Sugimoto v. Exportadora De Sal, S.A. De C.V.

• Decision Date: 01 July 1994
• Docket Number: No. 93-55716,93-55716
• Citation: 19 F.3d 1309
• Parties: Hiroko SUGIMOTO; Kimiko Kodani; Mayumi Nukiwa; Eri Omachi; Kuniko Omachi, Plaintiffs-Appellees, v. EXPORTADORA DE SAL, S.A. DE C.V., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1309

19 F.3d 1309

Hiroko SUGIMOTO; Kimiko Kodani; Mayumi Nukiwa; Eri Omachi; Kuniko Omachi, Plaintiffs-Appellees, v. EXPORTADORA DE SAL, S.A. DE C.V., Defendant-Appellant.

No. 93-55716.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 1, 1994.

Decided March 25, 1994.

As Amended July 1, 1994.

Clyde Greco, Jr., Greco & Traficante, San Diego, CA, for defendant-appellant.

Robin Foor, Belmont, CA, for plaintiffs-appellees.

On Appeal from the United States District Court for the Southern District of California.

Before: TANG, PREGERSON and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

Exportadora De Sal, S.A. De C.V. (Exportadora) appeals from the judgment entered after a bench trial in a wrongful death action brought by the survivors of Katsuo Sugimoto, Yoshihito Kodani and Hideo Omachi (the plaintiffs). We have jurisdiction under 28 U.S.C. Sec. 1330, and affirm.

FACTS

Exportadora is a manufacturer of salt owned 51 percent by the government of Mexico and 49 percent by Mitsubishi Corporation of Japan. Exportadora is a major producer of salt, which it markets internationally. It has a manufactory of salt at Guerrero Negro, Mexico. The plant is located in a company town. The most convenient city in proximity to Guerrero Negro is San Diego, California. Exportadora maintained an office in San Diego.

It is possible to get to Guerrero Negro from San Diego by bus, but the only convenient way of getting there is by Exportadora arranging a flight from Tijuana, Mexico to Guerrero Negro. For visitors to Guerrero Negro accepted by Exportadora, the practice was for the company to send a van to its San Diego office to transport them to the Tijuana airport. There was no telephone at the plant and it communicated with outside parties by telex to the San Diego office.

On September 4, 1987 an employee of Mitsubishi asked Exportadora to provide transportation for Omachi to Guerrero Negro by car and company plane. Mitsubishi's telex noted that Omachi was a manager for Asahi, one of Exportadora's most important Japanese customers. A second telex from Mitsubishi to Exportadora stated, "We hope that your beautiful explanation and arrangements will charm him very much." A third telex thanked Exportadora for accepting "Omachi's visit to G.N."

On September 18, 1987 Mitsubishi asked Exportadora to arrange for transportation to Guerrero Negro for Sugimoto and Kodani by pick-up truck and company plane. Sugimoto and Kodani were professors of Tottori University in Japan and were interested in an agricultural project at Guerrero Negro. On September 22 Sugimoto and Kodani arrived by air in San Diego and were met by a representative of Exportadora, who arranged for their overnight stay in San Diego. The following day Exportadora had them transported to the Tijuana airport from which they flew in the company plane to Guerrero Negro. The company prepared a schedule On September 27 Omachi arrived at San Diego and on the following day was transported by Exportadora's van to Tijuana and by company plane to Guerrero Negro. His return was also scheduled for September 30. In Guerrero Negro Omachi, Sugimoto and Kodani were fed in the Exportadora company dining room and were housed without charge at Exportadora's guest quarters.

showing that they would return to Tijuana on September 30.

The company plane was not available on September 30 because of a directors' meeting. An Exportadora employee chartered an air taxi company to carry the scheduled passengers from Guerrero Negro to Tijuana.

Flying in heavy fog on the morning of September 30 in air space of the United States, the pilot of the air taxi crashed into a hill outside of Tijuana and fell on American soil. The district court found the crash due to the pilot's negligence in descending below the proper glide path and in not executing a missed approach when required to do so.

The crash killed the pilot and the passengers.

PROCEEDINGS

The plaintiffs brought suit against Exportadora. Exportadora challenged the jurisdiction of the district court on the ground of its sovereign immunity under 28 U.S.C. Secs. 1603(a), (b)(2) and when the district court held it had jurisdiction, Exportadora appealed to this court. We held that in transporting Omachi, Sugimoto and Kodani Exportadora had been engaged in commercial activity in the United States and so fell within one of the exceptions of the Foreign Sovereign Immunities Act, viz. "the action is based upon a commercial activity carried on in the United States by a foreign state." 28 U.S.C. Sec. 1605(a)(2). Schoenberg v. Exportadora, 930 F.2d 777 (9th Cir.1991). We found the commercial activity to lie in Exportadora's "arranging transportation for its prospective business partners" in the case of Omachi and appeasing the Mexican government in the case of the transportation provided to Sugimoto and Kodani. Id. at 780.

On remand, a bench trial was held in which the district court found Exportadora liable on the basis of several theories of liability. Exportadora appeals.

ANALYSIS

Jurisdiction

Exportadora raises again the question as to jurisdiction, contending that despite Schoenberg, the issue remains open in the light of Saudi Arabia v....