Petition for Writ of Certiorari — Diaz v. Mexicana de Avion, S. A.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

DAVID RODRIQUEZ DIAZ, et al,

Petitioners,

Vv.

MEXICANA DE AVION, S.A., and

BOEING COMMERCIAL AIRPLANE COMPANY,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

GEORGE M. FLEMING

RALPH RAY GREGORY, JR.

LAW OFFICES OF

GEORGE M. FLEMING, P.C.

1330 Post Oak Boulevard

Suite 3030

Houston, Texas 77056

(713) 621-7944

Attorney for Petitioners

DAVID RODRIQUEZ DIAZ, et al

HHH

QUESTION PRESENTED

Whether the District Court erred in dismissing the case due

to Defendants’ failure to sustain their forum non

conveniens burden of proof in a case which includes:

a. the deaths of United States citizens and foreigners;

b. allegations of design defect in a United States

manufactured and designed product;

c. substantial sources of evidence, including after-

accident investigative reports, witnesses and

proof, in the United States; and

d. jurisdiction over both Defendants in the United

States.

PARTIES TO THE PROCEEDINGS

Pursuant to Supreme Court Rules 15.1(b) and 28.1,

unsel for Petitioners certifies that the parties to this proceedings

ALMA TORRE BLANCA de AGUILAR as Wife of

David Alberto Aguilar Chavez, deceased

BOEING COMMERCIAL AIRPLANE COMPANY

DAVID RODRIQUEZ DIAZ as Husband of Imelda

Zaldivar Moreno de Rodriguez, deceased and as Father of

Marie Gabriela R. Zaldivar, deceased, and Anabel R.

Zaldivar, deceased

ESPERANZA ESTAVILLO DIAZ and LUZ MA.

ESTAVILLO DIAZ, as Daughters of Horacio Alfonso

Estavillo Laguna, deceased, and Maria de la Luz Diaz de

Estavillo, deceased, and as Sisters of Horacio Estavillo

Diaz, deceased

MARIA DOLORES ROSALES DIAZ, as Daughter of

Julia Diaz Cobian de Rosales, deceased, and Natael

Gerardo Rosales Flores, deceased

MARIE CONCEPCION GOMEZ HERNANDEZ as

Daughter of Jesus Gomez Hernandez, deceased, and

Teresa Hernandez de Gomez, deceased

SUSAN GOLDRING as Executrix of the Estates of

Jonathan M. Rivaud, deceased, and Peter J. Rivaud,

deceased

CORONAL JESUS ERNESTO MERINO ORTEZ as

Husband of Margarita del Toral Merino, deceased, and as

Father of Monica Merino del Toral, deceased, Margarita

Merino del Toral, deceased, and Marcela Merino del

Toral, deceased

MEXICANA DE AVION, S.A.

NORA RIVAUD as Executrix of the Estates of John

Michael Rivaud, deceased, and Yayone Rivaud, deceased

CAROLINA HUITRON ESPANOZA de YTARTE as

Wife of Augustin Ytarte, deceased

iV

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases

Gulf Oil v. Gilbert, 330 U.S. 501 (1944).

In Re Air Crash Disaster Near New Orleans, La.,

821 F.2d 1147 (Sth Cir. 1987).

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).

Schexnider v. McDermott International, Inc.,

817 F.2d 1159 (Sth Cir. 1987).

Syndicate 420 at Lloyd's London v. Early American

Insurance Co., 796 F.2d 821 (5th Cir. 1986).

Statutes & Regulations

28 U.S.C. §1254(1)

28 U.S.C. §1602, et seq.

PAGE

SEEEEREREREER SS

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

DAVID RODRIQUEZ DIAZ, et al,

Petitioners,

Vs

MEXICANA DE AVION, S.A. and

BOEING COMMERCIAL AIRPLANE COMPANY,

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinions of the District Court and the Appeals Court

were not published but are set out hereto as Appendix A and B

respectively.

JURISDICTION

The Court of Appeals for the Fifth Circuit originally

entered judgment in this matter on March 22, 1988. Appendix B.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§1254(1).

STATUTORY PROVISIONS INVOLVED

This case invokes the Foreign Sovereign Immunities Act,

28 U.S.C. §1602, et seq

STATEMENT OF THE CASE

This case was filed in Texas State District Court as a result

of the crash of a Boeing 727 airline. On March 31, 1986,

Mexicana Airlines Flight 940 crashed near Michoacan, Mexico.

All 166 persons on board the aircraft died.

The day before the accident, the aircraft was located in

Chicago. While in Chicago, the accident aircraft was serviced and

maintained by agents or representatives of Mexicana. From

Chicago, the aircraft was flown to Mexico City. On March 31,

1986, Mexicana Flight 940 took off from Mexico City with a final

destination of Los Angeles, California with intermediate stops in

Mexico. After take off, the aircraft climbed to the appropriate

altitude. After the aircraft landing gear had retracted into the

aircraft a tire exploded, which lead to a catastrophic wing failure

and the crash.

Numerous United States resources, both public and

private, were utilized to deiermine the causes of the crash. The

nthe

SEER EERRZERELELE

3

United States National Transportation Safety Board participated in

the on-scene investigation of the crash. Those aircraft parts

suspected of being a cause of the crash of this Boeing aircraft

were sent to United States facilities for examination and analysis.

One of the aircraft's four brake assemblies suspecied of being a

cause of the crash was sent to the facilities of the wheel and brake

manufacturer in Ohio for examination. Other parts of the aircraft

wreckage were sent to Boeing's Seattle, Washington, facility for

examination, inspection and determination of their causal

connection to the crash.

In response to this aircrash disaster, the United States

Federal Aviation Administration issued a Notice of Proposed

Rulemaking regarding Boeing 727 and other transport category

aircraft. This Notice proposed an airworthiness directive relating

to aircraft tire explosions. That Notice stated in pertinent part with

regard to 727s that "a tire explosion in the wheel well during flight

is suspected in a Catastrophic loss of one airplane and severe

damage to others." The “catastrophic loss” referred to is the crash

of Mexicana Flight 940.

Of the individuals that died in the crash, ten were residenis

and/or citizens of the United States. Among the citizens and/or

residents of the United States on board the accident aircraft were

the following Plaintiffs’ decedents: (1) John Rivaud; (2) Yayone

Rivaud; (3) Jonathan Rivaud; (4) Peter Rivaud.

