In both tort and business contract cases, a court's acquisition of personal jurisdiction is often problematic, and plaintiffs often find it difficult to find personal jurisdiction in any United States forum, particularly with foreign air carriers.
Defendants usually must be shown to carry on "continuous and systematic" business with the forum state. The factors typically examined are: (1) does the carrier have its corporate headquarters or manufacturing facility in the state; (2) does it have any service centers, dealerships or subsidiaries in the state; (3) does it advertise by state or nationwide; (4) does it maintain any bank accounts in the state; and (5) does it have any representatives or agents in the state.
In Durrett v. Cessna Aircraft Corp., 1994 U.S. Dist. LEXIS 3240 (E.D. Mich. Jan 18, 1994), the Court found no personal jurisdiction and further held that Cessna's subsidiary relationship with Textron, which was located in the forum state, did not create personal jurisdiction over its subsidiary.
In Gould v. Aerospatiale Helicopter Corp., 40 F.3d 1033 (9th Cir. 1994), the court affirmed a trial court's determination that the United States subsidiary of a French state-owned corporation could be tried as a defendant in a jury trial. The subsidiary had argued that as a wholly-owned subsidiary of a foreign sovereign it was covered by the FSIA, 28 U.S.C. 1330, 1602-1611 (1988), which prohibits jury trials of actions against foreign sovereigns. The appellate court held that the FSIA was limited only to "foreign states," and did not grant the right to a bench trial to a domestic subsidiary
Under this exception a foreign state is subject to jurisdiction in the United States courts if the action involves conduct that occurred in the course of commercial activity carried on in the United States. 28 U.S.C. 1605(c). In Sugimoto v. Exportadora de Sal, S.A. de C.V., 19 F.3d 1309 (9th Cir. 1994), the defendant air carrier, 51 per cent owned by the Mexican government, was found to be susceptible to suit in the United States because of the tortious conduct of the pilot, which occurred in U.S. air space, and because of the company's conduct in arranging transportation for prospective business partners.
There are often multiple forums available in cases involving air carriers, whether in business or tort. Therefore, the early parts of many cases involve the litigation of the most "convenient forum." Such decisions, particularly if the result is placing a plaintiff in a foreign venue, can have significant impact on the continuing viability of the litigation filed.
A case that highlights the difficulty that can be encountered by plaintiffs seeking to file actions against foreign air carriers is Jorreblanca de aguilar v. Boeing Co., 11 F.3d 55 (5th Cir. 1993). Plaintiffs made five unsuccessful attempts to pursue a wrongful death action against Mexicana which involved an airline crash in Mexico. Cases were filed in state and district courts in Texas, Illinois and Washington state. each time the case was dismissed on the basis of FNC.
In 1993 Texas codified FNC in order to ease the ability of united states citizens to obtain jurisdiction in Texas. Tex. Civ. Prac. & Rem. Code Ann. 71.051.
The statute establishes different tests applicable to claimants depending on whether they are legal residents of the United States. The statue creates several significant exceptions to the FNC doctrine for particular types of lawsuits. The statute specifically exempts injury or death actions arising from air transportation, provided the factual basis for the action has sufficient contacts with Texas.
Under the Texas statute, if the court finds another forum may be more convenient, the court will transfer the case only where each defendant enters a written stipulation that it will submit to personal jurisdiction in the transferee forum and waives any statute of limitation defense that would be available in the transferee's, but not transferor's, forum.
With respect to air transportation, the statute exempts injury and death actions that are "caused by a means of air transportation designed, manufactured, sold, maintained, inspected or repaired in [Texas], or occurred while traveling in or on a means of air transportation during a trip originating from or destined for a location in [Texas] . . . "
We see a trend of increased plaintiff actions to be filed by plaintiffs in Texas, which has traditionally seen large plaintiff jury awards and has a strong plaintiffs' bar.
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