Petition for Writ of Certiorari — Gillies v. Aeronaves de Mexico, S. A.

INDEX

Page

' PETITION FOR WRIT OF CERTIORARI TO -

| HE UNITED STATES COURT OF AP-

PEALS FOR THE FIFTH DISTRICT____—s—ss 11

_ STATEMENT OF THE CASE 4-5

| ARGUMENT 6-11

CONCLUSION 12

| CERTIFICATE OF SERVICE 13

II

INDEX TO APPENDIX

OPINION OF COURT OF APPEALS —____

ORDER DENYING THE RE-HEARING ___

. FINDINGS OF FACT AND CONCLUSIONS

OF LAW OF THE TRIAL COURT FILED

SEPTEMBER 23, 1971

ORDER OF TRIAL COURT DATED OCTO-

BER 18, 1971

Ill

AUTHORITIES

Cases Page

Clay v. Sun Insurance Office, Ltd.,

877 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229 __ 10,12

Continental Casualty Co. v. Westinghouse

Electric Supply,

403 F.2d 761 (5th Cir. 1968) 10

Erie Railroad Co. v. Tomkins,

304 U.S. 64, 58 S.Ct. 817, 28 L.Ed.118_..... ss: 10

Kenney v. Trinidad Corp.,

349 F.2d 832, 839 (5th Cir. 1965) _..._...__. 10, 11

Klaxon Co. v. Stenton Electric Manufacturing

Company,

318 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 _ 10

W. F. Thompson Construction Co. v. Southeastern

Palm Beach County Hospital District,

174 So.2d 410 (Fla. App. 1965)

Sun Insurance Office, Ltd. vs. Clay,

133 So.2d 735, 738 (Fla. 1961)

Wood & Selich v. Compagnie Generale,

43 F.2d 941 (2 Cir., 1930)

CONSTITUTIONAL, STATUTORY &

RULE PROVISIONS

Florida Statute, $95.03 (1969)

Florida Statute, $95.11, 5(e)

Mexican Federal Labor Law, Title 10, §517 sae

Rule 19, 1(h) Supreme Court Rules

28 USC §1254(1)

in the

Supreme Court

of the

Gnuited States

OCTOBER TERM, 1972

CASE NO.

NEIL W. GILLIES,

Petitioner,

v8.

AERONAVES DE MEXICO, §.A.,

Respondent.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth District

Petitioner, NEIL W. GILLIES, prays that a Writ of

Certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fifth Circuit

entered August 28, 1972, in Case No. 71-3464.

DECISION TO BE REVIEWED

The Opinion of the Court of Appeals, not yet reported

(A. 1-9), reverses the Findings of Fact and Conclusions of

Law of the United States District Court of the Southern

District of Florida, Case No. 70-1842-Civ-PF (A. 11-14),

which were in favor of the petitioner in said cause.

2

JURISDICTION

The judgment of the Court of Appeals of the Fifth

Circuit was entered on August 28, 1972. A timely petition

for rehearing en banc was denied on October 4, 1972, and

this Petition for Certiorari was filed within ninety (90)

days of that date. The Court’s jurisdiction is envoked

under 28 USC §1254(1) and Rule 19, 1(h), Supreme Court

Rules.

QUESTIONS PRESENTED

I.

DID THE APPEALS COURT ERR IN

REVERSING THE DISTRICT COURT BY

DETERMINING THAT THE ENFORCE-

MENT OF PETITIONER’S EMPLOYMENT

CONTRACT RIGHTS WAS SUBSTANTIVE

AND NOT PROCEDURAL AND THEREFORE

CONTROLLED BY THE MEXICAN, RATHER

THAN FLORIDA, LAW WHICH BARRED

PETITIONER’S CLAIM?

Il.

DID THE APPEALS COURT ERR IN

REVERSING THE DISTRICT COURT BY

DETERMINING THAT THE ENFORCE-

MENT OF PETITIONER’S EMPLOYMENT

CONTRACT RIGHTS WAS SUBSTANTIVE

AND CONTROLLED BY MEXICAN LAW

WHICH CONFLICTS WITH THE PUBLIC

POLICY OF THE STATE OF FLORIDA?

