FRONTIER JUSTICE HIGHLIGHTS SAFETY DIVIDE by Patti Waldmeir
In the sun-stroked lands separated by the Rio Grande, the river divides more than the US and Mexico. The border determines the most basic aspects of life: the level of wages, the bounty of the local shops, even the availability of indoor plumbing.
But there is a more basic truth about the border now being tested in a town on the Texas side of the river: the fact that, in a court of law, the price of a human life, along with concepts of workplace safety and corporate liability, is also set by the border.
Within the next few days a jury in Eagle Pass, Texas, one of the "twin towns" paired off with Mexican cities all along the frontier, is expected to hand down a verdict which will set a price on the lives of 14 Mexican workers killed on their way to work in one of the border's maquiladora plants (foreign-owned factories where inputs are combined with cheap Mexican labour to produce goods for re-export).
Their verdict is almost certain to highlight the crude truth that US courts, and especially the famously generous juries of Texas, put a higher price tag on human life than their Mexican counterparts. But it could also establish a new and costly frontier of corporate liability for US companies operating cross-border factories, and impose expensive new US-style standards for workplace safety.
The trial focuses on a 1997 incident involving a company bus which crashed while transporting Mexican workers to a plant in Mexico owned by the New York-based garment manufacturer Salant Corp, which recently emerged from Chapter 11 bankruptcy.
Workers were burned to death or drowned when the bus rolled into a ditch in early morning rain. Their families are claiming $40m (£25m) in damages, arguing the company negligently operated an old school bus with faulty brakes and an untrained driver.
The case raises some of the hardest questions of third world economic development, and highlights the darker side of globalisation in general and the North American Free Trade Agreement (Nafta) in particular.
For, up to now, US companies have largely avoided liability for the safety of hundreds of thousands of employees in frontier factories which have grown dramatically under Nafta - by staying out of court in the US.
To restrain production costs, many ignore standards of safety, maintenance and training considered essential in the US. And the Mexican government, faced with third world trade-offs between worker safety and economic development, has come down firmly in favour of the latter and turned a blind eye to lax standards.
Even the Nafta agreement requires only that US companies investing in Mexico obey Mexican law - not the more stringent rules applicable back home.
But now a Texas state court judge in Eagle Pass has decided that the border is no shield against liability.
Although the Salant crash took place in Mexico, all the victims were Mexicans and the bus was owned by the Mexican subsidiary of Salant, Judge Amado Abascal decided to hear the case in the 365th district of Texas.
The judge has placed a gag order on the lawyers. But plaintiffs' briefs outline the argument that managerial decisions leading to the accident, including purchasing the bus and maintenance and training decisions, were all made by managers living in Texas, operating under a Texas contract.
The case takes its place alongside other recent litigation in which US corporations are being challenged in US courts, often for human rights abuses or labour exploitation which occured in factories overseas.
Salant is confident the judge's choice of a Texas venue will be reversed on appeal, perhaps by the state's Supreme Court.
The company argues the case should be heard in Mexico, the venue with the most significant links to the case through the nationality of victims and location of the accident.
And the very conservative Supreme Court may be further tempted to rein in the elected Democratic judge in the matter, who was previously removed from a case because of his close relationship with local plaintiffs' attorneys.
But if Salant is wrong, and a jury verdict were affirmed on appeal, the decision could have a significant impact on border industries. In future, says the Maquiladora Association, a manufacturers' group, virtually every maquiladora accident could be tried in Texas. "This could be a dangerous precedent, definitely," says the association's Dennis Charlton. "This could start a flood."
The plaintiffs' lawyers are basing their case on the concept that safety is stateless: that Mexican workers are entitled to the same safety guaranteed by US law. But the harsh border truth, up to now, has been that safety is relative and that the two countries are divided as much by law as geography. That could be about to change.