Legal Case Summary

We'll hear argument first this morning, first this term, in case 131067, OBB Persona Vercaherd versus Sachs. Mr. Barton-Burio? Mr. Chief Justice and May it please the Court. This personal injury action is based upon an accident that occurred in Austria. If this Court agrees, there's no need to reach the other question related to agency, so I will start first with the based upon issue. In Nelson, this Court set forth a framework to analyze the based upon question. And this Court held that courts must begin their analysis by identifying the particular conduct on which the action is based, that the decision uses words such as basis, foundation, and gravamen. So here we should. In that case, there was a distinction between state activity, that is police activity, and the commercial activity in hiring the plaintiff. Here I think it's conceded that the activity running a railroad, that's commercial, so we don't have the commercial state action division. Yes, Your Honor, that's correct. Here there are two alleged commercial activities. One of them is the sale of the ticket in the United States, and the other one are the action omissions that resulted in the accident in Austria. So what I would suggest is that we look at the complaint and see what it is that the plaintiff has alleged. Just as a matter of background, suppose a hypothetical case, no foreign sovereign. It was in the private corporation in Austria. Would there then be jurisdiction under the due process clause in your view? You don't have to prevail on that issue, but as a background issue, do you have a position? Our position is that if OBB was a private entity, there would not be jurisdiction over OBB. There would not be general jurisdiction after this Court holding in Daimler, and there would also be. And Daimler is your best case for that proposition. Yes, Your Honor. Do you think that it's the same test? In other words, is the test a specific jurisdiction test here based on arising from that we are basically asking the same question as we would be asking if this were a foreign corporation? I don't believe so, Your Honor. Let me explain if I may why not

. Congress could have chosen the wording in the personal jurisdiction analysis and the case law, but they decided on another face based upon instead. So I believe that what this Court needs to do is give some guidance on that. Well, but why? I mean, it doesn't seem to me that that wording is very different from the wording that we've used in specific jurisdiction cases. The wording here is based on we've used a rising out of, sometimes we've used related to, and some respects, I mean, it's pretty clear that the FSAIA is meant to ensure that when a foreign government is acting as a commercial actor, it gets treated like a foreign corporation, and the language here is very similar, right? There's the insistence on a sufficient contact, a minimum contact, and then there is the insistence on a particular kind of relationship between that contact and the claim. So it seems, I guess the question is, why should we think of these two questions as it would be a little different? And I don't know, by the way, I mean, that it would hurt you if they were the same, because it might just be there would be no specific jurisdiction here, you know? But I guess I'm having trouble thinking why it is that there would be a different test. The reason why is because the FSAIA takes place of both the subject matter jurisdiction analysis and the personal jurisdiction analysis. Both are combined into one test. So although I would agree, certainly, that some aspects of the personal jurisdictional analysis are part of that test, it goes beyond that. It also goes into subject matter jurisdiction, which is a different set of policy determinations that Congress made, that are in some way overlapping of the personal jurisdiction questions, but I don't think they are completely aligned. I'm sorry, I don't even understand why we're talking about based upon. As Justice Ginsburg said, there's no dispute here that whether the based upon is this ticket sale or the operation of the train, both of them are commercial activities. Isn't the work in substantial contact with the United States? Isn't that what we should be looking at instead was this commercial activity substantial enough? The operation of the train and the ticket sale here. Did it have a substantial contact with the United States? There's a three-step analysis you're on, Eric Nelson. First, you have to identify the particular conduct, the actions, not the causes of the action, which is what the embankment court did. They focused on the legal claims. This court said you have to focus on the acts. Here it is. We did that in the context of deciding when something was a sovereign act as opposed to a commercial act. We know this is a commercial act, so I'm just confused. Why isn't the work, why shouldn't the work be done by substantial contact with the US? It's a three-step analysis. First, you identify the activity. Secondly, you decide whether it is commercial or not

. Whether it's commercial or substantial contact. So there are three steps. What I'm saying is that the ninth circuit aired. They didn't look at the conduct first. They looked at the legal claims. If you look at the commercial, it's commercial. It's commercial, but if you look at the conduct and you identify it as the accident in Austria, which is what the plaintiff claimed. In JA-15, paragraph 328, they alleged that there was an unsafe boarding platform, a gap at the platform, et cetera, et cetera. All of this goes to happen in Austria. Q. How do you suppose that this is that we determine whether it is based on commercial activity. Take their failure to one claim. Why isn't that based on something that occurred in the United States. You're just asking us to step back and say, well, in that case, we really think they're just trying to- they have a- they have a tort that occurred in Austria, a negligent tort that occurred in Austria, and they're just trying to plead around it with these other claims. Well, there's no allegation in the complaint that the failure to warn was something that happened in the United States. It's found in the same set of paragraphs, free-for-weight, that relate to the axon omissions in Austria. It also would make no sense to argue that there was a failure to warn in the United States because that would mean that the euro pass itself would have to warn about all conditions at hundreds of potential railroads stations in Europe. Well, it might be a claim that couldn't prevail, but why just that answer the question? Well, the failure to warn that's alleged relates to the facts that arise in Austria. And therefore, the cost of action arises in Austria because that's where the axon omissions occurred if one looks at what's alleged in the complaint itself. Would you agree and as you've been doing, take out the agency question, but would you agree if the- if what had happened here was that the ticket was not honored? You know, the- the plaintiff bought a ticket and the ticket was not honored. And- and the suit was where the ticket was purchased. Would you agree that that's based on- if this was a breach of contract case- Dessert breach of contract- and the breach- the allegation of the breach was that when the respondents showed up, they did not honor the ticket, that would be based upon an activity in Austria because it's in Austria that that- In Austria? Not honored

. Even though she bought the ticket in the United States, you think even the breach of contract case could not be brought in the United States. Correct, because the- the wrongful act, the breach arises in Austria. What about- why is that- I'm sorry. Because suppose we disagree with that answer, do you lose the case? I'm sorry. Suppose we disagree with the answer that you gave to Justice Kagan. Suppose we disagree that that suit has to be in Austria. Can you still prevail on the facts of this case? The hypothetical was the ticket is not out. Suppose we disagree with your answer and you still prevail on the facts that it did, in fact, occur in this case? Yes, but I would still prevail based on the agency argument that we have presented. But could- You go back and explain to me what- I'm sorry. You- you'd lose on- on the other point. You- Well, I know- Well, I know- Well, you'd lose on the other point if- if that hypothetical came out the other way. No, I do not. I believe, let me clarify your honor if I may. My answer to Justice Kagan was that I believe that a breach of contract claim for this honor of the ticket in Austria has to be brought in Austria. Because that's where the breach occurred that gives rise to the cause of action. Justice Kennedy said to me, suppose that we disagree with you, can you still win the case and my answer was I could still win I believe under the agency, alternative argument. What about under the argument you're first making? Not if the court ruled against me, no. On that hype, why? I mean, couldn't you make the argument that the question ought to be decided not by where the contract was breached but where the contract was made? I mean, we could hold that and that would not affect your case. That's true. So I do not believe that a breach of contract claim under the facts in area that you provided your honor would give rise to a claim in the United States because the breach happened would have happened in Austria. Councilor, I want to come back to Justice Kagan's speculation of whether based on is nothing more than a due process. It seems to me that the definition of commercial activity carried on in the United States by a foreign state is the due process test

