Documents constituting necessary evidence are for the most part located in Geneva. Since many are in files of Swiss banks, taxing authorities and courts, it may be impossible to obtain them for trial here. Moreover, even if the documents and witnesses could be brought here, there is a serious problem of translation. The only record of Traum's allegedly defamatory testimony are French minutes dictated by the Swiss judge from the simultaneous French translation of Traum's testimony in English. More to the point, most of the pertinent documents relevant to the underlying dispute are in French. The expense of translation, which is potentially substantial, would be totally avoided if trial is in Geneva.

Another difficulty that must be confronted if trial is held in the Southern District is that, as the parties now seem to agree, Swiss law appears to apply to the tort claims. This necessitates the introduction of inevitably conflicting expert evidence on numerous questions of Swiss law, and it creates the uncertain and time-consuming task of resolving such questions by an American judge unversed in civil law tradition.... Determining the content of Swiss law is obviously easier at a trial in Geneva. Cf. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 509, 67 S.Ct. 839. Finally, there are a number of proceedings pending in Geneva, involving the exact same factual matters at issue here. These litigants already have Swiss counsel well versed in the complicated factual details of this dispute.

Thus, we find the balance of conveniences weighs so heavily in favor of trial in Geneva that not only the usual deference accorded plaintiff's choice of forum is outweighed, but also the potential inconvenience to plaintiff that might result from what appears to be the relatively unlikely chance that Switzerland will not take jurisdiction of this suit even if defendant consents.

In view of all of the above, it is difficult to understand why plaintiff would prefer to litigate here when it is obviously cheaper for him, as well as for defendant, to litigate in Geneva, where it is also likely that the factual record will be more complete, and that application of the law to the facts will be more accurate

So long as the plaintiff is not left remediless, we fail to see why the district court must retain the action regardless of the circumstances.

To insure that plaintiff is not left remediless, however, we need to add another condition to the dismissal. When Judge Metzner dismissed the action he stated that "[s]hould the Swiss court refuse to exercise jurisdiction, or the defendant refuse to submit to jurisdiction, plaintiff may move in this court to restore this action." We add the condition that defendant must waive any statute of limitations defense that has arisen since the commencement of this action in the Southern District.

589 F.2d 1156, 1160-1166.

Punitive Damages

Jackson v. Koninklijke Luchtvaart Maatschappij N.V. a/k/a/KLMRoyal Dutch Airlines, et al., 459 F. Supp. 953 (S.D.N.Y. 1978), was a consolidated action for damages for personal injuries arising from a

crash between a Pan American World Airways 747 plane and a KLM 747 plane on the airport runway at Tenerife, the Canary Islands, Spain, on March 27, 1977. The individual actions, brought by domiciliaries of New York, Pennsylvania, and Tennessee, in the United States District Court for the Central District of California, and transferred to the United States District Court for the Southern District of New York. all raised the issue of which law to apply to determine if punitive damages might be assessed again KLM.

Recognizing that it was bound to apply California's choice of law principles, since the actions had been commenced there, the Court noted that California courts adhered to an interest analysis approach to choice of law, under which they normally applied California law unless a party demonstrated a greater interest by a foreign state in the application of its law to the issue in question.

The plaintiffs contended that their respective states of domicile had the greatest interest in the issue; their laws all provided for punitive damages. KLM asserted that the Netherlands, the place of its incorporation and its principal place of business, and Spain, the country in which the accident occurred, were the only jurisdictions with a significant interest in the issue of punitive damages. Neither country's laws provided for imposition of punitive damages in personal injury actions.

District Judge Robert J. Ward granted KLM's motion to dismiss the claims for punitive damages. Excerpts from his decision of November 8, 1978, follow:

[T]he California Supreme Court has recognized that the interest in regulation of conduct in tort cases is primarily local in character, and is the concern of the jurisdiction in which the conduct occurred...

[T]he domiciliary States have no significant interest in imposing punitive damages in these cases because the conduct in question did not occur there

Spain's policy of not imposing punitive damages in tort cases reflects its judgment that its interest in protecting the financial security of those doing business in Spain, such as KLM, Hurtado

[v. Superior Court, 11 Cal. 3d 574], at 585, 114 Cal.Rptr. at 113, 522 P.2d at 673, outweighs its interest in imposing punitive damages as a means of regulating conduct. The Netherlands, KLM's place of incorporation and principal place of business, has a similar interest in protecting KLM from excessive financial burdens. Id. at 580-81, 584, 114 Cal.Rptr. at 110, 112, 522 P.2d at 670, 672; ... [citations omitted]. The interests of Spain and the Netherlands are accentuated under present circumstances, where hundreds of damage claims have been asserted against KLM.

Because application of the laws of plaintiffs' domiciliary states would advance no substantial interest of those states and would impair significant interests of Spain and the Netherlands, the Court

བ

concludes that a California court would apply the law of Spain or the Netherlands to the punitive damages issue herein.

459 F. Supp. 953, 956.

Long Arm Statutes

In Ladd v. KLM Royal Dutch Airlines, 456 F. Supp. 422 (S.D.N.Y. 1978), the United States District Court denied KLM's motion to dismiss (for lack of personal jurisdiction) a wrongful death action arising out of the 1977 aircraft collision on the runway at Tenerife, ante. A Tennessee domiciliary had commenced the action in the Middle District of Tennessee; it had been transferred subsequently to the Southern District of New York. At issue was the Tennessee long arm statute, T.C.A. section 20-235, which provided in part that corporations and other entities unavailable for personal service in the State would be deemed to have submitted to its jurisdiction if they had acted "in the manner above described through an agent or personal representative."

