employee, or agent; (B) transfer or permit any of its officers, employees, or agents to transfer such training (including training materials) by gift, sale, or otherwise to anyone not its officer, employee, or agent; or (C) use or permit the use of such training (including training materials) for purposes other than those for which it had been furnished by the United States. The Government of Burma also agreed to maintain the security of the training (including training materials) and to provide substantially the same degree of security protection therefor that the United States Government provided, and to furnish information regarding the use of training and training materials to United States Government representatives. Finally, the Government of Burma agreed to return to the United States Government training materials no longer needed, unless the latter consented to some other disposition.

TIAS 9745; 32 UST 968; entered into force, May 27, 1980.

The United States also concluded substantially similar agreements with: (1) Barbados, by exchange of notes at Bridgetown, dated Mar. 6 and Apr. 3, 1980, TIAS 9743; 32 UST 960; entered into force, Apr. 3, 1980; (2) Botswana, by exchange of notes at Gaborone, dated Feb. 26 and Mar. 21, 1980, TIAS 9742; 32 UST 957; entered into force, Mar. 21, 1980; (3) the United Republic of Cameroon, by exchange of notes at Yaounde, dated Mar. 3 and June 19, 1980, TIAS 9862; 32 UST 2606; entered into force, June 19, 1980; (4) Malawi, by exchange of notes at Lilongwe, dated Mar. 20 and May 1, 1980; TIAS 9744; 32 UST 965; entered into force, May 1, 1980; (5) Republic of Niger, by exchange of notes at Niamey, dated Mar. 11 and June 9, 1980, TIAS 10049; entered into force, June 9, 1980; (6) the Republic of Rwanda, by exchange of notes at Kigali, dated Mar. 6 and 11, 1980, TIAS 10211; entered into force, Mar. 11, 1980; and (7) Suriname, by exchange of notes at Paramaribo, dated Aug. 22 and Aug. 25, 1980, TIAS 9916; 32 UST 3741; entered into force, Aug. 25, 1980; (8) the Republic of Togo, by exchange of notes at Lome, dated Mar. 10 and July 17, 1980; TIAS 9866; 32 UST 2642; entered into force, July 17, 1980.

In Masera v. Trans World Airlines, Inc., 492 F.Supp. 950 (S.D.N.Y. 1980), the surviving spouse and surviving parents of two Trans World Airlines (TWA) flight attendants, killed in a jet crash in the Ionian Sea, brought separate actions for the wrongful death of the decedents, alleging negligence and, in the alternative, strict liability under the Warsaw Convention, as modified by the Montreal Agreement (see, post).

The plaintiffs and the decedents were all citizens and residents of Italy. At the time of the crash the plane was on the Athens-to-Rome segment of a Tel Aviv-New York route, but the decedents were based in Rome and were scheduled to deplane at Rome.

TWA had obtained occupational life and accident insurance (OLAI) in Italy for its employees in compliance with Article 935 of the Italian Code of Navigation. The same article also provides that such insurance relieves the operator for flight accidents of its personnel in the cases provided for by the law on compulsory insurance for accidents on the job. TWA's insurer paid the surviving spouse and the parents, respectively, of the two decedents, who, notwithstanding their signature of releases, thereafter brought suit.

Judge Kevin Thomas Duffy granted the defendants' summary motion for judgment on June 30, 1980, holding that Italian law applied to the case under the conflict of law rules of the State of New York, in particular the "center of gravity" doctrine. Under Italian law the entire case was barred, the Court held, by reason of Article 935 of the Italian Code of Navigation.

The Convention for the Unification of Certain Rules Relating to International Transportation by Air, with Additional Protocol, concluded at Warsaw, Oct. 12, 1929, may be found at TS 876; 49 Stat. 3000; 2 Bevans 983; entered into force, Feb. 13, 1933, for the United States, Oct. 29, 1934.

