The opinion of the court was delivered by: VANARTSDALEN
On November 6, 1986, a Boeing Vertol 234 Chinook helicopter crashed into the North Sea approximately 2.5 miles off the Shetland Islands, Scotland, with forty-seven persons aboard. Killed in the crash were 45 persons, all of whom, except for three crew members, were workers at the Brent Oil platform in the North Sea. One passenger and one crew member survived. All passengers and crew were apparently British subjects. At the time of the crash, the helicopter, which had been manufactured by the Boeing Company (Boeing) in Pennsylvania, was owned and operated by British International Helicopters (BIH). The helicopter was ferrying the workers from the off-shore oil drilling platform to the Shetland Islands. The British Department of Transport, Accidents Investigation Branch (AIB), determined after a preliminary investigation that the accident resulted from a catastrophic failure of the aircraft's forward transmission spiral bevel gear.
The AIB's investigation of the accident is ongoing.
On January 21, 1987, Boeing filed a motion to dismiss on the grounds of forum non conveniens, agreeing that in the event dismissal was granted, Boeing would submit to the jurisdiction of the English or Scottish courts, waive any statute of limitations defense in any action filed in those courts by the plaintiff within one year, not contest liability for compensatory damages, and pay any judgment for damages awarded in those courts.
Upon plaintiff's request, an extension was granted giving the plaintiff until April 1, 1987, to file a response.
The briefing being complete, this motion is now ripe for decision.
At the outset, the litigation strategies of both parties should be squarely faced. Despite all of the argument about convenience of the parties, in reality, plaintiff wants the action to proceed in this district because she believes that, under choice of law rules, the substantive law that will be applied in this forum will probably result in a more favorable plaintiff's verdict. Specifically, the plaintiff contends that if tried here, the substantive law of Pennsylvania would be applicable; that law, with its availability of strict liability theories, more liberal measure of damages, and the possible right to punitive damages, would make this court a more attractive forum for her. Plaintiff clearly has not chosen to file this action in this court because it is convenient for her. She is a resident of the United Kingdom. She undoubtedly has filed here solely to take advantage of what she perceives to be the more favorable law. As the Supreme Court noted in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 n.15, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981), "dismissal may be warranted where a plaintiff chooses a particular forum, not because it is convenient, but solely in order to . . . take advantage of favorable law."
Defendant, conversely, seeks to force the litigation to proceed in the courts of England or Scotland because it believes that any ultimate recovery in those courts is likely to be less than in this court. Defendant appears to be primarily concerned with the danger of an award against it for punitive damages. Boeing is of the opinion, concurred in by plaintiff, that punitive damages would not be recoverable under English or Scottish law.
Where the substantive law of an alternative forum is less favorable than that of the original forum, any decision on an issue of forum non conveniens will ordinarily result in the application of law more favorable to one party. It is probably for this reason, at least to some extent, that the Supreme Court stated in Reyno :
The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.
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 ...