Defendants are Mexicana and Boeing. Boeing is a United

States manufacturer and designer of aircraft. It is the

manufacturer and designer of the Boeing 727 aircraft involved in

this accident. Boeing is a major United States aerospace company

4

that maintains offices and employees throughout the United

States.

Mexicana Airlines was the aircraft operator at the time of

the accident. Mexicana is owned and/or controlled by the

Mexican government. At the time of the crash of Mexicana Flighi

940, Mexicana conducted its commercial operations

internationally between Mexico and the United States pursuant to

its United States Permit to Foreign Air Carrer. See Appendix C.

The permit was issued by the United States Department of

Transportation. The permit, among other things, allowed

Mexicana to fly to Los Angeles, California, which was the final

destination of Mexicana Flight 940. By accepting the permit,

Mexicana waived any right it may have had to assert any defense

of sovereign immunity from suit for any action or proceeding

instituted against Mexicana in any court in the United States.

Plaintiffs filed this case for the deaths of their decedents in

the State District Court of Bexar County, Texas, against Mexicana

and Boeing. Mexicana removed the case to the United States

District Court for the Western District of Texas based on the

Foreign Sovereign Immunities Act. Boeing joined in the Petition

for Removal. On January 23, 1987, the District Court entered an

Order finding that jurisdiction existed, and granted Plaintiffs’

motion for leave to file an amended complaint. The District Court

then dismissed the case pursuant to the doctrine of forum non

conveniens. Plaintiffs filed a Motion for Reconsideration of the

District Court's January 23, 1987 Order. On April 17, 1987, the

District Court denied Plaintiffs’ Motion for Reconsideration.

Plaintiffs timely filed Notice of Appeal to the United States Court

of Appeals for the Fifth Circuit. On March 22, 1988, the United

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States Court of Appeal for the Fifth Circuit affirmed the Judgment

of the District Court.

REASON FOR GRANTING THE WRIT

I.

In making a forum non conveniens determination, the

district court should afford substantial weight to plaintiff's choice

of forum, and such choice of forum should rarely be disturbed.

Gulf Oil v. Gilbert, 330 U.S. 501 (1944). An American citizen's

choice of an American forum is entitled to even greater deference

than a foreign plaintiff's selection of an American forum. Piper

Aircraft Company v. Reyno, 454 U.S. 235, 255-256 (1981).

Forum non conveniens dismissal of the present case denies the

Plaintiffs, who include representatives of American decedents,

their right to bring a lawsuit in an American court.

The Court of Appeals, in affirming the District Court's

judgment, cited Piper Aircraft v. Reyno, 454 U.S. 235 (1981) for

the proposition that the presence of a United States citizen as a

plaintiff is not dispositive. See Appendix A. However, in the

Reyno case the plaintiff's decedents were all Scottish citizens. In

the present case, Plaintiffs' decedents include United States

citizens and residents. The opinion of the Appeals Court in this

Case is inconsistent with other Fifth Circuit decisions which held

that only in rare cases should a plaintiff's choice of forum be

disturbed. Jn Re: Air Crash Disaster Near New Orleans, La., 821

F.2d 1147 (Sth Cir. 1987), Schexnider v. McDermott

International, Inc., 817 F.2d 1159 (Sth Cir. 1987)

6

Il.

The Defendant bears the burden of proof in any forum non

conveniens analysis. This requires that Defendant show that both

public and private interest factors establish that the alternative

forum is more convenient to all parties involved. See Gulf Oil v.

Gilbert, 330 U.S. 501, 510 (1944). The private and public

interest factors establish that the United States forum, the

Plaintiffs’ choice of forum, was proper and should not be

disturbed.

Evidence submitted to the District Court regarding the

private interest factors included the following: The sources of

proof regarding the design and manufacture of the accident aircraft

and the aircraft components suspected of causing the crash are in

the United States, not Mexico. Boeing designed, manufactured,

and sold the Boeing 727 accident aircraft in the United States.

Boeing issued servicing, maintenance, operating instructions, and

warnings on the Boeing 727 accident aircraft from the United

States. No component in issue, or any part of the Boeing 727

accident aircraft suspected of causing this accident, was designed

or manufactured in Mexico. The individuals who are responsible

for the design and manufacture of this aircraft and the component

parts that are suspected of playing a part in causing this accident

are in the United States, not Mexico.

Additionally, evidence presented to the District Court

established the accident aircraft and the aircraft components in

issue in this case were designed in the United States pursuant to

United States laws, standards and regulations. The individuals

that are familiar with the design standards, laws, and regulations

applicable to this U.S. designed aircraft are in the United States

BEE QR RTALLL LEE

s

7

and are employed by U.S. companies such as Boeing, as well as

U.S. governmental agencies such as the U.S. Federal Aviation

Administration.

Most of the evidence regarding the actionable negligence

and product deficiencies with regard to the crash of Mexicana

Flight 940 occurred in the United States. This includes not only

the design of the aircraft and aircraft components by Boeing and

other U.S. sub-component manufacturers, but also the operation,

inspection, and maintenance of the accident aircraft that occurred

in the United States. Mexicana operated the accident aircraft

extensively in the United States. As was previously mentioned,

the day before this accident, the aircraft was being serviced and

operated by Mexicana out of Chicago. Many sources of proof

regarding the actionable negligence and product deficiencies of

Defendants which are essential to the present cause of action are

located in the United States, not Mexico.

Additionally, U.S. technical and investigative experts and

facilities in the U.S. were extensively utilized in the accident

investigation. The U.S. National Transportation Safety Board

participated in the on-scene investigation. Aircraft parts suspected

of causing the crash were sent to the United States for analysis.

These parts were examined and inspected by U.S. investigative

and technical personnel employed by U.S. companies like Boeing

and Goodrich at U.S. facilities. U.S. investigative and technical

personnel, who actually examined component parts suspected of

causing the crash, are available in the U.S., not Mexico. The

evidence establishes that the private interest factors dictates that

the case be maintained before a United States forum.

8

With regard to the public interest factor, this country's

public interest in this accident was recognized shortly after this

accident occurred. The U.S. Federal Aviation Administration

issued a Notice of Proposed Rulemaking proposing the

consideration of an airworthiness directive. The Notice of

Proposed Rulemaking issued by FAA prepared an order requiring

that tires of approximately 3,200 heavy jet transport aircraft in the

United States fleet be fitted with nitrogen instead of air. A direct

reason for the order was the crash of Mexicana Flight 940. This

action recognizes the public interest of this country in a U.S.

designed and manufactured product used extensively in air

transportation in this country. Those individuals, who issued the

Notice of Proposed Rulemaking, considered the responses to the

Notice, and made determinations regarding the Notice, are

available as witnesses in the United States, not Mexico.