The Convention was amended by Protocols done at The Hague, Sept. 28, 1955, 478 UNTS 371, and at Guatemala City, Mar. 8, 1971, and by Additional Protocols Nos. 3 and 4, done at Montreal, Sept. 25, 1975. The United States signed all four Protocols, but has ratified none. In regard to the Hague Protocol, see Whiteman, Digest of International Law, Vol. 9 (1968), pp. 584-594. The text of the Protocol done at Guate

mala City, Mar. 8, 1971, is at Dept. of State Bulletin, Vol. LXIV, No. 1661, Apr. 26, 1971, p. 555, and International Legal Materials, Vol. X (1971), p. 613. In regard to Montreal Protocols Nos. 3 and 4, see this Digest, Ch. 8, §1, ante. Neither the Guatemala City Protocol nor the Montreal Protocols had entered into force at the end of 1985. The Montreal Agreement, ante, was concluded among air carriers with the participation of the Department of State, the Civil Aeronautics Board, and the International Air Transport Association (IATA). It was approved by the Civil Aeronautics Board in an order dated May 13, 1966 (Order E-23680, Fed. Reg., Vol. 31, No. 97, May 19, 1966, p. 7302). Under the Montreal Agreement the carriers accepted absolute personal injury liability up to a limit of $75,000 per passenger. Constituting a special contract under Art. 22(1) of the Warsaw Convention, the Montreal Agreement substantially increased the 1955 Hague Protocol personal injury liability limit of approximately $16,600 (as well as the 1929 Warsaw Convention corresponding limit of approximately $8,300). It applies to international air travel on signatory airlines that includes a point in the United States as a point of origin, point of destination, or agreed stopping place.

Because of the conclusion of the Montreal Agreement the United States withdrew its November 1965 (six-month) notice of denunciation of the Warsaw Convention, an account of which and of negotiations thereafter leading to the Montreal Agreement may be found at Lowenfeld and Mendelsohn, "The United States and the Warsaw Convention", 80 Harv. L. Rev. 497 (1967).

See, also, Whiteman, Digest of International Law, Vol. 9 (1968), pp. 552-554.

Forum Non Conveniens

In Harrison v. Wyeth Laboratories Division of American Products Corporation, 510 F.Supp. 1 (E.D. Pa. 1980), Judge Charles R. Weiner of the Eastern District of Pennsylvania on February 19, 1980 dismissed a product liability complaint by United Kingdom residents, that arose out of the manufacture and sale of oral contraceptives in the United Kingdom by the defendant's United Kingdom subsidiary in compliance with United Kingdom standards.

Judge Weiner ruled that even if production and marketing decisions were made by the defendant in Pennsylvania and not by its United Kingdom subsidiary, Pennsylvania's choice-of-law rules required application of the law of the United Kingdom, where much of the evidence needed to establish liability would be found.

The district court conditioned its grant of the defendant's motion to dismiss on forum non conveniens upon the defendant's agreement: (1) to submit to the jurisdiction of United Kingdom courts in any timely instituted action against its subsidiary on the claims involved; (2) to make available at its own expense any documents, witnesses, or other evidence under its control, needed for fair adjudication in the United Kingdom; and (3) to pay any judgment rendered against it in the United Kingdom.

In granting the motion to dismiss, the judge considered the factors as set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509 (1947):

Important considerations are the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining, willing witnesses; . . . and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. . . . [T]here is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum entangle problems in conflict of laws, and in law foreign to itself.

510 F.Supp., at 3-4.

See, also Danser v. Firestone Tire & Rubber Co., 86 F.R.D. 120 (S.D.N.Y. 1980). Saraceno v. S.C. Johnson & Son, Inc., 492 F.Supp. 979 (S.D.N.Y. 1980), another product liability case, involved injuries suffered by the plaintiff spouse while the plaintiffs were living in Spain, that allegedly resulted from the explosion of a can of insecticide manufactured in Europe and sold in Spain by the defendant's Dutch corporate affiliate (Europlant). The question before the Southern District involved the applicability of a decision rendered by the Supreme Court of the United States on January 21, 1980, in Rush v. Savchuk, 444 U.S. 320, which held that a State could not exercise quasi-in-rem jurisdiction over a non-resident defendant solely by attaching the contractual obligation of an insurer, licensed to do business in the State, to defend and indemnify that defendant.