. The definition is a commercial activity carried on in the United States by a foreign state means commercial activity carried on by such state and having substantial contact with the United States. That sounds to me like the due process test. But what is required here is not just a commercial activity carried on in the United States. It has to be based on a commercial activity carried on in the United States. And it seems to me that is something added to the constitutional test. Yes, Your Honor. And that's why I started my discussion by referring to this holding, the holding of this holding court in Nelson, which has to look at the particular conduct. The particular conduct that issue is not the sale of the ticket. It's the acts and omissions that resulted in the acts and the notion of the act. What if there are acts or omissions and two, let's say you have a flight from New York to Vienna. And in New York someone negligently sets or whatever they do with the landing gear. Okay, so then the plane takes off and then in Vienna because of the negligence in New York It's a rough landing somebody gets a concussion. Where is the gravament of the action in that case? Can you bring that in in the United States? Potentially you could bring it in the United States and the difference between your scenario and this case is that in that scenario The service was provided started in starting in the United States There's contact with the United States because the foreign airline came here and conducted a commercial activity in the United States Tort if the negligence occurs in one place and the impact is the other you could bring the suit in either Place as far as on no sense of personal jurisdiction Either injury in the state or Conduct in the state causing injury outside it. Those are typical Long-on-basis of jurisdictions so the chief cyber vet of over the negligence occurred in the United States That you agree would be a case that could be born in the United States because the relevant conduct occurred there Correct in that case correct. I don't understand then what gravament means in an else in decision We the gravament means one place right or do you think you could have a lot of different? I mean if it's the gravament of your complaint, I think you have to choose don't you wonder the other? Well, I would I I wasn't I would understand your example Chief Justice to mean that the act that cost injury was whatever they didn't do upon takeoff to the plane or Or in say understood your example that cost of that injury was in the United States so can you have more than one place Under the based upon analysis in Nelson or has you have you got to decide? There's only one place where you can bring the action Well the airline example and this is something I thought about It's somewhat a complicated example because we have a conventions in our national treaties that deal with with airline cases I would imagine that theoretically there could be one more more than one location but not on the facts of this case In the chief justice's example he He stated that there was negligence in the United States, but what if there's no Evidence of that there's a there's a there's a problem with the landing gear when the plane lands in Austria and the claim is that there was a failure to Inspect in the United States or a failure to do proper maintenance in the United States Would that be different that may be different again because the Transportation was provided from the United States geographically There's no doubt in that question that commercial act was carried on in the United States by the airline and that's different here Well, I suppose it's it's it's proper to say that where you have negligence that causes an injury the the complaint is based on both You you don't have liability without the negligence. You don't have liability without the injury So why can't you say based on in that situation? Would enable either one to To sustain the cause of action in the airplane example perhaps either jurisdiction in this example If you look at the complaint and were guided by the allegations of the complaint it is the acts are only a ledge to have Happen and the omissions to have happened getting back to our earlier discussion questions from me and from Justice Kagan It's seemed to me you have to say the due process Analysis is insufficient under this statute because then fill in the blank and Justice Scalia was asking you the same question Yeah, but one answer might be because otherwise there would be no necessity for a statute Dupras is applies anyway, but the counter argument is well there has to be because the statute makes the distinction between sovereign and commercial one So it has a real purpose Right that due process analysis is incorporated into the statute But it's not the only thing to think about for example You did answer I think you did answer a rendering and Justice Kennedy's question somewhat academic that there would be no specific jurisdiction in the United States if all that happened here was a ticket purchase from an agent Where the injurious conduct or occurred abroad and the railroad operate solely abroad You you answered that whether it were the due process specific jurisdiction inquiry all the foreign sovereign and communities act the answer would be the same that the ticket sale in the United States was not enough Yes, your honor, but of course my question was supposed that the due process analysis is sufficient to sustain jurisdiction then what then this based on still have a separate meaning as a separate requirement that has to be met and is not meant here and if so why? It has not been met here because from a general jurisdictional person The not general jurisdiction I was really talking about specific jurisdiction and of course Justice Scalia is absolutely right with respect to general jurisdiction that all you look at is the contacts but with respect to specific jurisdiction this is a company that doesn't have pervasive contacts it's critical to the due process analysis that there be a relationship and a real relationship between the particular contact with the United States and the lawsuit in the exact same way that this statute focuses on and so again I don't know if it hurts you it might be as Justice Ginsburg says that there wouldn't be some specific jurisdiction here for a corporation but but but why shouldn't we treat those two things exactly the same way? There's if I may answer that two parts of your question first there's no specific jurisdiction if OBB were a private entity because that respondent is not suing for breach of the ticket is not alleging that it was not on her she's suing for something that happened in Austria the specific acts happen outside of the United States Yes, well that's an answer for why there's no specific jurisdiction here and you could make the exact same answer in the completely private context and you could well be right I want to ask Mr. Fisher about that but it's not an answer why the tests should be different The test my belief is that the test should incorporate two process analysis but because we are also dealing with subject matter jurisdiction which is a different analysis and personal jurisdiction there are other policy considerations the policy considerations decisions that Congress made were based on territory if one one if one looks at the first the second and the third clause they're all territory based distinctions in the case a Miranda Hess this court held that toward actions are meant to be encompassed by the second section of the of the exception the non-commercial towards exception that requires that the toward happening that United States in order to be to have subject matter on personal jurisdiction it wouldn't fit here just as Ginsburg referred to direct effects that would come under the third clause which deals with commercial activity outside of the U.S. again a territorial line having an effect here the first clause draws the territorial line here and says that commercial activity has to happen in this side of the line within the United States and that's what we don't have here. I would like to what provisionary referring to? I'm referring to the first clause of the commercial activity the exception that it requires that the commercial activity be conducted carried out in the United States that means that within the territory of the United States and I reached that conclusion by comparing it to the third clause which refers to commercial activity outside of the United States having a direct effect in the United States here. Now if I may just say one point about agency there's no dispute here that if the definition in the act applies R.P

. doesn't fit within it. Now this court has recently held that we are guided by the language of the statute. I understand that arguments have been made by my colleagues and also by the Ninth Circuit that there's a difference between invocation of immunity and attribution. This is the point I want to make. Section 1604 is the invocation section. That's the section that states that certain people those defined as the foreign state can invoke immunity. Section 1605 is an attribution section. It says who's asked the private of immunity and because foreign states are defined term we are limited to the limitations in the FSAA. In the alternative if this court were to move away from the definition I believe we would all agree that there has to be some element of control. That test that this court develops for agent has to have either the degree of control in Bansek or something lesser but all agency law requires control and that's where the M bank court missed a mark. They didn't require any control and if one requires control it has to be reversed because there was no control here. If there are no pending questions I would appreciate you serving the balance of my time for rebuttal. Thank you, Council. Mr. Needler? Mr. Chief Justice and may it please the court. I'd like to start with the point about whether the FFFA SIA simply incorporates due process standards and we think it does not. It contains its own statutory terms which require interpretation. Congress did not simply incorporate the DC Long Arm Statute or due process principles or phrase the statute in that way. It enacted specific statutory terms. And it's still is it the base of the upon language or the substantial context? It's both. It's both and in the United States which is an important point I want to make