Additionally, Plaintiffs have agreed to bring any Plaintiff or

member of a Plaintiffs decedent's family residing in Mexico to the

United States for deposition and trial without expense to the

Defendants.

A review of the factors or considerations as set out in the

Gulf Oil and Piper cases establishes that Defendants in this matter

have failed to sustain their burden of proof under the facts of this

case.

Ill.

The Defendants failed to sustain their burden of proving

that Mexico as an alternative forum was both available and

adequate. In a forum non conveniens analysis, it must first be

decided whether the alternative forum is both available and

adequate. The Court of Appeals opinion is devoid of any

@SBEBRURREREREAaESe

9

discussion as to whether Mexico is an available and adequate

forum. The alternate forum is available when the entire case and

parties can come within the jurisdiction of that forum. The

alternate forum is adequate when the parties will not be deprived

of all remedies or be treated unfairly. See /n Re Air Crash

Disaster Near New Orleans, La., supra at 1165.

When the District Court allowed Defendants’ motion to

dismiss the present case based upon the doctrine of forum non

conveniens, it conditioned the dismissal. Among the conditions

of dismissal were requirements that Boeing submit to service of

process and jurisdiction in the appropriate court in Mexico. The

Defendant must establish the existence of at least two forums in

which all the Defendants are amenable to process. /n Re Air

Crash Disaster Near New Orleans, La., at 1164. The Defendant

must establish that the foreign court wili take jurisdiction of the

transferred case. Syndicate 420 at Lloyd's London v. Early

American Insurance Co., 796 F.2d 821 (Sth Cir. 1986). The

proper analysis requires that the District Court focus on the

foreign court's willingness to take jurisdiction of the case and not

the Defendant's willingness to submit to the foreign court's

jurisdiction. Boeing provided no proof to the District Court of a

Mexican court's willingness to take jurisdiction of a case

involving Boeing. Failure to prove this condition of available

jurisdiction in the foreign forum makes the remaining conditions

of dismissal meaningless. See Appendix A.

It must also be established that the alternative forum is

adequate. The finding by the District Court that the Mexican

forum is adequate is clearly erroneous. No adequate forum exists

where it appears that the Plaintiffs would "be deprived of any

10

remedy or will be treated unfairly" in the alternative forum. See

Syndicate 420 at 829 quoting Piper at 255. Mexico does not grant

a cause of action to relatives of the victims of the air crash against

the manufacturer. The cause of action would be applicable only

against Defendant Mexicana. Additionally, due to the codified

nature of Mexican damage law, any recovery by the Plaintiffs

would be so unjust as to amount to the Plaintiffs being treated

unfairly. The Defendants failed to establish that the Mexican

forum was either an available or adequate forum.

CONCLUSION

For the reasons set forth, it is respectfully submitted that

this Petition for Certiorari be granted.

Respectfully submitted,

GEORGE M. FLEMING

RALPH RAY GREGORY, JR.

LAW OFFICES OF

GEORGE M. FLEMING, P.C.

1330 Post Oak Boulevard

Suite 303

Houston, Texas 77056

(713)621-7944

Attorney for Petitioner

DAVID RODRIQUEZ DIAZ, et al

BSR REREREREEBERBEER EES

APPENDIX

A-1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

DAVID RODRIGUEZ DIAZ, ET AL *

—

Piaintiffs *

—

VS. *

* SA-86-CA- 1065

MEXICANA de AVION, S.A., and *

BOEING COMMERCIAL AIRPLANE *

COMPANY, *

-

Defendants *

ORDER

This lawsuit arises out of the crash of Mexicana Airlines

Flight 940 on March 31, 1986 in the mountains west of Mexico

City, Mexico. The case was originally filed in Texas District

Court by eight of the survivors and estate representatives of

persons killed in the crash. Mexicana filed its petition for removal

to this court pursuant to the Foreign Sovereign Immunities Act,

Title 28 U.S.C. Section 1602 et seq. Such a removal is effective

as to Boeing. In any event, Boeing has asserted an independent

jurisdictional basis under Title 28 U.S.C. Section 1332(a)(2).

The FSIA provides that an agency or instrumentality of a foreign

state, such as Mexicana, is immune from the jurisdiction of the

courts of the United States unless one or more of the general

exceptions to jurisdictional immunity applies. Mexicana has filed

a motion to dismiss for lack of jurisdiction, claiming that none of

A-2

the exceptions in section 1605 applies. Boeing has filed a motion

to dismiss for failure to state a claim and a motion to dismiss

based on the doctrine of forum non conveniens. While generally

a federal court must first determine the existence vel non of

jurisdiction before analyzing the forum non conveniens issue,

where the jurisdictional issue affects less than all defendants and

resolution of the forum non conveniens issue is equally applicable

to all defendants, the latter issue can be examined first. Syndicate

420 at Lloyd's London v. Early American Insurance Company,

796 F.2d 821, 826 n.8 (Sth Cir. 1986). This Court has examined

the jurisdictional issue and is of the opinion that jurisdiction does

exist. However, because the Court believes that this forum is not

appropriate, which determination is dispositive of all parties and

all issues, a written order containing the reasoning for this Court's

belief that jurisdiction exists shall not be entered.

Also pending before the Court is plaintiffs’ motion for

leave to file their first amended complaint. The original petition

was filed in state court by eight citizens of Mexico, stating causes

of action against both defendants for negligence and products

liability. In their amended complaint, plaintiffs drop their

allegation of negligence as to Boeing and their cause of action for

strict liability against Mexicana. They also seek to add a claim for

the deaths in the crash of four United States citizens in the same

family. Rule 15(a) of the Federal Rules of Civil Procedure

provide that leave to file an amended complaint shall be freely

given when justice so requires. The Court will, therefore, grant

plaintiffs’ motion.

The first step in an analysis of the forum non conveniens

issue is to determine whether there exists an adequate and

available alternative forum for resolution of the dispute.

ee

A-3

Syndicate 420, at 828. The defendant has the burden of proving

that an adequate and available alternative forum exists.

