Carol Sachs as a resident of California who, in March 2007, purchased a Eurail pass over the Internet from The Rail Pass Experts, a Massachusetts-based travel agent. Eurail passes allow their holders unlimited passage for a set period of time on participating Eurail Group railways, including OBB Personenverkeur, the Austrian state-owned railway. In April 2007, Sachs arrived at the Innsbruck train station, planning to use her Eurail pass to ride an OBB train. As she attempted to board the train, Sachs fell from the platform onto the tracks. OBB's moving train crushed her legs, both of which had to be amputated above the knee.
Sachs sued OBB in the United States District Court for the Northern District of California, asserting five claims: (1) negligence; (2) strict liability for design defects in the train and platform; (3) strict liability for failure to warn of those 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. ... OBB claimed sovereign immunity and moved to dismiss the suit for lack of subject matter jurisdiction.
1. Would Ms. Sachs have had a claim in U.S. courts if the claim had been a contract action for a refund of the amount she paid for the Eurail pass based upon The Rail Pass Experts' failure to disclose the conditions at the Innsbruck train station?
2. Based on the reasoning in OBB v. Sachs, if the Saudi employer, in the Nelson case Chief Roberts referred to, had failed to pay Mr. Nelson the amounts he had contracted to pay, would Mr. Nelson been barred from suing in the United States by the FSIA? Would a U.S. court have had jurisdiction to hear such a suit? What implications does that have for a foreign state that executes a contract in the United States which it breaches through a nationalization in its own country?
3. What would have been the result in OBB v. Sachs if Ms. Sachs had not forfeited her argument that her claim was based upon "OBB's overall commercial railway enterprise" in the United States, rather than the single purchase of a Eurail pass? What implications would that have for a national government that regularly raises funds for projects in the United States?