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ROBERT BOSCH CORP. v. AIR FRANCE

May 5, 1989

ROBERT BOSCH CORPORATION, subrogor, and FIREMAN'S FUND INSURANCE COMPANY, subrogee, Plaintiffs,
v.
AIR FRANCE, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES RONALD NORGLE, UNITED STATES DISTRICT JUDGE.

 Before the court is defendant's motion to dismiss for lack of jurisdiction pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611 ("FSIA"), or, in the alternative, on grounds of forum non conveniens. For the following reasons, the court finds that it has subject matter jurisdiction, and that the matter should not be dismissed on the grounds of forum non conveniens.

 FACTS

 This action was filed by Fireman's Fund Insurance Company ("Fireman's Fund"), as subrogee of Robert Bosch Corporation ("Bosch"), against Compagnie Nationale Air France ("Air France"). Plaintiff seeks recovery for damage to a shipment of electrical relays allegedly carried by Air France for Bosh from Nuremberg, Germany to Chicago, Illinois. The Complaint pleads federal question jurisdiction under the Warsaw Convention. 49 Stat. 3000.

 The Complaint alleges that on February 12, 1988, Air France issued to Bosch an air waybill, No. 057-8332-8991. The air waybill was issued when Air France took possession of fifteen cartons of electronic relays (the "product") from Bosch in Nuremberg, Germany for transport to Chicago. Air France intended to transport the product by truck from Nuremberg to Paris, and then by air from Paris to Chicago. The truck carrying the product was involved in an accident between Nuremberg and Paris. Plaintiff claims that as a result of the truck accident the product arrived in the United States damaged.

 JURISIDICTION

 Defendant alleges immunity pursuant to the FSIA. Plaintiffs do not dispute that Air France is an instrument of the sovereign state of France and, as such, is entitled to whatever immunity is conferred by the FSIA. However, plaintiffs argue that the FSIA does not immunize Air France from this action. Specifically, plaintiffs invoke § 1605(a)(2), which provides:

 
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case -
 
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state [first clause]; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere [second clause]; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States [third clause].

 If any one of these three clauses is applicable, the foreign state does not receive immunity. The court finds that in this case the first clause of § 1605(a)(2) excludes defendant from jurisdictional immunity.

 It is undisputed that this action is based on "commercial activity." In determining whether under the first clause the commercial activity at issue was "carried on in the United States, the particular conduct in question need not have taken place in the United States." Sugarman v. Aeromexico, 626 F.2d 270, 273 (3d Cir. 1980). Rather, the preferred approach to interpreting the first clause is what has been labelled the "nexus test": "whether there is a connection between the foreign defendant's commercial activity in the United States and the acts giving rise to the plaintiff's claims." Barnett v. Iberia Air Lines of Spain, 660 F. Supp. 1148, 1151 (N.D. Ill. 1987); see also Barkanic v. CAAC, 822 F.2d 11, 13 (2nd Cir. 1987); Vencedora Oceanica Navigacion v. Compagnie Nationale Algerienne De Navigation, 730 F.2d 195, 200 (5th Cir. 1984); Sugarman, 626 F.2d at 272-73.

 Such a "nexus" exists in this case. Defendant's commercial activity in the United States was its contractual relations with an American corporation to deliver products to the United States from Germany and receive payment for that delivery. The acts giving rise to plaintiffs' claims were defendant's alleged failure to protect the products from damage while en route from Germany to the United States. Clearly, there is a connection between the two.

 Moreover, the cases cited by the parties support this conclusion. In Sugarman, a passenger sued the national airline of Mexico for damages resulting from a delay in his flight from Mexico to New York. The court held that there was "a nexus between Sugarman's grievance and Aeromexico's commercial activity carried on in the United States" because the flight was bound for New York. 626 F.2d at 272-73. ...


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