an American nonresident of Pennsylvania who files an action in Pennsylvania, so may it dismiss an action as to an Irish citizen. The Treaty provides for similar treatment in like situations; clearly it affords Irish citizens no greater rights than those afforded to United States citizens. Therefore, if a diversity action filed by an American citizen may be dismissed even though such a dismissal might result in the loss of a potential punitive damages award, so may such an action be dismissed when filed by an Irish citizen entitled to national treatment under the Treaty.
In Reyno, a products liability action was brought in federal court by the personal representative of the estates of Scottish citizens killed in an airplane crash in the Scottish Highlands. The personal representative was a California resident and a United States citizen. The defendants were the Pennsylvania manufacturer of the plane and the Ohio manufacturer of the plane's propellers, while the plane itself was registered in Great Britain and was owned and operated by companies organized in the United Kingdom. In that case, the Court held that the fact that adjudication of the action in Scotland instead of the United States could result in a smaller damages award did not bar dismissal on forum non conveniens grounds. 454 U.S. at 255. Although Reyno dealt with a reduction in compensatory damages, and did not expressly address the loss of punitive damages, the Court's reasoning is clearly applicable to such a situation. It is well settled under Pennsylvania law that the right to recover punitive damages is not an independent cause of action, but is merely one measure of damages, which, in addition to compensatory damages, is available in proper cases. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 464 A.2d 1243, 1265 (1983). Under Reyno, therefore, the possibility that a forum non conveniens dismissal of an American plaintiff's action would result in the loss of a potential punitive damages award does not, in and of itself, preclude the dismissal of the action.
Accordingly, it would not preclude the dismissal of an action brought by an Irish citizen.
Moreover, it is by no means certain that punitive damages would in any event be available under Pennsylvania law against the manufacturer of a defective product. The right to punitive damages in a products liability action has been recognized in a few cases in federal court. In re Air Crash at Mannheim, Germany, 575 F. Supp. 521, 525 (E.D. Pa. 1983), rev'd, 769 F.2d 115 (3d Cir. 1985); Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357, 376-377 (E.D. Pa. 1982), aff'd sub nom. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir. 1985). Although the evidence which plaintiff contends she will be able to produce, all of which is seriously disputed by defendant, may show such egregious or reckless conduct as to justify a punitive damage award under Pennsylvania law, there is grave uncertainty as to whether punitive damages may ever be awarded in a products liability case under Pennsylvania law. The issue was expressly reserved by the Supreme Court of Pennsylvania when it disallowed an award of punitive damages in an asbestos injury case. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1094 (1985).
Likewise, the plaintiff's argument that dismissal will deprive her of a right to seek punitive damages proceeds upon the assumption that Pennsylvania law will of necessity apply if this case goes forward in this forum and will not apply if the case proceeds in England or Scotland. This is by no means a foregone conclusion. In diversity actions, a district court's choice of law determination is governed by the choice of law rules of the forum state. Pennsylvania has essentially adopted a modified version of the "most significant relationship" test. See Shields v. Consolidated Rail Corp., 810 F.2d 397, 399-400 (3d Cir. 1987). Under this test, it is not inconceivable that a federal court sitting in diversity might apply the law of Scotland to the issue of damages. See Abiaad v. General Motors Corp., 538 F. Supp. 537, 543 (E.D. Pa.), aff'd, 696 F.2d 980 (3d Cir. 1982) (Applying foreign law, rather than Pennsylvania law, to an action against the manufacturer of a car produced in the United States arising out of an accident in Abu Dhabi caused by defect in the car).
The plaintiff's assumption that Pennsylvania law would govern the scope of recovery is also belied by the fact that federal admiralty law is applicable to this case. It is undisputed that this accident occurred in the North Sea at a point 2.5 miles distant from the Shetland Islands, an archipelago off the coast of Northern Scotland. At the time of the accident, the helicopter was ferrying passengers from an offshore drilling platform to land, an operation traditionally conducted by seagoing vessels. The crash of the helicopter bears a sufficiently significant relationship to traditional maritime activity as to give rise to admiralty jurisdiction. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S. Ct. 2485, 2493, 91 L. Ed. 2d 174 (1986) (crash of helicopter used to ferry oil platform workers to land is within admiralty jurisdiction). The complaint itself alleges as an alternative basis for jurisdiction this court's admiralty jurisdiction. Two causes of action for wrongful death, one statutory and one of general maritime law, exist under federal admiralty law. Neither of these causes of action provides for recovery of punitive damages for wrongful death.
The statutory cause of action was created by Congress in the Death on the High Seas Act (DOHSA), 46 U.S.C. § 761 in 1920. Congress passed DOHSA in response to the inconsistencies created by the Supreme Court's decision in The Harrisburg, 119 U.S. 199, 30 L. Ed. 358, 7 S. Ct. 140 (1886), in which the Court held that in absence of an applicable statute, general federal maritime law did not recognize a wrongful death action for deaths caused on the high seas and navigable waters. In the wake of The Harrisburg, state law was applied by some courts to wrongful deaths occurring within a state's territorial waters, yet the survivors of persons who died beyond that point were left without any remedy. Offshore Logistics, 106 S. Ct. at 2490-2491; Moragne v. States Marine Lines, 398 U.S. 375, 393, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970). In an attempt to provide a uniform and effective wrongful death remedy for deaths occurring beyond the territorial waters of the individual states, Congress enacted DOHSA. Section 761 of the act provides:
Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.