DELTA AIR LINES v. CHIMET, S.P.A

cting the convenience of the litigants, and a list of `public interest factors' affecting the convenience of the forum." Piper Aircraft 454 U.S. at 241, 102 S.Ct. 252 (quoting Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839). The private interest factors affecting the convenience of the litigants include:

the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.

Gilbert, 330 U.S. at 508, 67 S.Ct. 839; see Piper Aircraft, 454 U.S. at 241 n. 6, 102 S.Ct. 252. The public interest factors affecting the convenience of the forum include:

the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home"; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.

Piper Aircraft, 454 U.S. at 241 n. 6, 102 S.Ct. 252 (quoting Gilbert, 330 U.S. at 509, 67 S.Ct. 839). Delta argues that the District Court erred in its application of both sets of factors.

1.

We begin by analyzing the private interest factors that supported the District Court's conclusion that Italy would be a significantly more convenient forum for the litigants. The District Court concluded that "[a]ll of the evidence regarding the communications between Chimet and Delta, the meaning of the term `VAL VAL VAL VAL,' and whatever documentary evidence exists outside of the air waybill and delivery receipt is in Italy." App. 31-32. The court also noted that Chimet would need to depose third-party witnesses who reside in Italy, speak only Italian, and are beyond the scope of the Court's subpoena power. App. 32. The court further reasoned that "all of the documentary evidence, other than the waybill and receipt, memorializing the involvement of Chimet, Arexpress, Securpol Vigilantes, Vicenza Sped, and Malpensa Logistica Europea S.p.A. is located in Italy and will be in Italian." App. 32-33. The District Court therefore concluded that these private interest factors supported dismissal.

Delta counters that none of the evidence cited by the District Court is actually necessary to adjudicate the dispute. It contends that the dispute can be resolved by applying the Montreal Convention's liability provisions to a single contractual document: the air waybill. Delta therefore argues that the District Court's analysis was based on the faulty premise that additional evidence would need to be gathered in Italy. We have explained that for the ease of access to evidence to enter the Gilbert analysis, the evidence in question must actually be relevant to resolving the dispute:

In examining the relative ease of access to sources of proof, and the availability of witnesses, the district court must scrutinize the "substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant to, the plaintiffs cause of action and to any potential defenses to the action."

Lacey, 862 F.2d at 46 (quoting Van Cauwenberghe, 486 U.S. at 528, 108 S.Ct. 1945); accord Lony, 886 F.2d at 635-36. If resolution of Delta's claim under the Montreal Convention did not require looking beyond the air waybill, as Delta argues, then the District Court should not have considered Chimet's asserted need to gather additional evidence in Italy. We must examine how the transactional documents in the record fit within the contractual scheme created by the Montreal Convention to evaluate Delta's argument.

"When interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988) (quotation marks omitted). The Montreal Convention limits the carrier's liability for loss of cargo, unless the consignor declares a higher value:

In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum. . . .

Art. 22(3). The Convention does not specify how this "special declaration of interest" is to be documented, but it does require the delivery of a document, typically an air waybill, to preserve the record of carriage. See Art. 4(1) ("In respect of the carriage of cargo, an air waybill shall be delivered."); Art. 4(2) ("Any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill."). If a document other than a waybill is used to preserve the record of carriage, "the carrier shall, if so requested by the consignor, deliver to the consignor a cargo receipt permitting identification of the consignment and access to the information contained in the record preserved by such other means." Art. 4(2). The Convention specifies certain information that must be included in the air waybill or cargo receipt, including "an indication of the places of departure and destination," and "an indication of the weight of the consignment." Art. 5. The consignor is responsible for the accuracy of the information in the air waybill or cargo receipt, Art. 10(1), even if the carrier "makes out the air waybill . . . on behalf of the consignor," Art. 7(4). Accordingly, "[t]he consignor shall indemnify the carrier against all damage suffered by it, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness" of the information "furnished by the consignor or on its behalf." Art. 10(2). The Convention also provides that "[t]he air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo, and of the conditions of carriage mentioned therein." Art. 11(1).

