Lawsuit Over Austrian Train Accident Revived

     (CN) - Austria's national railroad must face a lawsuit in the United States from a California woman who lost both of her legs in a train mishap, the full 9th Circuit ruled Friday.
     A train crushed the legs of Carol Sachs, requiring a double amputation above her knees, after she fell through a gap in a platform while trying to board the vehicle in Innsbruck, Austria, six years ago. Sachs blames her fall on a sudden movement by the train while she was boarding. OBB Personenverkehr AG, which is owned by the Republic of Austria and part of the Eurail system, denies this claim.
     Sachs sued the railroad in San Francisco, alleging negligence, strict liability and breach of implied warranties. While sovereign nations generally escape such claims in U.S. courts, Sachs argued that her case met the commercial-activity exception to the Foreign Sovereign Immunities Act of 1976 (FSIA), as she had purchased the Eurail pass that allowed her board the Austrian train online from Massachusetts-based Rail Pass Experts (RPE).
     U.S. District Judge Vaughn Walker disagreed and dismissed her claims for lack of jurisdiction, and divided three-judge panel of the 9th Circuit affirmed. Later, the federal appeals court vacated the panel ruling and agreed to rehear the issue before an 11-judge, en banc panel.
     The judges voted 8-3 on Friday to let Sachs bring suit in California.
     "A foreign-state owned common carrier, such as a railway or airline, engages in commercial activity in the United States when it sells tickets in the United States through a travel agent regardless of whether the travel agent is a direct agent or subagent of the common carrier," the ruling states.
     Sachs' purchase of the Eurail pass from a U.S. company was enough to meet the requirements of the commercial activity exception, the panel found.
     "Here, buying the Eurail pass from RPE was the start of Sachs's tragic misadventure, and buying the pass in the United States helped to define the scope of duty owed by common carrier OBB to the pass purchaser and traveler," Judge Ronald Gould wrote for the majority. "Because the sale of the Eurail pass is an essential fact that Sachs must prove to establish her passenger-carrier relationship with OBB, a nexus exists between an element of Sachs's negligence claim and the commercial activity in the United States."
     Gould continued that "the sale of the Eurail pass in the United States is 'necessary to the 'duty of care' element of [Sachs's] negligence claim.' To demand more at the jurisdictional phase is to require a plaintiff to prove the merits of her claim." (Brackets in original.)
     Finding that Sachs had "met her burden of proving that the first clause of the commercial-activity exception applies," the appeals panel sent the case back to the District Court for reconsideration.
     Writing in dissent, Chief Judge Alex Kozinski argued that Sachs had failed to show "a sufficient nexus between her purchase and the injury" to establish jurisdiction in the United States.
     "Because plaintiff's claim arises from events that transpired entirely in Austria, it isn't 'based upon' commercial activity carried on in the United States," he wrote. "This would be true even if Austria were itself selling train tickets from a kiosk in Times Square."
     In a separate dissent joined by Kozinski and Judge Johnnie Rawlinson, Judge Diarmuid O'Scannlain contended that the majority had stretched the commercial-activity exception to fit the case.
     "Because RPE's sale of the Eurail pass is not attributable to OBB, Sachs has not alleged commercial activity 'by the foreign state,'" he wrote. "Indeed, even if the majority's theory of attribution were valid, the strict liability claims would still need to be dismissed because they are not 'based upon' the sale to Sachs in the United States."