. One of the reasons it's very different from just due process is because this, the FFSA governs subject matter jurisdiction and personal jurisdiction to be sure but based upon a determination of immunity of a foreign state. And it does that by drawing as was mentioned before a strict territorial line that runs throughout all the exceptions. For example, the intention that the tort exception applies only to torts in the United States and the property exception concerns property in the United States. And the focus of the commercial activity exception is also at least under clause one, well, all of them, but clause one is commercial activity in the United States that also has a substantial connection but the action has to be based upon as Justice Scalia or the other. Well, but how is based upon different from the language we routinely use in specific jurisdiction cases? In other words, it just seems as though Congress in line with its objective of treating foreign governments engaging in commercial activity in the same way as they would be treated in the foreign corporations case in line with that objective, use language that's virtually synonymous with the language that we use in specific jurisdiction cases. But it did it in the context of a statutory structure that is designed to protect foreign sovereign immunity and not to draw U.S. courts into what could be very sensitive international questions of having U.S. courts pass judgment on what happens in a foreign country for example. Well, it did so in the context of distinguishing between commercial activity and sovereign activity. In Nelson, actually, the pertinent paragraph in Nelson that discusses based upon as counsel pointed out, the Court said you start with what is the conduct that that the suit is based upon. And the Court said the conduct there was the conduct that took place in Saudi Arabia. And then it had a discussion that said to be sure there was recruitment that preceded that and that recruitment put the employee in the position to be in the hospital in Saudi Arabia where the conduct occurred. But the focus was on, as the Court said, those torts in Saudi Arabia, not the antecedent commercial activity in the United States. That discussion in the Court's opinion preceded its discussion of the distinction between commercial activity and sovereign activity. It had to do with what is the focus of the claim and there the Court was focusing on tort claims that happened outside the United States. So we think it's very important in this case to distinguish between tort claims and contract claims. If they have a tort claim that has one element in the United States, how does a Court determine whether the gravament of the claim is in the United States or elsewhere? I think focusing on what the defendant's conduct is that actually caused the injury. And here, the only difference between this case and Nelson is the argument that the purchase of the ticket, which is the, by the way, the only commercial activity that was relied upon below the Ninth Circuit says this at pet app 13 and footnote 4, respondents now trying to broaden that into the entire operations of the railroad, which would actually be an assertion of general jurisdiction, anything that would arise in the operation of a railroad in Austria could be the subject of the suit if it was deemed to have substantial connection. If we want to give face upon a separate substantive effect in this statute so that it means something more substantial than what would suffice for Duke President, what body of law case law do we look to? I think in Nelson. I'm not about based on what kind of cases am I supposed to read

. Well, in Nelson itself, I think it's very instructive on this because, first of all, the Court in Nelson did not describe what it was doing as simply applying due process standards. It was applying the statutory terms. And again, it focused on the particular conduct, and this goes to Justice Alito's question as well, it focused on the conduct that really caused the injury, which in that case was the, or the intentional torturing happening. So, Sumishtani? Or Abia? In my contract, typo, if the, if the suit was a breach of contract action, do you think it would be based upon? Just a straight, like you don't, you didn't honor my ticket. On a contract claim, I think that there will, may well be a contract claim here, but I think it's important to recognize that a breach of contract claim just because there is some connection with the United States does not automatically, even for due process purposes. A, a, some connection of a contract to the forum does not enough. The Court made that point in Burger King about contracts, which was discussed in the, and the Court's Walden versus Fiori case. Ms. Nene, before you, before you finish, you bring up the interest in relations with other nations. Do you know, I mean, there are other nations that have similar legislation to the Foreign Software and Immunities Act. Do we know how this case would come out saying, Canada, Germany, or France, under similar legislation? The European Convention provides for jurisdiction over tort claims, which this, which this basically is, only with respect to torts that arise in the territory, which is, which is the case here in our own tort exception, which is an important going back to Justice Kagan's question, an important reason why this is different from due process. Tort claims under the FSAAA, under, under exemption five, paragraph A5, arise only when the tort occurs in the United States. And even business torts, the House report refers to business torts in the United States because there was a Congress was drawing a territorial line. And we forgot to have the Netherlands and Switzerland to file the brief, haven't they, in which they said that this injury, the claim that's pursued against here, the facts that underlie it, are based upon activity that took place in Switzerland. Right. And so they wouldn't, under their law. And is there any indication, I saw none in any of these briefs, that there's any country in the world that would reach a different result? For lawyers on both sides, and I'm sure one of the lawyers would have told us if they'd found a country that would have reached it. And the same general point is true in the UN Convention on Immunity with respect to tort claims. Mr. Needer, how about there is a contract claim in this lawsuit? So there's a, is a kind of warranty of fitness kind of claim? How, how about that? Why, if you think that the, let's assume that the contract claim, which is like you did an honor my ticket, but there would be personal jurisdiction over, how do we separate out the, the warranty of habitability or fitness claim? Because I think, I think that's very parallel to what this Court confronted in the Nelson case where the, the Court said the failure to warn, there was a claim there too, a failure to warn about the, about the potential tort. And the, and the Court said it would not recognize jurisdiction by that sort of faint of language. You can't recharacterize something that is basically a tort abroad by claiming that there was a failure to warn about the fact that we think that through here

. Is that a typical thing or an unusual thing to do in jurisdiction cases? In other words, to say, we're just not going to look at this claim by claim. We're going to ask about the whole gist of the lawsuit. We, we think that at least for tort claims, again, under our position, you look at the foundation of the claim, the gravamen of the claim, and applying that principle of tort claims anyway, it's proper to look about where the, where the conduct occurred, the torsious, the injury causing conduct occurred. Can the gravity in more than one place? Is it, is the based upon language, does it identify a single place, or could it be based upon activity in, in two jurisdictions? Well, it, it could be based upon activity in two jurisdiction, two jurisdictions. The House report describing this talks about commercial activities occurring in whole or in part in the United States. But not in the airline case. You would not say that the airline case, the gravamen, was the negligence in the United States and the injury when the plane landed. I, I think depending on where the tort occurred, it may, it may just be in the place where the, where the negligence occurred, but I do want to say that for airlines. It can't be both. It could be, it could be because the question under the FSIA is whether you can sue in the United States, whether you can sue abroad is not determined by based upon language in the, in the FSIA. But with respect to airlines, those, those are covered by the Montreal Protocol, which provides a variety of jurisdictions for suits to be brought up. Well, you're not suggesting the result be different if it were a boat, are you? No, I, no, but the hypotheticals, a lot of them, the transporter have had to be a private airline company. Would there be jurisdiction here? Sorry. I think it would be a good idea for the Court not to address the due process and just focus on the, on the statutory terms here because the question of virtual presence, like purchasing a ticket on the Internet, can arise in all sorts of ways for due process purposes and private cases. And here we have a statute to focus on. Thank you, Mr. Neeler. Mr. Fisher? Mr. Chief Justice, may I please the Court? I'd like to start with just a soda myor's question, why I think it's been asked a couple of other times today, which is, what would the answer be if this were a private defendant? And it footnote 11 of our brief on page 33, we explain why the answer would be that there would be specific jurisdiction. And in the Gibson-Dunne Amicus brief, the pages 25 to 29, they give a fuller explanation. What? What? What I'm as deficient, we, there's one contact with the United States