STATUTORY PROVISIONS INVOLVED

Florida Statutes, §95.03 (1969) :

“All provisions and stipulations contained in any

contract whatever entered into after May 26,

1913, fixing the period of time in which suits may

be instituted under any such contract, or upon

any matter growing out of the provisions of any

such contract, at a period of time less than that

provided by; the statute of limitations of this

state, are hereby declared to be contrary to the

public policy of this state, and to be illegal and

void. No court in this state shall give effect to

any provision or stipulation of the character men-

tioned in this section.”

Florida Statutes, $95.11, 5(e):

“Actions other than those for the recovery of real

property can only be commenced as follows:

* * *

(5) Within three years.—

(e) And an action upon a contract, obligation

or liability not founded upon an instrument of

writing * *# bad

Mexican Federal Labor Law, Title 10, §517:

“Actions of workers who are dismissed from work

shall lapse in two months.”

Oe Ye LST On Se, ay ed

SEAL EIS ME Sper

—

4

STATEMENT OF THE CASE

Petitioner, NEIL W. GILLIES, a citizen of the United

States residing in Miami, Florida, brought an action

against the respondent, AERONAVES DE MEXICO,

S.A., an air flagline of the Republic of Mexico, seeking to

recover damages claimed to be due petitioner under the

provisions of the Mexican Federal Labor Law based upon

the discharge of the plaintiff from the defendant’s employ

without cause. Petitioner claimed that he fully and prop-

erly performed services for the respondent as a navigator

during the term of his employment and that his employ-

ment was based upon an unwritten contract with the

respondent for an indefinite term and that this contract

incorporated the benefits of the Mexican Federal Labor

Law.

Petitioner further claimed that his contract with the

respondent was terminated and he was separated without

cause and was, therefore, entitled to the benefits contained

in the Mexican Labor Law.

The respondent raised the main defense that peti-

tioner’s claim was barred by the lapsing provisions of the

Mexican Labor Law.

The case was tried before the District Court without

a jury, and upon the evidence presented, the trial court

found for the petitioner, and in so doing determined that

the petitioner’s cause of action arose in the State of Flor-

ida; that the plaintiff was terminated without justifiable

cause; and that the plaintiff was entitled to the benefits

of the Mexican Labor Law. The trial court further found

that the issue of limitations was procedural and not sub-

stantive, and that the Florida statute applied rather than

the lapsing provisions of the Mexican Labor Law (A. 14).

Thereafter the respondent entered its appeal to the

United States Court of Appeals for the Fifth Circuit, which

rendered an Opinion and Order dated August 28, 1972

(A. 1-9), holding the lapsing provisions of the Mexican

Federal Labor Law to be substantive and applicable to the

petitioner's claim, under an exception to the general rule

that the law of the forum controls procedural matters.

The appellate court thereupon held that the District Court

was in error in not applying the limitations of the Mexican

law to the petitioner’s claim, and the judgment of the trial

court was reversed.

The appellate court apparently neglected to consider

the public policy of Florida and its application to the peti-

tioner’s claim as set forth in Florida Statute §95.03 (1969).

Thereafter, a Petition for Rehearing and Suggestion for

Hearing En Banc were filed by the petitioner, which were

denied by Order of the Court of Appeals for the Fifth

Circuit dated October 4, 1972 (A. 10).

The initial action was brought by the petitioner in

the Circuit Court of the Eleventh Judicial Circuit of Flor-

ida, but was removed by petition of the respondent to the

United States District Court, Southern District of Florida,

on the basis of a diversity of citizenship between the

respective parties.

L

THE APPEALS COURT ERRED IN REVERS-

ING THE DISTRICT COURT BY DETER-

MINING THAT THE ENFORCEMENT OF

PETITIONER’S EMPLOYMENT CONTRACT

RIGHTS WAS SUBSTANTIVE AND NOT

PROCEDURAL AND, THEREFORE, CON-

TROLLED BY THE MEXICAN, RATHER

THAN FLORIDA, LAW.

