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This week the Supreme Court issued a unanimous decision in Sachs v. OBB Personenverkehr. As expected, the Court held that OBB, a railroad owned by the Austrian government, was immune under the Foreign Sovereign Immunities Act. The plaintiff argued, and the Ninth Circuit (en banc) held, that an exception to immunity applied because the action against OBB was “based upon a commercial activity carried on in the United States” – namely the sale of the ticket to Sachs in the United States. The ticket sale was a necessary element of her claims, so Sachs argued those claims were “based upon” the sale of the ticket. Other than the ticket sale, the events related to the case all occurred in Innsbruck, Austria, where Sachs was injured while trying to board a moving train.
The Chief Justice’s opinion reasoned that conduct comprising only “one element” of the cause of action is not enough to satisfy the “based upon” requirement of the first clause of the commercial activity exception in 28 U.S.C. § 1605(a)(2). Instead, the Court held—following the views of USG in its amicus brief—that an action is based upon the conduct which constitutes “gravamen” of the suit. In this case, the gravamen or the “core” of the suit was Innsbruck, Austria, where the allegedly dangerous conditions of the platform and faulty boarding procedures led to the accident.
Beyond this, the Court’s short opinion does not say much, although it does point out (in note 2) that it the opinion is limited and it does defend (in Part III) the decision to not say more. The opinion is notably sanitized of any references to lower court cases other than Sachs itself, perhaps because those cases generally endorsed the “one element” test. They include Kirkham v. Air France which involved an unfortunate collision with a luggage cart in Orly airport. As in Sachs, the only connection to the United States was the ticket purchase, which the D.C. Circuit held was sufficient. And the Seventh Circuit endorsed the “one element” test in Santos v. Compagnie Nationale Air France, a case cited approvingly in Saudi Arabia v. Nelson. The Santos case also involved an accident at Orly airport. Be careful out there, folks.
More significantly, the Court did not analyze the case in terms of due process and personal jurisdiction, despite the questions at oral argument on this topic. This was a good decision by the Court, as I wrote immediately following the oral argument.
Finally, although the Court does not say what to do about multiple claims and multiple gravamen, it does seem to provide an implicit answer to whether a single negligence claim can have two gravamen and, if not, where the single gravamen is located. Suppose, the Chief Justice had asked at argument, negligent work on landing gear in New York causes an injury to passengers when the plane lands in Austria. Where is the gravamen or are there more than one? Chief Justice Roberts appears to answer that question in the Sachs opinion by citing to a 1915 letter from Frankfurter to Holmes saying that the “essentials” of a personal injury are at the “point of contact” – “the place where the boy got his finger pinched.” Or, I guess, the place where the airplane with faulty landing gear produces an injury. Is the “point of contact” the same as the lex loci delicti rule from conflicts of law? That is left for another day, as are claims with less tangible injuries such as the misappropriation of trade secrets and other data or intellectual property-related actions, some of which may prove difficult to analyze under the Court’s gravamen test.