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U.S. Ticket Sale Creates FSIA Nexus
The United States Court of Appeals for the District of Columbia found subject
matter jurisdiction in Kirkham v. Société Air
France allowing the case against the foreign government-owned airline to proceed in the United States. On November 22, 2005, the
court decided that the purchase of an airline ticket in the United States was sufficient to invoke
the commercial activities exception under the Foreign Sovereign Immunities Act
(FSIA) against an airline owned by a foreign nation, even without other activity in the United States relative to the substance of the complaint.
The District Court's analysis of jurisdictional facts included the merits of the plaintiff's claim
including breach, causation and duty of care, while the Court of Appeals reduced the scope of
jurisdictional facts to those facts that would establish a claim at all. Relying on Saudi
Arabia v. Nelson, 507 U.S. 349, 357 (1993), the Court of Appeals interprets Nelson's
standard of elements contributing to claims to be each fact necessary to establish a claim, rather
than the facts without which the plaintiff will lose.
Allowing this single element of commercial
activity to constitute a sufficient nexus for subject matter jurisdiction under the FSIA will have far
reaching consequences and bring into question what constitutes state control of commercial
entities in the future. - by Sally Laing, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Wed, / / Embassy Law Link