The decision of the Court of Appeals wholly miscon-

strues the lapsing provisions of the Mexican Federal

Labor Law by holding that Florida courts would charac

terize the lapsing provisions as exceptions to the general

rule, and therefore substantive rather than procedural

This conclusion is reached by the appellate court holding

that the petitioner’s right is created by the Mexican law,

the period of limitations is contained in the law, and the

lapsing period, or limitation, is specifically applicable to

the petitioner’s situation.

The petitioner’s cause of action was based on breach

of contract. The claim sought to be enforced is not a state-

torily created one, although the contract embodies the

terms and benefits of the statute. However, had there

been no contract, there would have been no cause of action

The appellate court found that Florida generally fol-

lows the traditional rule that a statute of limitations is

procedural for the purposes of choice of law requiring

7

the lex fori to be applied. Florida also recognizes the

exception to this general rule when an entirely new right

of action is created by statute, and that same statute pro-

vides a limitation of time for the enforcement thereof.

Clearly, the appellate court overlooked the fact that

the petitioner’s claim was founded upon a contract, the

action to enforce it was based upon contract and therefore

not controlled by those cases, involving the exception to

the well-established rule, applying the law of a foreign

jurisdiction, other than the place of making the contract,

rather than the law of the forum where the litigation is

being undertaken.

The appellate court, in arriving at the conclusion set

forth in its Opinion, considered a number of cases which

were completely inapposite to a contract action of the type

here involved. The Opinion completely overlooks the test

enunciated in the case of Wood & Selich v. Compagnie

Generale, 43 F.2d 941 (2 Cir. 1930), which, it is con-

tended, is the case that Florida would follow in construing

the Mexican Federal Labor Law lapsing provisions. More-

over, it appears that the appellate court overlooked certain

other facts pertaining to the petitioner’s contract. It was

established that the contract was entered into in Florida;

the petitioner was based in Florida; paid in Florida; and

discharged in Florida. The respondent was engaged in

doing business in Florida and, in fact, the only connection

between the respondent and the Republic of Mexico is that

the respondent, Aeronaves de Mexico, is a flag airline of

that country. Therefore, the interest of the State of Flor-

ida in the contract and its interpretation would appear to

outweigh the interest of the Republic of Mexico.

In fact, it would appear that since this is a contragt

action, and not statutory; since expert testimony which

was uncontradicted, established that the Mexican

provisions bar but do not extinguish one’s contract rights;

and since Florida has the greater interest in the applica.

tion of its law in this case, it must logically be concluded

that Florida would follow the general conflicts-of-law rul-

ing and construe the Mexican lapsing provisions as proce-

dural and not applicable.

The Mexican Federal Labor Law has been in existence

for over 20 years for the sole purpose of benefiting the

worker and not the employer, and is so constructed as to

construe every doubt, ambiguity and question

the law in favor of the worker and against the employer,

Clearly, the conclusion of the appellate court that

Florida would consider the claim of the petitioner to be an

exception to the general rule for enforcement of contracts

was without realistic support in the evidence or the law

and therefore erroneous.

9

IL.

THE APPEALS COURT ERRED IN REVERS-

ING THE DISTRICT COURT BY DETER-

MINING THAT THE ENFORCEMENT OF

PETITIONER’S EMPLOYMENT CONTRACT

RIGHTS WAS SUBSTANTIVE AND CON-

TROLLED BY MEXICAN LAW WHICH CON-

FLICTS WITH THE PUBLIC POLICY OF

THE STATE OF FLORIDA.

The appellate court apparently failed to realize that

its opinion was diametrically opposed to public policy of

the State of Florida as expressed by statute. Florida Stat-

ute §95.03 (1969) states:

“All provisions and stipulations contained in any

contract whatever entered into after May 26,

1918, fixing the period of time in which suits

may be instituted under any such contract, or

upon any matter growing out of the provisions

of any such contract, at a period of time less than

that provided by the statute of limitations of this

state, are hereby declared to be contrary to the

public policy of this state, and to be illegal and

void. No court in this state shall give effect to

any provision or stipulation of the character men-

tioned in this section.”