Perusahaan Umum Listrick Negara v. M/V Tel Aviv, 711 F.2d

1231, 1238 (Sth Cir. 1983). Boeing contends that Mexico

provides such a forum. In response, plaintiffs claim that because

of the relationship between Mexicana and Mexico, which owns

the majority of Mexicana shares, trial there will be delayed for

years. Plaintiffs provide no support for this allegation. They also

contend that it will be difficult to obtain jurisdiction over Boeing

in Mexico. Boeing has agreed that this Court may condition its

dismissal on defendants’ agreement to submit themselves to the

jurisdiction of the Mexican courts. Finally, plaintiffs state that

since acts in the United States give rise to their claims of

negligence and products liability, that proof for these claims is in

the United States. Since the Court intends to further condition

dismissal upon defendants’ agreement to make all relevant

witnesses available in the Mexican proceeding or for deposition,

and to make available any documents within their control, this

objection is without merit. Additionally, as will be noted more

fully below, any acts of negligence which contributed to the crash

of Flight 940 occurred in Mexico as well as the United States.

Though not cited by plaintiffs as a reason to oppose a

Mexican forum, the Court feels it is appropriate to address the

issue of the law to be applied in this case. Application of the

Texas conflict of laws principals indicates that Mexican law

should apply to this case. In all conflicts cases sounding in tort,

the Texas courts apply the law of the forum with the most

significant relationship to the occurrence and the parties.

Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979). Duncan

v. Cessna Aircraft Company, 665 S.W.2d 414, 421 (Tex. 1984).

A-4

The most significant relationship test is applied to wrongful death

cases. Total Oil Field Services, Inc. v. Garcia, 711 S.W.2d 237

(Tex. 1986). The relevant contacts to be considered in

determining which forum has the most significant relationship are:

(1) the place where the injury occurred, (2) the place where the

conduct causing the injury occurred, (3) the domicile, residence,

nationality, place of incorporation and place of business of the

parties, and (4) the place where the relationship between the

parties is centered. The injury in the case at bar occurred in

Mexico. In their amended complaint, plaintiffs allege that

Mexicana was negligent in the manner in which it inspected,

operated, maintained and serviced the aircraft in the United States

and Mexico. While plaintiffs do not allege with any specificity

what caused the accident or what negligent acts Mexicana

committed in the United States, it appears from ihe evidence

attached to the pleadings that the crash was caused by the

explosion of a tire shortly after take-off. Apparently, drag on the

brakes on one set of landing gear during take-off caused the tire,

which was filled with air, to overheat and explode. The airplane

had been in Chicago, Illinois the day before the accident. While

Mexicana may have been negligent in failing to properly inspect,

operate, maintain and service the aircraft in the United States, the

more immediate negligence, if any, arose from its failure to

properly inspect, operate, maintain and service the aircraft in

Mexico City. Therefore, while, as to the products liability claim

the conduct causing the injury occurred in the United States where

the plane was designed and manufactured, any acts of negligence

by Mexicana occurred in Mexico as well as the United States.

The domicile and residence of the original plaintiffs is in Mexico;

they are Mexican citizens. Mexicana is incorporated in Mexico

SEER ERE RE RRR

A-5

and has its principal place of business there. The representatives

of the U.S. family which died in the crash are U.S. citizens, and

reside here. The fact that other U.S. citizens were on the airplane

is irrelevant. Boeing is incorporated in the United States and does

business here, as does Mexicana. The relationship between all the

plaintiffs and the defendants is centered in Mexico. All of the

plaintiffs’ decedents purchased their tickets in Mexico City for the

flight to Puerto Vallarta, Mexico. While plaintiffs refer to the

United States Permit to Foreign Air Carrier issued to Mexicana, it

is Clear that permit is unnecessary for flights wholly within

Mexico and is no evidence of U.S. involvement in this flight.

Consideration of these factors indicates that Mexico has the most

significant relationship to the occurrence and the parties, and that

Mexican law should apply. The Texas Supreme Court in

Gutierrez v. Collins stated that while the laws of Texas and

Mexico differ in several aspects, these differences do not render

Mexican laws violative of public policy. There is a presumption

that the substantive law of a foreign forum is adequate. Vaz

Borratho v. Keydril Co., 696 F.2d 379, 392 (Sth Cir. 1983).

Even if Mexican law is less favorable, the factor does not

warrant retention of this case. In Piper Aircraft Company v.

Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981),

the United States Supreme Court held that plaintiffs may not

defeat a motion to dismiss on the ground of forum non

conveniens merely by showing that the substantive law that would

be applied in the alternative forum is less favorable to the plaintiffs

than that of the present forum. /d. at 247, 102 S.Ct. at 261. The

possibility of a change in substantive law should ordinarily not be

given conclusive or even substantial weight in the forum non

conveniens inquiry. /bid. Syndicate 420, at 829. In Piper, the

A-6

Supreme Court determined that the unavailability of strict liability

as a theory of recovery was insufficient to render a Scottish forum

inadequate for the resolution of a products liability action.

In the case at bar, plaintiffs have not coniended that

Mexican laws make a Mexican forum inadequate. There is

certainly no indication that the remedy provided by the Mexican

forum would be so clearly inadequate or unsatisfactory that it

would be no remedy at all. See, Piper, at 254, 102 S.Ct. at 265.

Even if U.S. law were to apply to some aspect of this case, that

factor would not require that the case be retained in the U.S. when

the forum non conveniens analysis demonstrates, as it does here,

that the U.S. is an inconvenient forum. Ali v. Offshore Co., 753

F.2d 1327, 1333 (Sth Cir. 1985). This Court concludes,

therefore, that Mexicana is an adequate forum for the resolution of

this case.

In addition to being adequate, the forum must also be

available. The defendant's submission to the jurisdiction of an

alternative forum renders that forum available for purposes of the

forum non conveniens analysis. Syndicate 420, at 830. As

indicated above, Boeing is willing to submit to the jurisdiction of

the Mexican courts. Dismissal herein will be conditioned upon

submission to service of process and jurisdiction in the

appropriate Mexican court. It will also be conditioned upon

defendants’ waiver of any statute of limitations defense that has

inatured since the commencement of this action. Plaintiffs have

offered nothing to indicate that a Mexican forum is unavailable.

Having determined that an adequate, available forum

exists, the next step is to proceed to a balancing of the public and

private interest factors. Syndicate 420, at 828. These factors

were first set forth in Gulf Oil Corporation vs. Gilbert, 330 U.S.

al

ZEEREERERRREBELE

A-7

561, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Unless the balance of

these factors is strongly in favor of the defendant, the plaintiff's

choice of forum should rarely be disturbed. /d. at 508, 67 S.Ct.

at 843. This presumption applies with less force, however, when

the plaintiffs are foreign. Piper, at 225, 102 S.Ct. at 266. Here,

all of the original plaintiffs are residents and citizens of Mexico.