In a decision filed May 7, 1979 (Saraceno v. S.C. Johnson & Son, Inc., and Johnson Wax Europlant, B. V., 83 F.R.D. 65 (S.D.N.Y. 1979)), the Southern District of New York had granted Europlant's motion to dismiss for lack of in personam jurisdiction. On June 26, 1979, the Court had, however, confirmed an order attaching a primary liability insurance policy issued to Europlant by insurance carriers in New York, which the plaintiffs, in an attempt to secure an additional jurisdictional basis under New York law, had obtained prior to filing suit (the Court vacated the order of attachment as against two excess coverage policies).

After the decision in Rush v. Savchuk, Europlant sought to have vacated the order of June 26, 1979, that had confirmed the attachment of its primary liability policy, and also to have the complaint against it dismissed for lack of jurisdiction. Alternatively, Europlant renewed its motion to dismiss on the grounds of forum non conveniens, which had been pending at the time of the Supreme Court's decision. S.C. Johnson & Son, Inc. also renewed its motion to dismiss on the grounds of forum non conveniens.

On July 8, 1980, District Judge Leonard B. Sand granted Europlant's motion to dismiss, but denied Johnson's. In the wake of Rush, ante, Judge Sand said, an insurer's obligation to defend and indemnify a non-resident defendant could not be viewed as a "contact" at all, and Europlant's additional forum contacts were insufficient. While Johnson apparently "reimbursed" Europlant's research and development expenses, its insecticide was a completely European product. Europlant had no offices or employees in New York, owned no property and paid no taxes there, and did no banking there. It did not advertise in New York, and sold nothing either directly or indirectly in New York; its purchases in the state were "insignificant".

As to Johnson, Judge Sand concluded that the plaintiff's choice of a forum should not be disturbed. The plaintiffs and eight of the eleven major lay witnesses were American citizens and amenable to the Court's compulsory process both for deposition and trial. With respect to some issues, particularly Johnson's responsibility for research and development of the product, the Court continued, events relied upon by the plaintiffs allegedly occurred in the United States and voluminous, relevant documentation was in English. The Court agreed with the plaintiffs' contention that the primary evidence regarding Johnson's causation defense (a gas leak outside the plaintiffs' apartment) would be the blood test results on the victim and other Spanish hospital records for the post-accident period, all of which were en route and would be made available to Johnson. As to any other evidence relating to the "causation" defense, the Court noted that "by means of letters rogatory or other procedures not too dissimilar from those which would be utilized by a Spanish court[,] were the case tried under the civil law procedures of that country, the necessary evidence can be accumulated and presented at trial here." Panama Processes, S.A. v. Cities Service Corporation, 500 F.Supp. 787 (S.D.N.Y. 1980), was an action for breach of contract and of fiduciary duty, brought by a minority Panamanian corporate shareholder in a Brazilian corporation against the majority Delaware corporate shareholder in the corporation. The principal place of business of the plaintiff was at London, and of the defendant at Tulsa, Oklahoma.

On November 6, 1980, United States District Judge Charles S. Haight dismissed the complaint on forum non conveniens. The Court predicated its ruling on the fact that since the action impacted directly upon vital operations of a foreign (Brazilian) corporation, the grant of injunctive relief would have involved the Court in the continued monitoring of those operations. In addition, the plaintiff's tort claim had been created under, and was governed under, Brazilian corporate law, the bulk of the pertinent evidence was to be found in Brazil and required translation of a substantial number of docu