This statute has been interpreted and upheld by the

following decisions:

W. F. Thompson Construction Co. v. Southeast-

ern Palm Beach County Hospital District, 174

So.2d 410 (Fla.App. 1965).

10

Continental Casualty Co. v. Westinghouse Elec-

tric Supply, 403 F.2d 761 (5th Cir. 1968).

Attention is called to the fact that in this

action, conflicts of laws, rules and public policy of Florida

controls. Erie Railroad Co. v. Tomkins, 304 U.S. 64, 58

S.Ct. 817, 28 L.Ed. 118; Klazon Co. v. Stenton Electric

Manufacturing Company, 313 U.S. 487, 61 S.Ct. 1020,

85 L.Ed. 1477.

In fact, this Florida statute has been interpreted by

the Supreme Court of Florida as applying to

“[{ajny contract whatever—foreign or domestic

—when Florida’s contact therewith, existing at

the time of execution or occurring thereafter, is

sufficient to give a court of this State jurisdic-

tion of a suit thereon.” (Sun Insurance Office,

Lid. v. Clay, 133 So.2d 735, 738 (Fla. 1961).)

It should also be noted that the constitutionality

of this Florida statute along with the interpretation

given it by the State of Florida were upheld by the United

States Supreme Court in Clay v. Sun Insurance Office,

Lid., 377 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229.

In discussing the State-interest of Mexico while

neglecting to consider the public policy of Florida, the

appellate court quoted, on page 8 of its Opinion, from the

case of Kenney v. Trinidad Corp., 349 F.2d 832, 839 (5th

Cir. 1965), the following:

“The state that creates the cause of action has

an obvious interest in determining how long it

can be enforced, but the forum has relatively

little to set against the interest of the foreign

state. There is something to be said for applying

11

the prescriptive period of the forum if it is

shorter than the foreign period: the courts of

the forum should not be forced to decide stale

claims merely because the foreign state has a

longer period of limitation. But the forum has no

particular interest in applying a longer period

of limitation.”

However, the appellate court apparently overlooked

the first sentence of the next paragraph following the

quote, which states:

“(ijn applying conflict rules, courts reserve the

right to enforce a strong foreign law if it is

contrary to a strong public policy of the forum.”

(Emphasis added)

Kenney v. Trinidad, supra, 839.

As the appellate court pointed out in its Opinion on

page 3, the plaintiff “[h]ad all of his contracts with Aero-

naves in Miami, where he was hired, based, paid and fired.”

Thus, it would appear that the lex loci contractus was

in Florida, and that Florida’s law would apply concerning

the remedy for the wrongful discharge of the petitioner.

However, both parties contracted that the Mexican Federal

Labor Law would apply. For that reason the remedies

provided in the Mexican Federal Labor law must apply in

the present case; however, in light of Florida’s strong

public policy prohibiting the application of any provision

in any contract which would fix a period of time less than

that provided by Florida’s Statute of Limitations, the

Mexican lapsing provisions, even if construed as substan-

tive, could not be enforced in Florida. To attempt to do

so is strictly against Florida’s public policy and void.

12

CONCLUSION

The appellate court, in failing to apply the principals

set forth in Wood & Selich v. Campagnie Generale, supra,

and likewise the appellate court in ignoring the public

policy of the State of Florida which has been

by the Court in Clay v. Sun Insur. Office, Ltd., supra,

has rendered a decision in conflict with a decision of the

Supreme Court and another Court of Appeals, and hag

decided an important state question in a way which con-

flicts with applicable state law which calls for an exercise

of this Court’s power of supervision, and a writ of certio-

rari should therefore issue to review the judgment and

opinion of the Fifth Circuit.

Respectfully submitted,

JOHN W. PRUNTY

and

GUION T. DeLOACH

Counsel for Petitioner

887 City National Bank Building

Miami, Florida 33130

by.

