In the wake of the Asiana airplane crash in San Francisco, the question of where the lawsuit should be held naturally arises.
This is important because where the lawsuit is held determines how much victims can potentially receive in damages. If the lawsuit is filed in China, for example the maximum compensation for such an accident would be $65,000 (400,000 Yuan), compared with a $1.5 million minimum in the U.S. To determine venue, we will touch on the Montreal Convention which is the governing treaty to which the U.S., China, and South Korea are a party to. Then, we will touch on the theory of forum nonconveniens which is an argument that Asiana may raise against holding the litigation here in the U.S.
The Montreal Convention allows a passenger to sue in a variety of countries as a result of air accidents: (1) the carrier's domicile, (2) the carrier's principal place of business, (3) where the ticket was purchased, (4) the flight's destination, and (5) the passenger's "principal and permanent residence," which is defined as "the one fixed permanent abode of the passenger at the time of the accident." Here, some facts that support litigation in the U.S. are: The South Korean Airline does business in the U.S., the accident occurred in San Francisco, the injured were treated in a U.S. hospital, and sixty four of the passengers are U.S. citizens. However, Asiana may argue some facts that suggest the lawsuit being held in China: The plane tickets were purchased in China, the final destination of the round trip was China, and 141 passengers are Chinese nationals.
Furthermore, Asiana may argue that the case can be more conveniently maintained in China under the theory of forum nonconveniens, which basically means China is a more convenient venue for the litigation. For this, a court must consider the private interests of the litigants and the public interests in determining the convenience of the forum. For private interests, the court looks at the availability of evidence and the location of witnesses among other practical problems that affect the cost of the litigation. For public interests, the court looks at administrative difficulties such as congested dockets, burden of jury duty on the people of a community having little or no connection with the litigation, the desirability of holding a trial near those most affected by it, and the familiarity of the court with the governing law.
Here, the facts suggest against the forum nonconveniens argument. Evidence and witnesses are located here, courts here have experience with the substantive law governing airline accidents, and families of victims may be located here and have a connection with the litigation. Moreover, there is ordinarily a strong presumption in favor of the plaintiff’s choice of forum, and dismissal on the basis of forum nonconveniens is normally used only in exceptional situations.