District Judge Robert J. Ward held that KLM's contacts with the I State of Tennessee were sufficient to satisfy Federal due process requirements for sustaining State jurisdiction under the long arm statute. Excerpts from his opinion of September 1, 1978, follow:

KLM contends that it is not subject to service of process in Tennessee. The amenability of a defendant to suit in a federal diversity action is governed by the law of the state in which the federal court sits, so long as that state's law comports with constitutional requirements.... [Citations omitted.] Since this action was commenced in the Middle District of Tennessee, the Court must look to Tennessee law.

. Under federal due process requirements, jurisdiction over a foreign corporation may be sustained only if the corporation has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice."" International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940); accord, Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). There is no invariable rule for determining whether sufficient "minimum contacts" exist. Rather, "[t]he amount and kind of activities which must be carried on by the foreign corporation in the state of the forum so as to make it reasonable and just to subject the corporation to the jurisdiction of that state are to be determined in each case." Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 418, 96 L.Ed. 485 (1952). The fact that the cause of action is entirely unrelated to the corporation's activities within the state does not preclude a finding of jurisdiction. . . .

KLM contends that it lacks sufficient contacts with Tennessee to require it to defend a lawsuit there. It asserts that: it is a Dutch corporation with its principal place of business in the Netherlands; it is not authorized to fly into or out of any place within Tennessee;

it is not authorized to do business in Tennessee and pays no taxes there. KLM further states that it has no office or bank account in Tennessee, and it does not own, lease or have any interest in any real property in that state. Defendant also submits that none of its directors, officers or employees reside in Tennessee 3 and that it has no general agent or agent for the service of process there.

In opposition, plaintiff points to contacts which do exist between KLM and the Tennessee forum. For example, KLM maintains listings of out-of-state, toll-free numbers in the telephone directories of six major urban centers in the state. Tennessee residents can call these numbers for information regarding KLM passenger and freight flights, reservations and fares. In addition, as part of its national marketing program, KLM places periodic advertisements in The Wall Street Journal and The New Yorker, both of which are circulated in Tennessee.

Plaintiff also notes that KLM supplies posters, brochures and other promotional materials to Tennessee travel agents and, more significantly, that KLM sales representatives make calls in Tennessee on a regular basis. . . . In the Court's view, it is thus clear that KLM has sought, in a continuous and systematic manner, including but not limited to the frequent presence of its own sales representatives in the state, to benefit from the sale of tickets to Tennessee residents.

In addition, plaintiff points out that tickets are actually sold by a large number of travel agents in Tennessee. There are eighty-five travel agents in the state approved by the International Air Transport Association. All of these agents have authority to issue tickets on behalf of those airlines from which they have received airline identification plates. A ticket issued in the name of any such airline may provide that a portion of the transportation be furnished by KLM. Moreover, KLM has issued its own airline identification plates to more than sixty Tennessee travel agencies. These agencies can not only issue tickets which include transportation on a KLM aircraft, but also, through use of the plate on blank Air Traffic Conference ticket stock, can issue tickets in KLM's name and airline code number. The dollar volume of those tickets issued in Tennessee in KLM's name alone amounted to $323,304 in 1976 and $238,019 in 1977. These figures demonstrate to the Court that KLM has not only sought to benefit from Tennessee sales in a continuous and systematic manner, but also that the corporation has succeeded in this regard.

That the sales have been consummated by travel agents residing in Tennessee, and not through persons on KLM's own payroll is not significant for these purposes:

Clearly it would not comport with notions of fair play and substantial justice to allow a business enterprise, whose overriding business purpose is maximum exploitation of the national market, to be free from suit as a matter of law simply because physical contacts . . . had been reduced to a minimum. . . . The fact that physical contacts are minimized

through the use of independent contractors and distributors does not alter the basic existence of . . . [a defendant's] involvement in, and its pecuniary benefit from, a full exploitation of the . . . market.

[Citations omitted.]

Accordingly, the Court concludes that KLM has sufficient "minimum contacts" with Tennessee so that it would not "offend 'traditional notions of fair play and substantial justice'" to require it to defend this action in that state. Therefore, the motion is denied.

3 But see note 4, infra.

In its second supplemental answers to plaintiff's interrogatories, KLM indicated that on June 2, 1978, . . . had a "[v]isit with . who is now KLM's resident Sales Representative in Memphis." The record does not indicate when . . . was installed in this position. Because the record in this respect is unclear and because the Court has concluded that due process requirements are met in this case even absent. . .'s presence, the Court has not considered this contact for present purposes. It should be noted, however, that the presence of a resident sales representative would serve to strengthen KLM's connection with Tennessee.

456 F. Supp. 422, 423–425.

See further, the 1975 Digest, pp. 458-459.

§ 2

Multilateral Conventions

Form of International Wills

Uniform Probate Code Amendments

On February 14, 1978, the House of Delegates of the American Bar Association, meeting at New Orleans, Louisiana, approved by voice vote amendments to Article II of the Uniform Probate Code, which the National Conference of Commissioners on Uniform State Laws had approved and recommended at its 1977 meeting for enactment by all States adopting the Code.

The amendments followed the substantive provisions of the Uniform Law on the Form of an International Will, contained as the Annex to the Convention Providing a Uniform Law on the Form of an International Will, adopted at Washington, D.C., on October 26, 1973.

American Bar Association, Summary of Action Taken by the House of Delegates of the American Bar Association, . . . [New Orleans, Louisiana, February 13-15, 1978] (1978), p. 37.

The Convention entered into force on February 9, 1978, although not for the United States.