13

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the within

Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth District was mailed this ____ day

of December, 1972, to SHUTTS & BOWEN, Attorneys for

Respondent, 1000 First National Bank Building, Miami,

Florida 33131.

JOHN W. PRUNTY

APPENDIX

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-3464

NEIL W. GILLIES,

Plaintiff-Appellee,

versus

AERONAVES DE MEXICO, §S.A.,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

(August 28, 1972)

Before TUTTLE, MORGAN and RONEY,

Circuit Judges.

RONEY, Circuit Judge: Neil W. Gillies brought

this action against Aeronaves de Mexico, S.A., the Mexican

national airline, seeking to recover damages allegedly due

him under the provisions of the Mexican Federal Labor

Law because of his wrongful discharge from employment

with the airline. He recovered $47,666.66 in damages. The

district court concluded that the Florida State of Limita-

tions was controlling, not the limitation period in the

Mexican Law which would have barred the suit. We held

that the Mexican Law should apply, that the suit was not

timely brought, and that the judgment should be reversed,

App. 2

THE FACTS

Gian is cise of the United States reg i

Miami, Florida. He was originally employed in 1959 as a.

saviguiar Sor Aavevine Gust Aiztinss fiying trea aan

to Bermuda and Europe. He continued in the employ of —

this airline until its merger with Aeronaves. On March 1,

1968, Aeronaves employed Gillies as a navigator on the

Miami to Madrid run. This employment arrangement was —

evidenced by a memorandum in writing dated March 6,

1963, and was for a one year period commencing on March

1, 1968, and ending on the last day of February, 1964,

Upon the expiration of the first year of employment

Gillies continued as navigator on the same flight run unti]

his employment was terminated by Aeronaves on June 30,

1968. The termination was found by the trial court to be

without justifiable cause. From the end of February, 1964,

until the termination the parties did not enter into a writ-

ten contract nor was there in existence any written

memorandum evidencing the employment conditions.

Since Gillies was a United States citizen, Aeronaves

secured Mexican work permits for him in compliance with

Mexican law. These were usually for a year or six months

and were renewed from time to time as required. At the

time Gillies was discharged he was covered by a Mexican

work permit which had not expired.

Gillies had all his contacts with Aeronaves in Miami

where he was hired, based, paid, and fired. Aeronaves had

a facility in Miami and was licensed by Florida to conduct

business there.

We agree that the district court had jurisdiction of

the parties and the subject matter of this cause.

App. 3

THE MEXICAN FEDERAL LABOR LAW

The Mexican Federal Labor Law provides certain

benefits for employees who are unjustly terminated from

their jobs. Although in dispute, it can be assumed for the

of this decision that the district court correctly

held that plaintiff's employment was terminated without

cause within the meaning of the Mexican Law.

In such case, to be exempt from the obligation of reinstat-

ing the employee, the employer must pay the following

compensation under Article 125 of the 1931 Law:

Article 125.—The compensations mentioned in

the foregoing Article shall consist of:

I. Three months’ wages.

Il. If the work relation should be for a spe-

cific period of time not exceeding one year: a sum

equal to the wages payable for one-half the period

that services were rendered. If exceeding one

year: a sum equal to six months’ wages for the

first year and equivalent to twenty days’ wages

If the work relation was for an indefinite

period, the indemnity shall consist of twenty days’

wages for each year’s service.

Ill. The amount of the unearned wages for

the period elapsing from the date of dismissal

until the indemnities mentioned in the two fore-

going Sections have been paid.

App. 4

No indemnity had been paid to plaintiff, and the district

court held that he was entitled to unearned wages to the

date of judgment under provision III.

This Law provided that the rights granted thereunder

“shall lapse in one month” and that “the term for

shall run from the moment of discharge.” In 1970 a new

law was substituted which provides that such actions “shalj

lapse in two months” and that “lapsing shall commence to

run from the day following the date of dismissal.” A}

though there is some dispute as to which law should be

used to decide the substantive question, the matter is of no

concern to the limitations argument. Under the one law

plaintiff had until July 30, 1968, and under the other untij

August 30, 1968. Under either statute his suit filed on

November 25, 1970, would be barred.