. A pass is bought from a travel agent in Massachusetts. A pass covering 30 odd railroads. That's all that happened in the United States. All of the relevant conduct, the Torsche's conduct occurred abroad. I don't know of a single case where we have said specific jurisdiction can be based on a connection that had nothing to do with the injuries conduct. Mr. Justice Ginsburg, I think there are plenty of cases that support the proposition that when a company markets and sells a product in a jurisdiction that creates specific jurisdiction. That's what OBB did through its agent, RPE, is marketing and sell its product. I'm sorry, thing. Let's assume this. Let's assume that I get a brochure from the Vienna Opera Company, and I send back the order form I'd like to buy tickets, okay? Now, for sure, if the Vienna Opera Company refused to honor my tickets, I have a claim and it arises out of the fact that they have marketed my tickets in the United States. But now they honor my tickets. And I go up the stairs and I slip in a puddle and I injure myself. What does that have to do with the only contact that they've had in the United States? I mean, at that point, you're just saying it's a butt-four test and everything would be included. But I don't know of a sensible specific jurisdiction analysis that would run like that. I agree with everything you said, but this case is different because our lawsuit is based on the duty of safe passage that gave rise in that sale, in that ticket sale. So we're suing based on the promise and the ostrich in the Austrian case of the opera. There is an implied warranty that the opera is fit for the purposes, the opera house is fit for the purposes which it serves, okay? Same thing. Not too hard to draft that. I'm not sure. And if somebody did draft that, it would certainly be subject to a 12-B6. What's the difference between saying that they have to warrant their product, which is an opera house, to be safe, to say that they have to warrant their trains safe for passage? I can't see a difference

. And it seems to me it's very normal in a contract to say that the seller of the product is implicitly warranting fitness, isn't it? Well, so all I can say is in this case, we're suing on the exact warranty that gives rise from this ticket sale, just as prior. And I think that's- I take it to go back to the questions you were asked from your answer. You have found no case in any country where a waiver of sovereign immunity based on commercial activity supports you. And if so, what is that case? Switzerland and Britain, a rather Netherlands say no. EU treaty says no. The UN Charter says no. And they have all these lists of language which while not absolutely against you, leans against you. So I want to know what is there in the law of sovereign immunity, particularly, that argue leans in your favor. So Justice Breyer, let me be clear about what isn't as not in that brief. There are no cases that I don't think any party has cited. What that brief says is that based on the language in various conventions, that this claim wouldn't be able to be brought somewhere else. But the language in those conventions are things like a rise under based upon- and so you basically end up in the same situation as you are here, which is having to decide whether this claim can be brought. Remember, that brief also alleges and it actually spends more time alleging that there's no proper principal agent relationship, which I think is the Court is probably realized is not a very credible argument. So I think you should be careful about putting too much weight on a brief that simply cites some treaty language. But I think the point I want to make for the hypotheticals and to bring it back to my case. And I also tie in the contract. But I'm taking your answer to my question being, we have none. We have none and they have none. I have not found a right answer. All right. All right. You can ask him on rebuttal. Could you tell me your adversary claims you've been trying to change what your claim is? Is it based on the ticket sale or is it based on the operation of the train? I think the better reading of the word activity in the statute for the reasons we describe in our brief is the overall integrated activity of running the railway train enterprise, which includes selling the products and delivering the rail. I see our interest, but I'm thinking there are 190 Samad countries in the world. Many of them do have governments that run various kinds of enterprises when they come to the United States. Perhaps not being totally conversant with American law. They might think, if my commercial activity in the United States really gives rise to some problem in the United States, I expect to be sued. But where what really gives rise to it, you see, I have to use language like that, takes place in my country. I expect it will be my courts that will deal with it. Well, I don't know why any country would have thought that about this country's law, because before this, you know, up until this point, the law in the lower courts, the DC Circuit and the second circuit, and most specifically, have held that in this exact situation there is jurisdiction. Well, they would have read, if they had read our opinion in Nelson, that would have given them a good inclination to read sovereign immunity the way Justice Breyer suggests. No, I'm glad you asked about Nelson, Mr. Chief Justice, because the paragraph in Nelson that Mr. Neeler is referring to is distinguishing sovereign activity from commercial activity. The Court in Nelson did not have before it and was not concerned with the geographic nexus, and you know that, because in that paragraph, where it lists the things upon which the Nelson's claim is not truly based, it lists not only the recruitment in the United States, but the actual employment in Saudi Arabia. Well, he has a paragraph in Nelson, what in one sentence of which helps you, that he says the Nelson's were in a, you know, they negotiated with the Nelson's in the United States, they entered into a contract in the United States and Nelson's are heard abroad. I take it, that's the basis of it. And this helps you, but he says before, even taking each of the Nelson's allegations about the recruitment and employment is true, those facts entitle the Nelson's to nothing. Under their theory of the case, which isn't contract, but he goes on to say, it's these torts which happened in the hospital abroad and not the arguably commercial activities that preceded their commission that formed the basis for the Nelson's suit. So the basis for, you say, and so that's why I'm thinking it does not help you. When the Court said the arguable commercial activities that preceded it, they were talking not only about the recruitment in the United States, but also the employment itself in Saudi Arabia. And they were distinguishing that from the police activity of seizing somebody and holding him in jail, which was, what the case was really about, which were sovereign activities. So the Court in Nelson, Mr. Chief Justice, to be clear, I'm not saying Nelson supports me

