As readers will be aware from earlier articles (see [1978] 4 LMCLQ 609, [1979] 3 LMCLQ 351 and [1980] 1 LMCLQ 59) one of the main thrusts of aviation accident litigation before the United States Federal Courts in the last two years has been the battle to redefine the ground rules upon which Judges base the exercise of their discretionary power to bar litigants from their jurisdictions on grounds of “inconvenience”. Lee S. Kreindler, the noted plaintiff attorney, writing in the New York Law Journal on Aug. 15, 1980, described the making of motions to dismiss for forum non conveniens as “the most popular sport among aviation liability defendants”.

While the developments are of course of interest to the North American legal profession they are of equal significance to foreign practitioners. The outcome of the debate will serve to dictate the extent to which overseas passengers killed or injured in U.S.-built but foreign operated aircraft can continue to treat the U.S. court structure as an extension of their own domestic legal systems. A limited recovery against a non-American airline may be turned into a windfall harvest if even a tenuously based criticism of the U.S. product can be presented to a U.S. jury.

The cases touched on in earlier articles have all reflected a trend on the part of the Federal judiciary away from the “open court” philosophy of the early 1970s towards a much narrower right of access. One of the often expressed justifications has been the argument that it will be a foreign country which will have to maintain the dependants of the foreign victim if they are not adequately compensated. It is therefore that foreign jurisdiction which has the greatest interest in ensuring that compensation appropriate to local circumstances is paid. This rationale may sound somewhat hollow to the ears of the unsuccessful plaintiff when the sole objective of U.S. proceedings is to obtain damages dramatically in excess of whatever could be anticipated locally.

However, another perhaps more practical reason has been that the Federal Courts are becoming increasingly congested (with both civil and criminal matters demanding attention) and the Judges are attempting to deter the growing tendency of nontaxpayers to seek a place in the queue of U.S. justice.

Nevertheless, contrary to this recent trend there has been a recent decision of the Court of Appeals for the Third Circuit which goes some way towards restating the traditional interpretation of the rules on forum non conveniens. Whether the decision