The Lawletter Vol 41 No 1
The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611, shields foreign governments and their agencies from suit in U.S. courts unless the suit falls within an exception specifically enumerated in the Act. In a recent decision, OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 392 (2015), a unanimous U.S. Supreme Court considered the commercial activity exception, 28 U.S.C. § 1605(a)(2), and concluded that the exception did not extend to the purchase of a Eurail pass in the United States.
Carol Sachs, a California resident, purchased a Eurail pass over the Internet from a Massachusetts-based travel agent. Eurail passes allow holders unlimited passage for a set period of time on participating Eurail Group railways, including OBB Personenverkehr AG ("OBB"), the Austrian state-owned railway. As she was attempting to board an OBB train in Innsbruck, Austria, Ms. Sachs fell from the platform onto the tracks, where a moving train crushed her legs, requiring amputation of each leg above the knee. She brought suit for her injuries in the U.S. District Court for the Northern District of California on the grounds of (1) negligence, (2) strict liability for design defects in the train and platform, (3) strict liability for failure to warn of the design defects, (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses, and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses.Read More