Although there is now a U.S. citizen plaintiff, this addition was

made only after it was pointed out in Mexicana’'s motion to

dismiss for lack of jurisdiction that this case has very little nexus

with the United States. Because all of the plaintiffs who

originally chose this forum are Mexican citizens, the Court

believes that it is appropriate to afford less weight to their choice

of forum.

Important private interest considerations are: (1) the

relative ease to access to sources of proof, (2) the availability of

compulsory process for attendance of unwilling, and the cost of

obtaining attendance of willing, witnesses, (3) the possibility of

view of the premises, if view would be appropriate to the action,

and (4) all other practical problems that make trial of a case easy,

expeditious and inexpensive. Gulf Oil, at 508, 67 S.Ct. at 843.

The Court believes that access to the sources of proof in this case

are more readily available in Mexico than in the United States.

The investigation of the crash is being conducted by the Direccion

General de Aeronautica Civil (DGAC), a government agency of

Mexico headquartered in Mexico City. It will issue a public report

when its investigation is completed. While investigators from the

National Transportation Safety Board visited the crash scene, they

did not conduct any substantial investigation and will not issue a

report. The investigation of a major aviation disaster, such as the

crash of Mexicana Flight 940 involves the analysis of numerous

A-8

items of information. These items include statements obtained

from the survivors and eyewitnesses, if any, and air traffic

controllers; photographs of the crash site, wreckage and aircraft

components; physical evidence recovered from the crash site;

information from the cockpit voice recorder and the flight data

recorder; the results of tests performed on aircraft components; the

tapes and transcripis of communications between the aircraft and

air traffic controllers; radar information on the location of the

aircraft at various times; and manuals and maintenance, training,

and other records from the aircraft operator. All of this evidence

is or will be in Mexico. While the landing gear assembly was

examined by B. F. Goodrich in the United States and while

Boeing also examined certain pieces of the aircraft, these parts

will be returned to the DGAC and any reports stemming from

these examinations will be incorporated in the DGAC

investigation. It appears that the drag in the brakes could have

been related to a leak in the hydraulic unit in the system. This unit

had recently been installed in Mexico City during an overhaul of

the aircraft. All of the witnesses and records relating to the

maintenance and operation of the aircraft are in Mexico where the

routine maintenance is performed. Eyewitnesses to the crash are

also located in Mexico. The limitation of this Court's subpoena

power makes it unlikely that this Court could compel the

attendance of any of the witnesses from Mexico at the tial of this

case here. Defendant has submitted evidence that any attempt to

obtain discovery in Mexico in aid of the litigation here would be

very difficult and time consuming. Though Boeing and Mexicana

may have witnesses in the United States who are necessary for

trial, the conditioning of this dismissal upon defendants’

agreement to make these witnesses available in the Mexican

~BRBRERERRRERERE EE

A-9

proceeding eliminates any problem of access plaintiffs might have

to these sources of proof. In any event, the fact that the airplane

was designed and manufactured here does not mandate that the

trial take place in the United States. Piper, at 257-258, 102 S.Ct.

at 267. While it does not appear that it will be necessary to view

the crash site, if that does become necessary, it can obviously

only take place in Mexico. In addition to the fact that most of the

proof regarding liability exists in Mexico, since most of the

plaintiffs are Mexican residents and citizens, proof of damages is

located there as well.

Factors of public interest also bear on the application of

the forum non conveniens doctrine. Gulf Oil, at 508, 67 S.Ct. at

843. The administrative difficulties flowing from court

congestion are substantial. This Court has a responsibility of

50% of the criminal cases filed in the San Antonio Division of the

Western District of Texas, not to mention its share of the civil

docket. Boeing has suggested that the trial of this case would be

lengthy. Such a burden ought not to be imposed upon this Court

when this community has virtually no relation to this litigation.

Ibid. That there is a local interest in having localized

controversies decided at home weighs in favor of dismissal. Most

of the plaintiffs are Mexican citizens, Mexicana Airlines is

incorporated in Mexico, and the crash occurred in Mexico See,

Piper, at 260, 102 S.Ct. at 268. As noted above, it appears that

Mexican law should be applied to this lawsuit. It is more

appropriate for a Mexican court to apply that law than for this

Court to do so.

Having determined that an adequate and available

alternative forum exists, and having weighed the public and

private interests concerned, this Court is of the opinion that

A-10

dismissal based on forum non conveniens is appropriate. This

case involves the crash of a Mexican airline on a flight between

two points within Mexico and involving mostly Mexican

plaintiffs. Although there is a U.S. plaintiff, this Court retains its

discretion to decline, after considering the Gulf Oil factors, to hear

this action though the alternative forum is a Mexican court.

Pacific Employers Insurance Company v. M/V Captain W. D.

Cargill, 751 F.2d 801, 805 (Sth Cir. 1985). Most of the

witnesses and evidence pertaining to the crash are located in

Mexico, and any evidence in the United States can be provided to

the Mexican court. Most of the discussion above has centered on

the question of whether a United States or a Mexican forum is

appropriate. What has only been briefly mentioned above and

which is conspicuous by its absence, is the connection of this case

to Texas. Other than the fact that Mexicana does business here

and the fact that plaintiffs’ attorneys have their offices here, this

lawsuit has no nexus to this forum. Dismissal as to both

defendants is appropriate.

Dismissal of this case is premised upon the following

conditions: (1) that defendants submit to service of process and

jurisdiction in the appropriate court in Mexico, (2) that defendants

formally waive in the Mexican proceeding any statute of

limitations defense that has matured since the commencement of

this action, (3) that defendants formally agree in the Mexican

forum to make available in the Mexican proceeding all relevant

witnesses, or in lieu thereof, to schedule depositions at a

reasonable time and place, and to make available any documents

within their control, and that any depositions, answers to

interrogatories, request for admissions and the like filed herein

may be used in the foreign proceeding to the same extent as if they

‘~@B eaeaBaBRBRaBaoBREHEE EE =.

si q

A-11

had originated therein, and (4) that defendants formally agree in

the Mexican forum to satisfy any final judgment. Should

defendants fail to meet any of these conditions, this Court will

resume jurisdiction over this case. Ali, at 1334 n.16.

It is, therefore, ORDERED that plaintiffs’ motion for leave

to amend their complaint be, and it hereby is, GRANTED.

It is further ORDERED that Boeing's motion to dismiss

be, and it hereby is, GRANTED.

SIGNED this 23rd day of January, 1987.