. Could you tell me your adversary claims you've been trying to change what your claim is? Is it based on the ticket sale or is it based on the operation of the train? I think the better reading of the word activity in the statute for the reasons we describe in our brief is the overall integrated activity of running the railway train enterprise, which includes selling the products and delivering the rail. I see our interest, but I'm thinking there are 190 Samad countries in the world. Many of them do have governments that run various kinds of enterprises when they come to the United States. Perhaps not being totally conversant with American law. They might think, if my commercial activity in the United States really gives rise to some problem in the United States, I expect to be sued. But where what really gives rise to it, you see, I have to use language like that, takes place in my country. I expect it will be my courts that will deal with it. Well, I don't know why any country would have thought that about this country's law, because before this, you know, up until this point, the law in the lower courts, the DC Circuit and the second circuit, and most specifically, have held that in this exact situation there is jurisdiction. Well, they would have read, if they had read our opinion in Nelson, that would have given them a good inclination to read sovereign immunity the way Justice Breyer suggests. No, I'm glad you asked about Nelson, Mr. Chief Justice, because the paragraph in Nelson that Mr. Neeler is referring to is distinguishing sovereign activity from commercial activity. The Court in Nelson did not have before it and was not concerned with the geographic nexus, and you know that, because in that paragraph, where it lists the things upon which the Nelson's claim is not truly based, it lists not only the recruitment in the United States, but the actual employment in Saudi Arabia. Well, he has a paragraph in Nelson, what in one sentence of which helps you, that he says the Nelson's were in a, you know, they negotiated with the Nelson's in the United States, they entered into a contract in the United States and Nelson's are heard abroad. I take it, that's the basis of it. And this helps you, but he says before, even taking each of the Nelson's allegations about the recruitment and employment is true, those facts entitle the Nelson's to nothing. Under their theory of the case, which isn't contract, but he goes on to say, it's these torts which happened in the hospital abroad and not the arguably commercial activities that preceded their commission that formed the basis for the Nelson's suit. So the basis for, you say, and so that's why I'm thinking it does not help you. When the Court said the arguable commercial activities that preceded it, they were talking not only about the recruitment in the United States, but also the employment itself in Saudi Arabia. And they were distinguishing that from the police activity of seizing somebody and holding him in jail, which was, what the case was really about, which were sovereign activities. So the Court in Nelson, Mr. Chief Justice, to be clear, I'm not saying Nelson supports me. I think Nelson simply doesn't answer this question because you were concerned in that case with sovereign versus commercial, not geographic nexus. So in line with the discussion we had earlier about specific jurisdiction, is your argument that general jurisdiction is enough to support based upon under the statute? No, your honor. I think I thought you talked about just all of the different commercial activities that the Austrian airline engaged in the United States. And if it's all of the different commercial activities, that sounds like general jurisdiction, not the specific jurisdiction. I think OBB is subject to jurisdiction under the, or I'm sorry, I should say does not have sovereign immunity under the FSIA for its train operation of selling tickets and we're getting people rides on the trains. It wouldn't be subject to jurisdiction if it had some, if it had a mining enterprise on the side or something else that didn't even touch the United States. Well, so most activity. Yes, but in point of fact that's all OBB does. So effectively your argument is an argument that OBB is subject to jurisdiction in a general jurisdiction kind of way with respect to everything that they do. And I think what the Chief Justice is suggesting is like that seems wrong. Well, let me say two things, Justice Kagan. Thank you. I think that is the fairest reading of the statute. And Mr. Neether was talking about the House report. One of the examples in the House report of a commercial activity was running an airline. It's hard to distinguish running an airline from running a train system. So terms of the statute do cover that. Justice Lee Demand, I'd just say one more thing to Justice Kagan, which is if you didn't agree that the term commercial activity covered the entire enterprise, then you would ask the question whether the activity of selling tickets is enough to create a based upon argument in a specific jurisdiction since we back to the conversation we've been having. Mr. Saks was Australian and she bought this ticket on the Internet in Australia. Would you say that there would be no sovereign immunity in the suit in the United States? Well, there wouldn't necessarily be sovereign, there may not be sovereign immunity under the terms of the act, but obviously there would be a number of reasons why that case couldn't be brought in the United States

. I think Nelson simply doesn't answer this question because you were concerned in that case with sovereign versus commercial, not geographic nexus. So in line with the discussion we had earlier about specific jurisdiction, is your argument that general jurisdiction is enough to support based upon under the statute? No, your honor. I think I thought you talked about just all of the different commercial activities that the Austrian airline engaged in the United States. And if it's all of the different commercial activities, that sounds like general jurisdiction, not the specific jurisdiction. I think OBB is subject to jurisdiction under the, or I'm sorry, I should say does not have sovereign immunity under the FSIA for its train operation of selling tickets and we're getting people rides on the trains. It wouldn't be subject to jurisdiction if it had some, if it had a mining enterprise on the side or something else that didn't even touch the United States. Well, so most activity. Yes, but in point of fact that's all OBB does. So effectively your argument is an argument that OBB is subject to jurisdiction in a general jurisdiction kind of way with respect to everything that they do. And I think what the Chief Justice is suggesting is like that seems wrong. Well, let me say two things, Justice Kagan. Thank you. I think that is the fairest reading of the statute. And Mr. Neether was talking about the House report. One of the examples in the House report of a commercial activity was running an airline. It's hard to distinguish running an airline from running a train system. So terms of the statute do cover that. Justice Lee Demand, I'd just say one more thing to Justice Kagan, which is if you didn't agree that the term commercial activity covered the entire enterprise, then you would ask the question whether the activity of selling tickets is enough to create a based upon argument in a specific jurisdiction since we back to the conversation we've been having. Mr. Saks was Australian and she bought this ticket on the Internet in Australia. Would you say that there would be no sovereign immunity in the suit in the United States? Well, there wouldn't necessarily be sovereign, there may not be sovereign immunity under the terms of the act, but obviously there would be a number of reasons why that case couldn't be brought in the United States. There would not be immunity because it was based on the running of the railroad. Right. Which, on taking everything else the same has substantial contact to the United States. But all the four we're talking about in this case is immunity. Section 1330, where it has jurisdiction over foreign states, says that jurisdiction has to be in personum. And obviously that would carry with it the requirements for in personum jurisdiction, which would require a contact in this country. And this is one thing I want to make sure is the court understands to bring us back to the hypotheticals we were talking about earlier and to tie in the contract hypothetical. It's important for the court to understand there are all manner of cases where a duty is created in this country by way of a foreign states commercial activities and then injuries or breaches occur abroad. In fact, this is rather the oddball case. The more typical case is a high finance deal like the bonds case in the welltover case, other kinds of international finance and loans. There are many employment cases where the United States citizens sign of employment contract where are lured abroad, study abroad programs and the educational sphere, all kinds of situations where a duty is created in this country. But then all the events that the lawsuit turned out to be about happen abroad. Mr. Fisher, you recognize, I think you recognize in your brief that this you can call out a question of first impression. You said, I believe, the meaning of based on in this context is an open question. And if it isn't open question, why should we allow a foreign carrier to be sued in the United States for acts or omissions overseas and negligent conduct occurred overseas, when the only way the single link is a ticket, a pass purchased from a travel agent in the United States. For all the reasons I was just saying, Justice Ginsburg, because it is utterly common for duties to be created in this country. Here the duty of safe passage and of utmost care and then the breach to a corroborate. My friend on the other side was correct to say this case is indistinguishable from contract cases. There are all kinds of cases where duties are created in this country and then breach to broad. But if that's true, I don't understand why you answered my hypothetical question the way you did, because in my hypothetical question I thought you said that there would not be jurisdiction to sue the United States when I slip and fall in Vienna. But you can make the same argument