Delta argues that under these Montreal Convention provisions, this case can be decided solely by reference to the air way-bill. As set forth above, the Convention designates the air waybill or cargo receipt as the primary mechanisms for recording the conditions of carriage. The Convention also provides that the consignor is responsible for creating the air waybill, see Art. 7(1) ("The air waybill shall be made out by the consignor. . . ."), for the accuracy of the air waybill, and for any damages caused by inaccuracies in the air way-bill. Art. 10. Based on these provisions, Delta argues that Chimet failed to fulfill its responsibility to declare "a special declaration of interest" under Article 22(3).

We agree that Chimet failed to document in the waybill that it made a special declaration of interest or paid a supplemental sum. The waybill does not include any explicit reference to a declared value, and Chimet was responsible for completing the waybill and verifying its accuracy. We also agree with Delta's general contention that an air waybill typically functions as the primary mechanism for documenting the terms of carriage. We disagree, however, that this dispute can be conclusively resolved solely by examining the air way-bill.

As the District Court recognized, the air waybill includes conflicting and inconsistent information. The air waybill describes the goods as "PURE PLATINUM" and includes the following entry:

VAL VAL VAL VAL

THE FINAL TRANSPORTATION FROM THE AIRPORT TO THE CONSIGNEE'S ADDRESS MUST BE PERFORMED BY CUSTOMS BROKERS OR SPECIALISED COURIERS TO FORWARD VALUABLE CARGO

App. 96. Although the meaning of the "VAL VAL VAL VAL" is not clear, the reference to valuable cargo supports Chimet's contention that it declared a higher value for the shipment. Chimet has also produced an affidavit stating that the "air waybill shows that additional transportation costs were paid." App. 118.

The delivery receipt constitutes documentary evidence that Chimet may have declared a value of Q3,050,000.00 for the shipment. Chimet asserts that when Delta received the shipment, it also "received a delivery receipt from Vicenza Sped for the Platinum that listed the value of the Platinum as Q3,050,000.00." App. 116. The delivery receipt, although somewhat difficult to interpret, includes an entry that corroborates this value. See App. 94 (listing "EU 3.050.000,00"). Although we disagree with Chimet's suggestion that the delivery receipt functions as a "cargo receipt" providing " prima facie evidence" of the declared value under Article 11 of the Convention, see Chimet Br. at 19, we conclude that the documentary evidence in the record does not conclusively resolve the dispute.

The "cargo receipt" is a document prepared by the carrier at the request of the consignor. Art. 4(2). The delivery receipt was prepared by Vicenza Sped, not Delta. App. 94. Moreover, the delivery receipt does not appear to include the information required under Article 5 of the Convention.

Nothing in the Montreal Convention precludes the consideration of extrinsic evidence to determine the terms of the contract of carriage. On the contrary, the Convention includes language suggesting that other evidence beyond the air waybill may be considered. While the Convention designates the air waybill as the default method for preserving a "record of the carriage," it also contemplates the possibility that "[a]ny other means" may be used to preserve such a record. Art. 4(2); see also Art. 10(1) (referring to the "record preserved by the other means referred to in paragraph 2 of Article 4"); Art. 10(3) (same). In addition, Article 11 provides merely that the "the air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo, and of the conditions of carriage mentioned therein." Art. 11(1). This word choice — as contrasted with more explicit options such as "conclusive" or "complete" — clearly contemplates the possibility that the air waybill or cargo receipt may be rebutted by other evidence. See Black's Law Dictionary (8th ed. 2004) (defining " prima facie evidence as "[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced "(emphasis added)). The delivery receipt provides at least some evidence to rebut Delta's position that no supplemental value was declared. Given the apparent tension between the waybill and the delivery receipt, as well as potential inconsistencies within the waybill itself, the District Court did not err by considering the parties' ability to gather additional evidence on this disputed issue.

The provision in Article 4(2) stating that "[i]f such other means are used, the carrier shall, if so requested by the consignor, deliver to the consignor a cargo a receipt permitting identification of the consignment and access to the information contained in the record preserved by such other means" does not rule out the possibility that another method for preserving the record of carriage, other than a waybill or cargo receipt, may have been used.