/s/

H. F. GARCIA

UNITED STATES DISTRICT JUDGE

A-12

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

DAVID RODRIGUEZ DIAZ, ET AL *

~

Plaintiffs *

*

VS. °

* SA-86-CA-1065

MEXICANA de AVION, S.A., and *

BOEING COMMERCIAL AIRPLANE *

COMPANY, *

*

i Defendants °

JUDGMENT

In accordance with the Order being entered

contemporaneously herewith;

It is ORDERED that the above-entitled and numbered

cause be, and it hereby is, DISMISSED without prejudice. All

costs are taxed against plaintiffs.

SIGNED this 23rd day of January, 1987.

/s/

H. F. GARCIA

UNITED STATES DISTRICT JUDGE

~ER RE RERE RE RE EE ES.

|

ee ee Oe OO ee OOD ODT COTO iTESse,”-l a

A-13

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-5542

Summary Calendar

DAVID RODRIGUEZ, ET AL.

Plaintiffs-Appellants,

versus

MEXICAN DEAVION, S.A., and

BOEING COMERCIAL AIRPLANE COMPANY,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Texas

(SA-86-CA- 1065)

(March 22, 1988)

Before REAVLEY, KING and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published.

A-14

The plaintiff class in this case appeals the district court's

dismissal based on forum non conveniens grounds. We hold the

dismissal within the district court's discretion and affirm.

I.

In 1986, a Boeing 727 airliner owned and operated by

Compania Mexicana de Aviacion, S.A., de C.V. ("Mexicana")

crashed in Mexico while en route from Mexico City to Puerto

Vallarta. This lawsuit was originally filed in state court in Bexar

County, Texas, by the personal representatives of sixteen

Mexican nationals killed in the crash. The case was removed to

federal court by Mexicana pursuant to the Foreign Sovereign

Immunities Act. The plaintiffs thereafter amended their complaint

to join as plaintiffs the personal representatives of four decedents

alleged to be citizens of the United States.

After Boeing filed a motion to dismiss on the ground of

forum non conveniens, the district court granted the motion,

making the dismissal subject to the following conditions: (a) that

the defendants submit to service of process and jurisdiction in the

appropriate court in Mexico; (2) that the defendants formally

waive in the Mexican proceeding any statute of limitations defense

that had matured since the commencement of this action; (3) that

the defendants make available all relevant witnesses and

documents; and (4) that the defendants agree to satisfy any

judgment rendered by the Mexican court. The defendants agreed

to these conditions.

I]

A.

A forum non conveniens determination is a matter that

traditionally has been in the province of the trial court's discretion.

BERBEBERERERRERE EE SG.

A-15

In Piper Aircraft Co, v, Reyno, 454 U.S. 235, 102 S.Ct. 252, 70

L.Ed.2d 419(1981), the Supreme Court delineated the standard of

review to be applied by the courts of appeals:

The forum non conveniens determination is

committed to the sound discretion of the trial court.

It may be reversed only when there has been a

clear abuse of discretion; where the court has

considered all relevant public and private interest

factors, and where its balancing of these factors is

reasonable, its decision deserves substantial

deference.

Id, at 257.

Although the plaintiff's choice of forum should not

ordinarily be disturbed, the doctrine of forum non conveniens

permits a court to resist imposition upon its jurisdiction even

when subject matter jurisdiction is conferred by statute or personal

jurisdiction is conferred by minimum contacts or consent. See

Gulf Oil Corp, v, Gilbert, 330 U.S. 501, 508, 67 S.C. 839, 91

L.Ed. 1055 (1947). In determining whether a particular forum is

appropriate, the court must balance the private interests of the

litigants as well as the public interests of the chosen forum. Id,

The private interests to be considered include: (i) relative

ease of access to sources of proof; (ii) availability of compulsory

process for attendance of unwilling, and the cost of obtaining

attendance of willing, witnesses; (iii) possibility of a view of

premises, if a view could be appropriate to the action; (iv) all other

practical problems that make trial of a case easy, expeditious, and

inexpensive; and (v) enforceability of a judgment if one is

obtained. Id,

The public interest factors include: (i) the administrative

difficulties flowing from court congestion; (ii) the local interest in

having localized controversies resolved at home; (iii) the interest

A-16

in trying a case in a forum that is fami!iar with the law that

governs the action; (iv) the avoidance of unnecessary problems

and conflicts of law, or an application of foreign law; and (v) the

unfairness of burdening citizens in an unrelated forum with jury

duty. Id, at 510.

An evaluation of the private and public interest facts set

forth in Gilbert demonstrate that dismissal of the complaint in this

case on forum non conveniens grounds was within the district

court's discretion. As that court pointed out, the relevant evidence

concerning potential liability is located predominately in Mexico.

Among the significant sources of proof located in Mexico is the

work product of the Mexican accident investigation, including the

records of the accident aircraft, statements of eye-witnesses and

air traffic controllers, the wreckage and other physical evidence

from the crash site, results of tests performed on aircraft

components, and the records relating to communications between

the Mexicana flight crew and air traffic controllers. Additionally,

since most of the plaintiffs are Mexican citizens, evidence and

witnesses concerning damage issues also will be located in

Mexico. The district court correctly focused on the quantity and

type of evidence that will be relevant to the determination of fault

and found that that the majority of relevant evidence concerning

potential liability is located in Mexico.!

'Plaintiffs argue that evidence with respect to the manufacture and

design of the Boeing aircraft is present in the United States. This

factor alone does not compel retention of the case in the United

States. See Nai-Chao v. Boeing Co., 555 F.Supp. 9, 17-18

(N.D. Cal. 1982), affd 708 F.2d 1406 (9th Cir.), cert, denied,

464 U.S. 1017 (1983). See also Jennings v. Boeing Co. 660

F.Supp. 796, 805 (E.D. Pa. 1987).

BEBRBESOSERER EES =

A-17

Moreover, proceeding with the litigation in Texas would

unnecessarily burden the parties. Witnesses located in Mexico are

outside the jurisdiction of the Texas federal district court and

could not be compelled to testify. Even if witnesses were willing

to testify, it would be expensive to transport the witnesses to

Texas.

The plaintiffs argue that because their class includes the

representatives of three United States citizens and one United

States resident, their choice of the United States forum should

prevail. We note, however, that the presence of a United States

citizen as a plaintiff is not dispositive. Piper Aircraft Co, v.