. There would not be immunity because it was based on the running of the railroad. Right. Which, on taking everything else the same has substantial contact to the United States. But all the four we're talking about in this case is immunity. Section 1330, where it has jurisdiction over foreign states, says that jurisdiction has to be in personum. And obviously that would carry with it the requirements for in personum jurisdiction, which would require a contact in this country. And this is one thing I want to make sure is the court understands to bring us back to the hypotheticals we were talking about earlier and to tie in the contract hypothetical. It's important for the court to understand there are all manner of cases where a duty is created in this country by way of a foreign states commercial activities and then injuries or breaches occur abroad. In fact, this is rather the oddball case. The more typical case is a high finance deal like the bonds case in the welltover case, other kinds of international finance and loans. There are many employment cases where the United States citizens sign of employment contract where are lured abroad, study abroad programs and the educational sphere, all kinds of situations where a duty is created in this country. But then all the events that the lawsuit turned out to be about happen abroad. Mr. Fisher, you recognize, I think you recognize in your brief that this you can call out a question of first impression. You said, I believe, the meaning of based on in this context is an open question. And if it isn't open question, why should we allow a foreign carrier to be sued in the United States for acts or omissions overseas and negligent conduct occurred overseas, when the only way the single link is a ticket, a pass purchased from a travel agent in the United States. For all the reasons I was just saying, Justice Ginsburg, because it is utterly common for duties to be created in this country. Here the duty of safe passage and of utmost care and then the breach to a corroborate. My friend on the other side was correct to say this case is indistinguishable from contract cases. There are all kinds of cases where duties are created in this country and then breach to broad. But if that's true, I don't understand why you answered my hypothetical question the way you did, because in my hypothetical question I thought you said that there would not be jurisdiction to sue the United States when I slip and fall in Vienna. But you can make the same argument. Well, there was a duty created in the United States and that's what I'm suing on. I think when I answered your question, I was imagining there wasn't a duty created, maybe as Justice Breyer amended the hypothetical. It might be. The only thing that's happened in the United States is that I've purchased a ticket there. That's what I've done. So I take it that your argument is that that purchase of a ticket gives rise to a duty which is then violated when I slip and fall in another country. I would say if the plaintiff alleges that in the lawsuit, then there would not be sovereign immunity. And then Justice Alito, I think as he was saying earlier, you'd have perhaps a very strong 12-B6 argument that there's no such state law claim that actually gave rise in that context. If you get on the train in Vienna and you buy your ticket in Vienna and you get on the train in Vienna, there is on the train operator some duty of care, isn't there? Without regard to, in other words, there's nothing special about buying ticket in the United States that gives rise to a unique duty of care that's any different from the duty of care that the railroad owes its passengers in Austria. I think that's right, Mr. Chief Justice. As long as you're talking about buying a ticket one place to the other, but of course, that's true of any seller of any product that they stand in, they offer the same thing depending on where you buy it, but the critical thing is where did they sell their ticket? They reached out to this country, and it is worth answering a question with this important point, which is the product that they sold to Miss Sachs is not available to Austrian citizens. This is a specially tailored product available. I understand, but there's nothing unique about the standard of care based upon whether it's a urral pass or something else, is there? I'm just trying to suggest that you're putting an awful lot of weight on the standard of care created by the purchase of the ticket, and that's no different here, or whether the ticket was purchased in Austria. It would make no difference to what standard of care she would allege if there were some other basis for jurisdiction in the United States. That might be correct, but it is important not to lose sight of the fact that she didn't buy her ticket there, OBB reached out into this form, and just going back to this Court's ordinary due process cases, when a business purposefully evails itself of the protections and the opportunities of the military. Sotomayor, the purposefully availed of tests relates to specific jurisdiction, and there has to be an incident connecting if there is that connection. Then you must have an addition purposefully availed of, but purposefully availed of standing alone doesn't give you general jurisdiction, and it doesn't give you specific jurisdiction. Sotomayor, fair enough, but you have to have a contact, and that's the substantial contact test in this case. But you also have to have a relation. And you have to have a relationship, which we do, because we purchased it here. Well, let's say that I don't accept that argument

. Well, there was a duty created in the United States and that's what I'm suing on. I think when I answered your question, I was imagining there wasn't a duty created, maybe as Justice Breyer amended the hypothetical. It might be. The only thing that's happened in the United States is that I've purchased a ticket there. That's what I've done. So I take it that your argument is that that purchase of a ticket gives rise to a duty which is then violated when I slip and fall in another country. I would say if the plaintiff alleges that in the lawsuit, then there would not be sovereign immunity. And then Justice Alito, I think as he was saying earlier, you'd have perhaps a very strong 12-B6 argument that there's no such state law claim that actually gave rise in that context. If you get on the train in Vienna and you buy your ticket in Vienna and you get on the train in Vienna, there is on the train operator some duty of care, isn't there? Without regard to, in other words, there's nothing special about buying ticket in the United States that gives rise to a unique duty of care that's any different from the duty of care that the railroad owes its passengers in Austria. I think that's right, Mr. Chief Justice. As long as you're talking about buying a ticket one place to the other, but of course, that's true of any seller of any product that they stand in, they offer the same thing depending on where you buy it, but the critical thing is where did they sell their ticket? They reached out to this country, and it is worth answering a question with this important point, which is the product that they sold to Miss Sachs is not available to Austrian citizens. This is a specially tailored product available. I understand, but there's nothing unique about the standard of care based upon whether it's a urral pass or something else, is there? I'm just trying to suggest that you're putting an awful lot of weight on the standard of care created by the purchase of the ticket, and that's no different here, or whether the ticket was purchased in Austria. It would make no difference to what standard of care she would allege if there were some other basis for jurisdiction in the United States. That might be correct, but it is important not to lose sight of the fact that she didn't buy her ticket there, OBB reached out into this form, and just going back to this Court's ordinary due process cases, when a business purposefully evails itself of the protections and the opportunities of the military. Sotomayor, the purposefully availed of tests relates to specific jurisdiction, and there has to be an incident connecting if there is that connection. Then you must have an addition purposefully availed of, but purposefully availed of standing alone doesn't give you general jurisdiction, and it doesn't give you specific jurisdiction. Sotomayor, fair enough, but you have to have a contact, and that's the substantial contact test in this case. But you also have to have a relation. And you have to have a relationship, which we do, because we purchased it here. Well, let's say that I don't accept that argument. Okay, let's just for a moment assume that on a straight negligence claim, the idea that a negligence claim arising from an accident in Austria arises, let's say I think it arises from the accident in Austria, it does not arise from the purchase of a ticket in the United States, okay? Now, I guess there's still a question as to whether your warranty claims ought to be treated differently. And I take it what Mr. Needler has said about that is no, they shouldn't be. That's just fancy pleading. It's just a way of converting a negligence claim into a contract claim. It's the same kind of thing that happened in Nelson that we refused to allow. Why isn't that right? It's not right because what you were worried about in Nelson is artful pleading to get around true sovereign immunity. In other words, to challenge sovereign acts dressed up as something else. Here, there's no allegation that we're challenging sovereign acts. Everybody agrees we're challenging commercial acts. There's only the agiographic nexus question. So we complete a tort, however we like, subject to rule 12b6, which they can make on remand. And Mr. Chief Justice, maybe I could turn back to one of your questions, because I think it further highlights the difficulty with the other side's test. It has to be enough for a duty to create a cause of action, we say, because otherwise you're left with this Grovement test. And either Grovement test has to mean one of two things. Either it has to mean that only one particular place can be the Grovement, which is the way I understood it from their briefing. But as the Court, I think, is figuring out from this argument, you get an all heaps of troubles with contracts, employment, all kinds of other things where the injuries occur abroad, and how on earth is the Court to determine where the Grovement is? On the other hand, if Grovement is sort of a Grove Persons test, so that you can have many multiple places where a claim can be brought, then I'm at a loss to understand how is any improvement over the one element. How does it work with the domestic contract and ordinary domestic contract entered into in Nevada, and the breach of the contract, which consisted of a failure, for example, to deliver goods to San Francisco, took place in California, and the lawsuit is brought in Nevada. How does that work? They move, well, how does it happen? Under due process, you'd have jurisdiction in Nevada. I know that, but I mean, where does the Grovement? Yeah, yeah. Is that not come up as to what law applies as to a factor in foreign non-convenient? No, it doesn't

