Foreign Sovereign Immunities Act (FSIA) Decision Reversed By Ninth Circuit En Banc.

Last year we reported the following:

No Jurisdiction. Plaintiff brought an action against an Austrian-owned railway as a result of her attempting to board a moving train in Innsbruck. She purchased a Eurail pass in California from Rail Pass Experts, a company based in Massachusetts. When attempting to board the train, she fell to the tracks through a gap in the platform and suffered injuries that ultimately required the amputation of both legs above the knees. She filed a complaint for negligence, failure to warn and design defect in California against the Republic of Austria. The district court dismissed the action and the Ninth Circuit affirmed, noting the sole basis by which courts in the United States may obtain jurisdiction over foreign states is the Foreign Sovereign Immunities Act [FSIA; 28 USC § 1602], and holding no exception applied.  (Sachs v. Republic of Austria (Ninth Cir.; September 26, 2012) (Reversed and Remanded) 695 F.3d 1021.

The Ninth Circuit, en banc, heard the case and held otherwise.  In reversing and remanding, the court stated: “We hold that the first clause of the FSIA commercial activity exception applies to a common carrier owned by a foreign state that acts through a domestic agent to sell tickets to United States citizens or residents for passage on the foreign common carrier’s transportation system.”  (Sachs v. Republic of Austria (Ninth Cir.; December 6, 2013) 737 F.3d 584.