Reyno, 454 U.S. 235, 255 n.23 (1981). The district court must,

and did, weigh all the factors, giving somewhat more weight to a

citizen's or resident's choice of forum than to that of a foreign

plaintiff. Here, the United States citizens were far outnumbered

in the class by Mexican nationals. Furthermore, they constituted

one family who had moved to the United States from Mexico, and

still maintained strong ties there. They were spending an

extended period of time in Mexico and had bought their tickets for

this internal Mexican flight in Mexico. Furthermore, their

representatives were added as plaintiffs after the choice of forum

had been made. Thus, we do not find that the presence in this

lawsuit outweighs the district court's careful consideration of all

the public and private interests at stake.

The Gilbert "public interests” factors also point to Mexico

as the convenient forum. The district court noted that its docket is

congested and retention of the lawsuit would cause administrative

difficulty. This action chiefly involves Mexican plaintiffs and

arises from the crash of a Mexican airliner in Mexico during an

intra-Mexico flight. Mexico has a “paramount interest” in the

A-18

outcome fo this lawsuit. Additionally, the fact that Mexican law

should govern this controversy strongly supports the district

court's dismissal on forum non conveniens grounds.?

The district court did not abuse its discretion in holding

that when the practical problems and evidence in this case were

considered, the case could most expeditiously and inexpensively

be tried in Mexico.*

B.

The plaintiffs claim that the district court erred in

dismissing this case on forum non conveniens grounds without

allowing discovery. The district court convincingly and

succinctly rejected the plaintiffs’ denial of discovery claim based

on a careful review of the record.

The record reveals that the motion to dismiss [on

forum non conveniens] grounds was filed

November 12, 1986. Shortly thereafter, plaintiffs

requested leave to submit in excess of twenty

interrogatories to defendants but did not assert the

pending motion as a basis for the additional

discovery. On December Sth, Boeing filed a

motion to stay discovery. The motion sought a

“Following the choice-of-law principles of the forum state, Texas,

this court is required to apply the “significant relationship” test.

, 665 S.W.2d 414, 421 (Tex.

1984); Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979).

See also Kucel v, Walter E. Heller & Co,, 813 F.2d 67, 73 (Sth

Cir. 1987). The district court properly concluded that Mexico has

the most significant relationship to the occurrence in question and

that Mexican law governs this case.

‘The possibility that Mexican law may be less favorable than

American law to plaintiffs, as the plaintiffs contend, is not a

reason for denying a motion to dismiss on forum non conveniens

grounds. Piper Aircraft, 454 U.S. at 250;

Lloyd's London v, Early American Ins, Co,, 796 F.2d 821, 829

(Sth Cir. 1986).

BEBaSBRERBSREHEEREEREEEEE

A-19

restraint of discovery as to plaintiffs’ substantive

claims but not as to the forum non conveniens

issue. In fact, counsel for Boeing offered to

arrange the deposition of a witness on that issue.

Plaintiffs’ memorandum in opposition to Boeing's

motion to dismiss, filed almost two months after

the motions and well beyond the ten day limit set

in the Local Rules, made no mention of the need

for discovery. Plaintiffs have never moved to

compel the answers to any interrogatories or the

production of any documents related to the forum

non conveniens issue. The complaint regarding the

denial of discovery is without merit.

The Second Circuit recently disposed of a similar

contention in a forum non conveniens context. In Transunion

Corp, v. Pepsico, 811 F.2d 127 (2d Cir. 1987), the plaintiff

argued that the district court abused its discretion in granting a

protective order to prevent further discovery prior to a decision on

the defendant's motion to dismiss on forum non conveniens

founds. The Second Circuit held that "[m]otions to dismiss for

forum non conveniens may be decided on the basis of affidavits.”

Id, at 130.

All the information necessary for the district court to

decide the forum non conveniens motion was before the court in

the form of affidavits. Requiring additional extensive discovery

would defeat the purpose of a motion to dismiss on forum non

conveniens grounds. Piper Aircraft, 454 F.2d 1147 at 828; Inre

Air Crash Disaster Near New Orleans, La,, 821 F.2d 1147, 1164

(Sth Cir. 1987). Moreover, the plaintiffs have failed to identify

what information they would have developed through discovery

that could have significantly affected the private and public

interest analysis.

A-20

i.

The plaintiffs state that in a case arising from the same air

crash as that in this case, Central District of California in Penasco

y, Compania Mexicana de Aviacion, S.A,, (C.D. Calif. No. CV-

87-5265 R), the district court denied the defendants’ motion to

dismiss on forum non conveniens grounds. The plaintiffs

therefore seek in the alternative a reversal with instructions that the

San Antonio district court transfer the San Antonio cases to Los

Angeles pursuant to 28 U.S.C. § 1401(a). We do not find the

California proceedings relevant to our decision whether the Texas

district court abused its discretion in dismissing this case on

forum non conveniens grounds. The point of leaving some

discretion to the trial judge is that he has a range of options and on

review we, as a court of appeals, evaluate whether the decision

was reasoned within that range. Furthermore, we note that the

California case had considerabie differences from ours, including

the fact that Boeing was dismissed as a defendant from that case.

Finally, if we were to consider other district court opinions arising

from the same crash, we could just as well look to Carlos Penasco

Garcia v. Mexicana de Avio, 87 C 3920 (N.D. Ill. Sept. 23,

1987), which the district court dismissed on forum non

conveniens grounds referring to "the well reasoned opinion" in

this case.

II

For the above reasons, the judgment of the district court is

AFFIRMED.

A-21

APPENDIX C

Issued by

Order 78-6-121

UNITED STATES OF AMERICA

CIVIL AERONAUTICS BOARD

WASHINGTON, D.C.