. Okay, let's just for a moment assume that on a straight negligence claim, the idea that a negligence claim arising from an accident in Austria arises, let's say I think it arises from the accident in Austria, it does not arise from the purchase of a ticket in the United States, okay? Now, I guess there's still a question as to whether your warranty claims ought to be treated differently. And I take it what Mr. Needler has said about that is no, they shouldn't be. That's just fancy pleading. It's just a way of converting a negligence claim into a contract claim. It's the same kind of thing that happened in Nelson that we refused to allow. Why isn't that right? It's not right because what you were worried about in Nelson is artful pleading to get around true sovereign immunity. In other words, to challenge sovereign acts dressed up as something else. Here, there's no allegation that we're challenging sovereign acts. Everybody agrees we're challenging commercial acts. There's only the agiographic nexus question. So we complete a tort, however we like, subject to rule 12b6, which they can make on remand. And Mr. Chief Justice, maybe I could turn back to one of your questions, because I think it further highlights the difficulty with the other side's test. It has to be enough for a duty to create a cause of action, we say, because otherwise you're left with this Grovement test. And either Grovement test has to mean one of two things. Either it has to mean that only one particular place can be the Grovement, which is the way I understood it from their briefing. But as the Court, I think, is figuring out from this argument, you get an all heaps of troubles with contracts, employment, all kinds of other things where the injuries occur abroad, and how on earth is the Court to determine where the Grovement is? On the other hand, if Grovement is sort of a Grove Persons test, so that you can have many multiple places where a claim can be brought, then I'm at a loss to understand how is any improvement over the one element. How does it work with the domestic contract and ordinary domestic contract entered into in Nevada, and the breach of the contract, which consisted of a failure, for example, to deliver goods to San Francisco, took place in California, and the lawsuit is brought in Nevada. How does that work? They move, well, how does it happen? Under due process, you'd have jurisdiction in Nevada. I know that, but I mean, where does the Grovement? Yeah, yeah. Is that not come up as to what law applies as to a factor in foreign non-convenient? No, it doesn't. How do you decide what law applies? Contract doesn't say. There's a most significant relationship. Ah, most significant relationship. I see. And does it matter whether it's to the formation of the contract or is it to the breach? I think it's sometimes one and sometimes another. And what's the difference whether it's to one or the other? Pardon me? What's the difference? I mean, how does the Court decide? I'm simply pointing out that these kinds of problems are not unique to the international context. No, I think. There are as in many different legal circumstances, and courts have to decide what is the Grovement and sometimes that's difficult and sometimes it's not. Am I right about that? I've never seen this term used in the case law, and I think the other side was correct when they answered the way that it was. I don't know. You're the one who's, I'm not very knowledgeable, and I tend to believe you're more knowledgeable, and you're from asking you the question. Well, all I can do is honestly answer that I've never seen this test used in any choice of law analysis. I will have. If we're dealing with choice of law, is there any serious question of what law would govern the adequacy of OBV's boarding protocol or their platform design? Would that be any law other than Austria? Well, the ninth circuit held that California law applies in this case, and OBV has not challenged that holding. So as the case comes to this Court, California law applies for purposes of the one- Well, I'm asking you, never mind what the California Court said. We have an accident in Austria, and it's based on the allegation is the boarding protocol was negligently designed or the platform, the space between the train and the platform, negligently designed. What law would govern whether that platform was negligently designed, whether the boarding protocol or operating protocol was negligent? In all candor, Justice Ginsburg, there would be a pretty good argument that Austria law should apply. And it is important for the Court to understand that simply holding that a suit under the FSAA can be brought in this country does not mean that U.S. law applies. There's a separate choice of law analysis that can be made, and so OBV had the opportunity to make choice of law arguments and has decided not to. But remember, they can do choice of law analysis not only in terms of ordinary common law principles that my apply in a court, but there's a number of ways that a defendant in an OBV's position can protect itself in a case like this

. How do you decide what law applies? Contract doesn't say. There's a most significant relationship. Ah, most significant relationship. I see. And does it matter whether it's to the formation of the contract or is it to the breach? I think it's sometimes one and sometimes another. And what's the difference whether it's to one or the other? Pardon me? What's the difference? I mean, how does the Court decide? I'm simply pointing out that these kinds of problems are not unique to the international context. No, I think. There are as in many different legal circumstances, and courts have to decide what is the Grovement and sometimes that's difficult and sometimes it's not. Am I right about that? I've never seen this term used in the case law, and I think the other side was correct when they answered the way that it was. I don't know. You're the one who's, I'm not very knowledgeable, and I tend to believe you're more knowledgeable, and you're from asking you the question. Well, all I can do is honestly answer that I've never seen this test used in any choice of law analysis. I will have. If we're dealing with choice of law, is there any serious question of what law would govern the adequacy of OBV's boarding protocol or their platform design? Would that be any law other than Austria? Well, the ninth circuit held that California law applies in this case, and OBV has not challenged that holding. So as the case comes to this Court, California law applies for purposes of the one- Well, I'm asking you, never mind what the California Court said. We have an accident in Austria, and it's based on the allegation is the boarding protocol was negligently designed or the platform, the space between the train and the platform, negligently designed. What law would govern whether that platform was negligently designed, whether the boarding protocol or operating protocol was negligent? In all candor, Justice Ginsburg, there would be a pretty good argument that Austria law should apply. And it is important for the Court to understand that simply holding that a suit under the FSAA can be brought in this country does not mean that U.S. law applies. There's a separate choice of law analysis that can be made, and so OBV had the opportunity to make choice of law arguments and has decided not to. But remember, they can do choice of law analysis not only in terms of ordinary common law principles that my apply in a court, but there's a number of ways that a defendant in an OBV's position can protect itself in a case like this. First of all, they can put a choice of law provision in the ticket or in the contract or whatever might be an issue. Second of all, even as de Forum, Forum selection clauses can be put into tickets like this and contracts, and in fact they are. As the United States told the Court at the search stage of this case, all of these tickets now are governed by a Forum selection clause provision, so you'll never see a case like this again, not only in the railroad context, but even in the airline. And that works even though it's an adhesion contract and a small print. Under Carnival Cruise Lines, this Court's decision, those kinds of Forum selection clauses are perfectly enforceable. That would an add-on-money case, though. Well, I don't know why it would be different in this context, Justice Kennedy. Certainly, the government says that these are all governed by Forum selection clauses now, we think they are too. So what you're really deciding in this case, if I could end where perhaps I began, is you're not deciding transportation in this case, because all transportation cases are now covered by conventions and Forum selection clauses. What you're really deciding is what the law should be in the mainstream FSA case is like finance, like contracts, that's why Gibson Dunn has filed a brief on behalf of a large hedge fund that says, we do business all the time with foreign sovereigns, and we're very worried that if the court adopts this gravam and based upon, we will not be able to enforce contracts and duties in this country that have given rise under negotiations in this country and then are breached abroad. Employment situations like the hypothetical we give in our brief, where a United States citizen is hired as an engineer to go do oil and gas exploration and then something happens abroad. Those cases have always been brought in this country. And if this court adopts the Groveman test, what you'll be saying is that courts now have some amorphous test that would seem, especially if there's only a single Groveman, that would seem to bounce all of these cases out of the United States courts, which would be dramatic. Sotomayor. Well, suppose the Court simply said buying a ticket from an agent in the United States is not an off-period. We don't adopt any. The question is, what does based on mean? And the Court could say, based on, is not based on if all that happened in the United States is the purchase of the ticket. We don't have to buy any Groveman or anything else. Well, I think there's two reasons why you couldn't just limit it to that, Justice Ginsburg. First, as a legal matter, our claim depends on the duty that arose when that ticket's purchase was made. And I don't see any legal way to distinguish duties that arose in a ticket sale from other kinds of duties that arise in all kinds of other marketing and contract settings. And second of all, just as a matter of common sense, remember, let's go back to where we began