Furthermore, Chimet met its burden of demonstrating that this evidence may only be obtained in Italy. Chimet produced an affidavit attesting to the need to obtain testimony from a number of Italian witnesses over whom United States courts lack subpoena power:

To resolve the issue of whether Chimet made a declaration of value for shipment and paid a surcharge for it, Chimet will require the testimony of at least Arexpress and Vicenza Sped and the following individuals: Mr. Manuele Nocenti of Arexpress who arranged the operations pertaining to the transportation and custom clearance of the Platinium and gave instructions to Securpol and Vicenza Sped; Mrs. Stefania Criscuolo and Lavinia Damian of Vicenza Sped who [were] aware of the conditions in which [the] air waybill and delivery receipt were completed and provided to Delta; and also Messrs. Mattteo Vencato and Corrado Vezzaro who, on behalf of Vicenza Sped, physically delivered the goods to the agent of Delta received from this agent, as acknowledgment, the stamp signature on the "merchandise delivery receipt" mentioned above.

App. 118-19. This affidavit was sufficient to meet Chimet's burden of persuasion on this point. A party seeking to dismiss an action on forum non conveniens grounds is not required "to describe with specificity the evidence they would not be able to obtain if trial were held in the United States." Piper Aircraft, 454 U.S. at 258, 102 S.Ct. 252. The Supreme Court has rejected the suggestion that "defendants seeking forum non conveniens dismissal must submit affidavits identifying the witnesses they would call and the testimony these would provide if the trial were held in the alternative forum," explaining that "[s]uch detail is not necessary." Id. Rather, the defendant "must provide enough information to enable the District Court to balance the parties' interests." Id. In this case, Chimet identified the witnesses it intended to depose and proffered in oral argument the information that it expected to obtain. Given these representations, the District Court did not abuse its discretion in determining that access to evidence and the availability of witnesses weighed in favor of dismissal.

Delta also challenges the District Court's analysis regarding Chimet's stated intent to join third parties that it could not join if the litigation were to go forward in the United States. The District Court considered "Chimet's ability to join Arexpress, Securpol Vigilantes, Vicenza Sped, and Malpensa Logistica Europea S.p.A. in its litigation with Delta" as an additional private interest factor supporting dismissal. App. 33. A defendant's "stated desire to pursue contribution claims against potentially responsible third parties" is a relevant private interest factor. Windt, 529 F.3d at 195. Delta asserts that Chimet has not, in fact, pursued claims against these third parties, and that the statute of limitations for bringing a claim under the Montreal Convention has now lapsed. See Delta Reply Br. at 5-6. Given our direction that a defendant's " stated desire" to pursue claims against foreign third parties must be considered among the private factors, Windt, 529 F.3d at 195 (emphasis added), Delta's argument that Chimet has not followed through on that stated desire does not warrant vacating the judgment. The District Court reasonably concluded that the private interest factors weighed in favor of dismissing the action.

2.

We turn next to the District Court's consideration of the public interest factors. The District Court concluded that "the local interest in having localized controversies decided at home favors dismissal of this action" because the "locus of the alleged culpable conduct is Italy." App. 34 (citing Lacey, 862 F.2d at 48). The court also concluded that "the administrative difficulties flowing from court congestion is a neutral factor" and that the courts in the two countries are "equally qualified to interpret and enforce" the Montreal Convention. App. 34.

Delta argues that the District Court failed to give sufficient weight to Pennsylvania's interest in the dispute. The factual issues at the center of this dispute, however, all involve whether Chimet declared the value of the shipment when it delivered the platinum to Delta in Italy. The circumstances under which the shipment of cargo was lost in Pennsylvania are not relevant to determining whether Delta's liability is limited under the Mont-real Convention. "In evaluating the public interest factors the district court must `consider the locus of the alleged culpable conduct, often a disputed issue, and the connection of that conduct to plaintiffs chosen forum.'" Lacey, 862 F.2d at 42 (quoting Van Cauwenberghe, 486 U.S. at 528, 108 S.Ct. 1945). We agree with the District Court that the locus of the alleged culpable conduct was Italy, not Pennsylvania. The District Court therefore reasonably concluded that the public interest factors also supported dismissal of the action.

* * * *

Insofar as both sets of Gilbert factors — the private interest factors affecting the convenience of the litigants and the public interest factors affecting the convenience of the forum — weighed in favor of litigating this dispute in Italy, the District Court did not abuse its discretion by granting Chimet's motion to dismiss on forum non conveniens grounds.

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.