THE ISSUE

The trial court decided that the suit was not barred

by the Florida Statute of Limitations, a point disputed but

unnecessary for us to resolve. It held that the Florida

law applied and not the Mexican law because the

limitations and lapsing provisions “are procedural provi-

sions of the Mexican Federal Labor Law and cannot be

applied by this Court.” This appeal squarely raises the

question of whether the law of the forum, Florida, or the

law by which the contract is to be governed, Mexico, is to

supply the controlling statute of limitations.

THE DECISION

Since this is a diversity case, the issue is to be decided

as if it were being determined in a Florida court applying

the Florida conflict of laws rule. Klaxon Co. v. Stentor

rect in not applying it. If it is substantive, then plaintiff's

daim is barred. Again, whether the provision is proce-

dural or substantive must be determined by Florida law.

Fahs v. Martin, 224 F.2d 387 (5th Cir. 1955).

Generally, Florida follows the traditional rule that a

statute of limitations is procedural for the purposes of

choice of law requiring the lex fori to be applied. Van

Deren v. Lory, 100 So. 794 (Fla. 1924). However, Florida

has long recognized an exception to this general rule. When

an entirely new right of action is created by statute, and

the same statute provides the limitation of time within

which the action must brought, then

“[s)uch a limitation of time is not like the ordi-

nary statute of limitation affecting merely the

App. 6

remedy, but it enters into and becomes a part of

the right of action itself, and if allowed to lapse

without the institution of the action, such right

of action becomes extinguished and is gone for-

ever.” Fowler v. Mathney, 184 So.2d 676, 677

(Fla. App. 1966).

See La Floridienne, J. Buttgenbach Co. v. Seaboard Air

Line Ry., 52 So. 298 (Fla. 1910); Bowery v. Babbit, 128

So. 801 (Fla. 1930). This exception is well established in

American jurisprudence:

“There is one well-settled exception to the gen-

eral rule that forum law governs statutes of lim-

itation. When a statute which creates a right

specifies that the existence of its new creation

shall continue only for a limited length of time,

there is no existent right beyond what the stat-

ute has created, and no other state, even though

its statute would allow a longer period for such

suits, will entertain an action on a right which

has ceased to exist.” Leflar, American Conflicts

Law, §127, at page 305 (Rev. Ed. 1968).

In an early Supreme Court case, the rationale for this

principle was succinctly stated by Justice Holmes:

“The theory of the foreign suit is that, although

the act complained of was subject to no law

having force in the forum, it gave rise to an obli-

gation, an obligatio, which, like other obligations,

follows the person, and may be enforced wherever

the person may be found. But as the only source

of this obligation is the law of the place of the act,

App. 7

it follows that the law determines, not merely the

existence of the obligation, but equally determines

its extent. It seems to us unjust to allow a plain-

tiff to come here absolutely depending on the for-

eign law for the foundation of his case, and yet

to deny the defendant the benefit of whatever

limitations on his liability that law would impose.”

Slater v. Mexican National Railroad Co., 194 U.S.

120, 126 (1904).

In a Fifth Circuit case, when refusing to apply a Lou-

isiana Workmen’s Compensation Law without applying

the Louisiana limitation period, Judge Sibley considered

the limitation period as a condition of the right, stating:

“While ordinarily a a of the forum

are applied as pertaining merely to the remedy,

there is an exception where the cause of action

is created by a foreign statute which also fixes

a limitation for its assertion. The limitation is

then considered to be a condition of the right, so

that no recovery is allowed where recovery would

be barred by the law which gives the right.”

Ford, Bacon & Davis v. Volentine, 64 F.2d 800,

802 (5th Cir. 1933).

Judge Wisdom later expressed the principle in terms

of state interest in Kenney v. Trinidad Corp., 349 F.2d

832, 839 (5th Cir. 1965) :

“The state that creates the cause of action has an

obvious interest in determining how long it can

be enforced, but the forum has relatively little

to set against the interest of the foreign state.