. First of all, they can put a choice of law provision in the ticket or in the contract or whatever might be an issue. Second of all, even as de Forum, Forum selection clauses can be put into tickets like this and contracts, and in fact they are. As the United States told the Court at the search stage of this case, all of these tickets now are governed by a Forum selection clause provision, so you'll never see a case like this again, not only in the railroad context, but even in the airline. And that works even though it's an adhesion contract and a small print. Under Carnival Cruise Lines, this Court's decision, those kinds of Forum selection clauses are perfectly enforceable. That would an add-on-money case, though. Well, I don't know why it would be different in this context, Justice Kennedy. Certainly, the government says that these are all governed by Forum selection clauses now, we think they are too. So what you're really deciding in this case, if I could end where perhaps I began, is you're not deciding transportation in this case, because all transportation cases are now covered by conventions and Forum selection clauses. What you're really deciding is what the law should be in the mainstream FSA case is like finance, like contracts, that's why Gibson Dunn has filed a brief on behalf of a large hedge fund that says, we do business all the time with foreign sovereigns, and we're very worried that if the court adopts this gravam and based upon, we will not be able to enforce contracts and duties in this country that have given rise under negotiations in this country and then are breached abroad. Employment situations like the hypothetical we give in our brief, where a United States citizen is hired as an engineer to go do oil and gas exploration and then something happens abroad. Those cases have always been brought in this country. And if this court adopts the Groveman test, what you'll be saying is that courts now have some amorphous test that would seem, especially if there's only a single Groveman, that would seem to bounce all of these cases out of the United States courts, which would be dramatic. Sotomayor. Well, suppose the Court simply said buying a ticket from an agent in the United States is not an off-period. We don't adopt any. The question is, what does based on mean? And the Court could say, based on, is not based on if all that happened in the United States is the purchase of the ticket. We don't have to buy any Groveman or anything else. Well, I think there's two reasons why you couldn't just limit it to that, Justice Ginsburg. First, as a legal matter, our claim depends on the duty that arose when that ticket's purchase was made. And I don't see any legal way to distinguish duties that arose in a ticket sale from other kinds of duties that arise in all kinds of other marketing and contract settings. And second of all, just as a matter of common sense, remember, let's go back to where we began. This is the commercial activity exception. If they weren't selling tickets, it wouldn't even be commercial to begin with. So it would be a highly odd holding to say the one thing that makes this commercial is what prevents it from being brought in the United States. What makes it commercial is a railroad doing the same thing a private railroad would do. It's businesses operating a railroad. That's right, Justice Ginsburg. And if you want to ask the question in terms of whether a private company would be subject jurisdiction under the same settings here, at least all you have to hold is that OBB should be in the same shoes as a private company. Now, we say in our brief and in the Gibson brief in more detail why due process wouldn't stand in the way of jurisdiction there. But if you have any doubt about that, you can note that OBB has made a personal jurisdiction argument in the district court that the district court never reached. And so that is available on remand. The only thing before this court is sovereign immunity. And whether OBB is entitled to sovereign immunity for commercial acts in this country, in the teeth of a congressional statute that says in the Declaration of Purpose in Section 1602 that foreign states doing commercial activities in this country should not be entitled to sovereign immunity. And then in Section 1606 says what we want to do is help. And we say, look, they are exact words. Are they lovable for activity to place this country? They are lovable for the breach of the contract, the breach of the contract to place in Austria. End of case. But why not? Because what the definition of in the United States, Justice Breyer, and this is sub-D of 1603C, says that, I'm sorry, it's sub-E of 1603C, says that in the United States is defined as substantial contact with the United States. And so that can occur in whole or in part in this country, and in part, I'm sorry, and part includes the ticket sale. Thank you, Council. Mr. Basel-Basel-Berogrio, you have three minutes remaining. Thank you, Mr

. This is the commercial activity exception. If they weren't selling tickets, it wouldn't even be commercial to begin with. So it would be a highly odd holding to say the one thing that makes this commercial is what prevents it from being brought in the United States. What makes it commercial is a railroad doing the same thing a private railroad would do. It's businesses operating a railroad. That's right, Justice Ginsburg. And if you want to ask the question in terms of whether a private company would be subject jurisdiction under the same settings here, at least all you have to hold is that OBB should be in the same shoes as a private company. Now, we say in our brief and in the Gibson brief in more detail why due process wouldn't stand in the way of jurisdiction there. But if you have any doubt about that, you can note that OBB has made a personal jurisdiction argument in the district court that the district court never reached. And so that is available on remand. The only thing before this court is sovereign immunity. And whether OBB is entitled to sovereign immunity for commercial acts in this country, in the teeth of a congressional statute that says in the Declaration of Purpose in Section 1602 that foreign states doing commercial activities in this country should not be entitled to sovereign immunity. And then in Section 1606 says what we want to do is help. And we say, look, they are exact words. Are they lovable for activity to place this country? They are lovable for the breach of the contract, the breach of the contract to place in Austria. End of case. But why not? Because what the definition of in the United States, Justice Breyer, and this is sub-D of 1603C, says that, I'm sorry, it's sub-E of 1603C, says that in the United States is defined as substantial contact with the United States. And so that can occur in whole or in part in this country, and in part, I'm sorry, and part includes the ticket sale. Thank you, Council. Mr. Basel-Basel-Berogrio, you have three minutes remaining. Thank you, Mr. Chief Justice. May I please the Court? Much of our discussion today has been in separating the torts from that contractual claims here in this case implied warranty claims. Let me tell you why I believe it's a bad idea to split claims and causes of action. This Court decided recently a case called Pimentel in which that Republic of the Philippines had sovereign immunity. But there were also a number of other defendants that did not enjoy sovereign immunity. And this Court, taking into consideration important issues such as international comedy, decided that under Rule 19, the entire lawsuit had to be dismissed, including as to non-sovern entities in order to give full effect to the sovereign immunity of the Republic of the Philippines. In light of that holding, it would make little sense that when that defendant has the right to invoke immunity, that we would split the causes of action so that some of them would proceed in Austria and some of them would proceed in the United States. You're suggesting the base to palm determination is not done on a claim-by-claim basis. You look at the entire complaint. That's fine. And the gravement of the entire complaint? Yes, exactly. You're on our knife and the circuit courts and the state courts have all understood what gravement means. They know what it means. And if we just took anybody off the street here and we asked them, why is that respondent suing? Each person would say because she was injured in a terrible accident in Austria. What if the only claim were the breach of warranty claim? Then we would have to ask, where did the breach occur? I suggest this Kagan's question. I would answer if the breach occurred in Austria, then the claim would arise in Austria. Now the warranty in terms of the duty of care, there is no duty of care until she arrives at the station and tries to board the train. And even if she didn't have a ticket at all, the record establishes that we would still owe her a duty of care. What if she also had an addition to the claim she has asserted a conventional breach of contract claim? She said that when she tried to get on the train, they said, no, your URL passes and doesn't let you get on free, you have to pay an additional amount. That would have said- We look to the gravement of the whole thing and we say, well, the tort claims are in Austria and therefore she can't bring this breach of contract claim in the United States. Well, she had been hurt in an addition to that they would have told her- Well, exactly what happened here. Plus, she said they made me pay extra

. Then the gravement would still be Austria because that's where all those events took place. Thank you, counsel. The case is submitted