Graybar Elec Co Inc v. China Natl Offshr

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 29, 2003
• Docket: 02-20882
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS May 29, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-20882

GRAYBAR ELECTRIC COMPANY, INC.,

Plaintiff-Appellant,

versus

CHINA NATIONAL OFFSHORE OIL CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas (H-02-CV-100)

Before WIENER and BARKSDALE, Circuit Judges, and FERGUSON, District Judge*.

PER CURIAM:**

The district court held China National Offshore Oil

Corporation (CNOOC) entitled to immunity under the Foreign

Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602, et seq. Graybar

claims: CNOOC waived its right to claim immunity; alternatively,

under 28 U.S.C. § 1605(a)(2), this action falls within an exception

to immunity.

* District Judge of the Western District of Texas, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Having heard oral argument, and based upon our review of the

briefs and pertinent parts of the record, we hold: CNOOC did not

waive its right to assert immunity, because, inter alia, in its

answer it claimed lack of subject matter jurisdiction; and this

action does not fall within § 1605(a)(2).

In holding CNOOC entitled to immunity, the district court

reasoned that the third clause of § 1605(a)(2) (immunity exception

“in which the action is based 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”) required the requisite act be non-commercial.

It is not necessary to decide this issue because, for this action,

the exception does not apply whether the requisite act is

commercial or non-commercial. On the other hand, the § 1605(a)(2)

third clause exception has apparently been applied to commercial

acts. See, e.g., Republic of Arentina v. Weltover, 504 U.S. 607

(1992) (third clause applied to extension of payment schedules for

bonds); Byrd v. Corporacion Forestal y Industrial de Olancho S.A.,

182 F.3d 380, 389 (5th Cir. 1999) (paraphrasing third clause as “a

commercial activity carried on outside the United States that has

a direct effect in the United States”); Voest-Alpine Trading USA

Corp. v. Bank of China, 142 F.3d 887 (5th Cir. 1998) (third clause

2 applied to failure of foreign bank to remit funds to designated

American corporation).

AFFIRMED