App. 8

There is something to be said for applying the

prescriptive period of the forum if it is shorter

than the foreign period: the courts of the forum

should not be forced to decide stale claims merely

because the foreign state has a longer period of

limitation. But the forum has no particular inter-

est in applying a longer period of limitation.”

The lapsing provisions could have been

if, within the lapsing period, Gillies had filed a claim

against Aeronaves with the Mexican administrative board

set up by the Law to handle employer-employee disputes

of this genre. It could also have been “interrupted” if the

defendant had recognized verbally, in writing or by un-

questionable acts, the right of Gillies. Neither of these

events took place. There is no provision for a revival of

the right once it has lapsed. The import of the Law is that

it is the right which lapses, and not the remedy.

The impact of liability created by the statute is a

matter of Mexican interest. It is entirely proper that

Mexican law should control the extent of that impact. The

very words of the law speak in terms of the lapsing of a

right, and not in terms of a bar to its enforcement.

Regardless of which rationale is used, we think that

the Florida courts would hold that the lapsing provision

of the Mexican Labor Law is substantive and should be

applied under the exception to the general rule. The em-

ployee’s right is created by the Law, the period of limita-

tions is contained in the Law, and the lapsing period

is specifically made applicable to employees in Gillies’

situation.

App. 9

_ The justice of this conclusion is all the more evident

because of the continuing liability and increasing amount

of damages that accrue under the Law through the delay

in payment of the claim. The Law gives a right to wages

“from the date of dismissal up to the date the indemnities

are paid.” The importance of a speedy resolution of any

claim is readily apparent. The delay of two years in bring-

ing the claim resulted in a considerably larger judgment

against defendant than Gillies could have obtained if he

had brought the suit within the period required and it had

been promptly determined and paid. Thus the very nature

of the Law causes the lapsing period to have a direct

effect upon the amount of the liability. With such a sub-

stantive effect on the amount of the claim, the argument

that the lapsing provisions are only procedural loses all

force.

The Mexican limitation period should have been ap-

plied. Under it Gillies’ claim had lapsed. The district court

should have denied recovery.

REVERSED.

App. 10

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-3464

NEIL W. GILLIES,

Plaintiff-Appellee,

versus

AERONAVES DE MEXICO, §.A.,

Defendant-Appellant,

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion Aug. 28, 1972, 5 Cir., 1972, ____ F.2d __).

(October 4, 1972)

Before TUTTLE, MORGAN and RONEY,

Circuit Judges.

PER CURIAM: The argument in the petition for

rehearing in reference to the Mexican Labor Law and the

clearly erroneous doctrine of Rule 52(a) apparently over-

looks Rule 44.1, Federal Rules of Civil Procedure. The

Petition for Rehearing is DENIED and no member of

this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

bane, (Rule 35 Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the Petition for Rehearing

En Banc is DENIED.

App. 11

IN THE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 70-1842-Civ-PF

NEIL W. GILLIES,

Plaintiff,

vs.

AERONAVES DE MEXICO, S.A.,

a Mexican corporation,

Defendant.

[Filed September 23, 1971]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THIS CAUSE came on for trial before the Court

without a jury, at which the parties appeared together

with their respective counsel.

Based upon stipulations of the parties and upon the

evidence adduced at trial, the Court makes the following

findings of fact and conclusions of law:

App. 12

FINDINGS OF FACT

1. The Court has jurisdiction of this cause and of

the parties by reason of diversity of citizenship and claims

in excess of the sum of Ten Thousand Dollars ($10,000.00),

At all times relevant hereto, Plaintiff is a resident of Dade

County, Florida, and the Defendant is a corporation orga-

nized and existing under the laws of the Republic of Mexico,

with its principal place of business located in Mexico City,

2. Defendant is the national air carrier of Mexico

operating as such throughout Mexico and internationally

between Mexico and foreign countries, including the United

States. Its administrative, executive and accounting offices

and its maintenance and overhaul facilities are all located

in Mexico.

8. Defendant maintains business offices and airport

facilities in Dade County, Florida, and employs a number

of employees at such offices.