PERMIT TO FOREIGN AIR CARRIER

(as amended)

COMPANIA MEXICANA DE AVIACION, S.A.

is authorized, subject to the following provisions, the provisions

of the Federal Aviation Act of 1958, and the orders, rules, and

regulations issued under it, to engage in foreign air transportation

of persons, property, and mail, as follows:

(1)

(2)

(3)

(4)

Between the coterminal points Mexico City,

Acapulco, Guadalajara, Puerto Vallarta, Mazatlan,

Mexicali, and Hermosillo, Mexico, and the

coterminal points Los Angeles, San Francisco, and

Oakland, California, and Seattle, Washington;

Between the coterminal points Mexico City,

Guadalajara, Cuidad Juarez, Acapulco,

Zihuatanejo, Manzanillo, Puerto Vallarta,

Mazatlan, San Jose del Cabo, La Paz, and Loreto,

Mexico, and the terminal point Denver, Colorado;

Between the coterminal points Mexico City,

Acapulco, Guadalajara, Zihuatanejo, Manzanillo,

Puerto Vallarta, Mazatlan, San jose del Cabo, La

Paz, Loreto, Oaxaca, Monterrey, and Tampico,

Mexico, and the coterminal points Harlingen, San

Antonio, and Dallas/Fort Worth, Texas, and

Memphis, Tennessee;

Between the coterminal points Guadalajara,

Manzanillo, Puerto Vallarta, Mazatlan, San Jose

del Cabo, La Paz, and Loreto, Mexico, and the

terminal point Chicago, Illinois;

(5S)

(6)

(7)

(8)

(9)

(10)

(11)

(12)

(13)

A-22

Between the coterminal points Mexico City,

Acapulco, Oaxaca, Zihuatanejo, and Monterrey,

Mexico, and the coterminal points Kansas City and

St. Louis, Missouri, Chicago, Illinois, and

Minneapolis/St. Paul, Minnesota, and beyond any

of the U.S. coterminals to Toronto and Montreal,

Canada;

Between the coterminal points Mexico City,

Acapuico, Guadalajara, Zihuatanejo, Manzanillo,

Puerto Vallarta, Mazatlan, San Jose del Cabo, La

Paz, and Loreto, Mexico, and the terminal point

Atlanta, Georgia;

Between the coterminal points Mexico City,

Acapulco, Guadalajara, and Monterrey, Mexico,

and the coterminal points Detroit, Michigan,

Cleveland, Ohio, Washington, D.C./Baltimore,

Maryland, and Philadelphia, Pennsylvania, and

beyond any of the U.S. coterminals to Toronto

and Montreal, Canada;

Between the coterminal points Mexico City,

Merida, Cozumel, and Punta Cancun, Mexico, and

the terminal point San Juan, Puerto Rico;

Between the coterminal points Cozumel, and Punta

Cancun, Mexico, and the terminal point Miami,

Flonda;

Between the coterminal points Mexico City,

Merida, Cozumel, and Punta Cancun, Mexico, and

the terminal point Tampa, Florida;

Between the coterminal points Merida, Cozumel,

and Punta Cancun, Mexico, and the terminal point

Dalias/Fort Worth, Texas;

Between the coterminal points Merida, Cozumel,

and Punta Cancun, Mexico, and the coterminal

points Chicago, Illinois, and Minneapolis/St. Paul,

Minnesota; and

Between the coterminal poinis Merida, Cozumel,

and Punta Cancun, Mexico, and the coterminal

A-23

points Detroit, Michigan, Cleveland, Ohio, and

Philadelphia, Pennsylvania.

The holder shall be authorized to engage in charter trips in

foreign air transportation, subject to the terms, conditions, and

limitations prescribed by Part 212 of the Board's Economic

Regulations.

This permit shall be subject to the condition that on routes

5 and 7 any flight which serves a point beyond the United States

shall originate or terminate at a point in Mexico.

The holder shall conform to the airworthiness and airman

competency requirements prescribed by the Government of

Mexico for Mexican international air service.

This permit shall be subject to all applicable provisions of

any treaty, convention, or agreement affecting international air

transportation now in effect, or that may become effective during

the period this permit remains in effect, to which the United States

and Mexico shall be parties.

The holder shall keep on deposit with the Board a signed

counterpart of CAB Agreement 18900, an agreement relating to

liability limitations of the Warsaw Convention and the Hague

Protocol approved by Board Order E-23680, May 13, 1966, and

a signed counterpart of any amendment or amendments to such

agreement which may be approved by the Board and to which the

holder becomes a party.

The holder (1) shall not provide foreign air transportation

under this permit unless there is in effect third-party liability

insurance in the amount of $1,000,000 or more to meet potential

liability claims which may arise in connection with its operations

under this permit, and unless there is on file with the Docket

Section of the Board a statement showing the name and address of

the insurance carrier and the amounts of liability limits of the

third-party liability insurance provided, and (2) shall not provide

foreign air transportation of persons unless there is in effect

liability insurance sufficient to cover the obligations assumed in

CAB Agreement 18900, and unless there is on file with the

Docket Section of the Board a statement showing the name and

address of the insurance carrier and the amounts of liability limits

of the passenger liability insurance provided. Upon request the

Board may authorize the holder to supply the name and address of

—A-24

an insurance syndicate in lieu of the names and addresses of the

member insurers.

The initial tariff filed by the holder shall not set forth rates,

fares and charges lower than those that may be in effect for any

U.S. air carrier in the same foreign air transportation; However,

this limitation shall not apply to a tariff filed after the initial tariff

regardless of whether this subsequent tariff is effective before or

after the introduction of the authorized service.

By accepting this permit the holder waives any right it may

possess to assert any defense of sovereign immunity from suit or

any action or proceeding instituted against the holder of any court

or other tribunal in the United States (or its territories or other

possessions) based upon any claim arising out of operations by

the holder under this permit.

The exercise of the privileges granted here shall be subject

to such other reasonable terms, conditions, and limitations

required by the public interest as may from time to time be

prescribed by the Board.

This permit shall be effective on June 19, 1978. Unless

otherwise terminated at an earlier date pursuant to the terms of any

applicable treaty, convention, or agreement, this permit shall

terminate (1) upon the effective date of any treaty, convention, or

agreement, or amendment thereto, which shall have the effect of

eliminating the routes here authorized from the routes which may

be operated by Airlines designated by the Government of Mexico

(or in the event of the elimination of any part of a route or routes

here authorized, the authority granted shall terminate to the extent

of such elimination), or (2) upon the effective date of any permit

granted by the Board to any other carrier designated by the

Government of Mexico in lieu of the holder hereof, or (3) upon

the termination or expiration of the Air Transport Services

Agreement between the Government of the United States and the

Government of Mexico, effective August 15, 1960, as amended

and extended: Provided, however, That if prior to the occurrence

of the event specified in clause (3) of this paragraph, the operation

of the foreign air transportation here authorized becomes the

subject of any treaty, convention, or agreement to which the

United States and Mexico are or shall become parties, then this

permit is continued in effect during the period provided in such

treaty, convention or agreement.

BOEBBEBEEREEBBEE ES

A-25

The Civil Aeronautics Board, through its Secretary, has

executed this permit and affixed the seal of the Board on May 30,

1978.

PHYLLIS T. KAYLOR

Secretary

(SEAL)

Issuance of this permit to

the holder approved by the

President of the United States

on June 19, 1978

in Order 78-6-127