4. The Plaintiff was employed by the Defendant in

Miami, Florida, as a flight navigator for a period com-

mencing on March 1, 1963, and ending on June 30, 1968.

During plaintiff's employment by the Defendant, Plaintiff

fully and properly performed his services and was con-

pensated therefor as agreed.

5. The Plaintiff's employment in Miami, Florida,

was pursuant to an oral agreement which, by implication,

incorporated substantive provisions of the Mexican Federal

Labor Law. In fact, the testimony indicated the Plaintiff

would not have accepted employment without the benefits

of the Mexican Federal Labor Law.

App. 18

6. The Plaintiff was based in Miami, Florida, and

performed as a flight navigator on round-trip flights be-

tween Miami, Florida, and Madrid, Spain. In 1966, the

Plaintiff in connection with his navigation duties per-

formed certain flight training of navigators for the Defend-

ant while on these round-trip flights. Plaintiff received

his pay in Miami, Florida, and was granted expenses for

time spent away from his home base.

7. The Plaintiff's employment was terminated by

the Defendant as of June 30, 1968, in Miami, Florida, with-

out justifiable cause.

8. The Plaintiff's period of employment extending

from March 1, 1963, to June 30, 1968, entitled him to the

indemnities and benefits of the Mexican Federal Labor

Law. The Plaintiff’s termination was accomplished in

Miami, Florida.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the Court

makes the following conclusions of law:

1, The Court has jurisdiction of the parties and of

the subject matter of this cause.

2. Plaintiff’s cause of action arose in Florida and

he is entitled to bring this suit.

8. Plaintiff's termination was without justifiable

cause.

App. 14

4. Plaintiff, as an employee of the Defendant, is

entitled to the indemnities and benefits of the Mexican

Federal Labor Law.

5. The statute of limitations of the State of Florida

is applicable. The limitations or lapsing provisions as wel]

as the provisions for boards of conciliation and arbitration

are procedural provisions of the Mexican Federal Labor

Law and cannot be applied by this Court.

6. Plaintiff is entitled to recover a judgment against

the Defendant in the amount of $47,666.66.

WHEREFORE, judgment shall be entered for the

Plaintiff and against the Defendant in the amount above

specified, and an Order shall be entered accordingly.

/s/ Peter T. Fay

U.S. District Judge

App. 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

No. 70-1842-Civ-PF

NEIL W. GILLIES,

Plaintiff,

vs.

AERONAVES DE MEXICO, S.A.,

a Mexican corporation,

Defendant.

ORDER

THIS MATTER came before the Court upon the

defendant, AERONAVES DE MEXICO, S.A.’s Motion for

New Trial and to Amend and Alter Findings of Fact and

Conclusions of Law and Final Judgment.

The Court has reviewed the motion and supporting

memorandum. The Court considered all of the points raised

by the defendant prior to the entry of judgment and finds

them without merit.

However, upon reviewing the Findings of Fact and

Conclusions, the Court noticed that it failed to state the

specific section of the Florida Statute of Limitations which

is applicable to this cause. The Court, therefore, will amend

App. 16

its Findings of Fact and Conclusions of Law to

state the subsection which is applicable. It is, therefore—

ORDERED AND ADJUDGED that the defendant's

Motion for New Trial and to Amend and Alter

of Fact and Conclusions is hereby denied, and it is

FURTHER ORDERED AND ADJUDGED tht

paragraph 5 of the Conclusions of Law in the Findings of

Fact and Conclusions of Law entered by this Court a

September 22, 1971, is hereby amended to read as follows:

“5. The statute of limitations of the State of

Florida is applicable, specifically Section 95.11

(5) (a), Florida statutes. The limitation or laps-

ing provisions as well as the provisions for boards

of conciliation and arbitration are procedural

provisions of the Mexican Federa] Labor Law and

cannot be applied by this Court.”

DONE AND ORDERED at Miami, Florida this 18th

day of October, 1971.

/s/ Peter T. Fay

UNITED STATES

DISTRICT JUDGE